Barnes v. United States of America

Filing 18

OPINION, MEMORANDUM AND ORDER -IT IS HEREBY ORDERED that the Motion to Vacate, Set Aside or Correct Sentence [Doc. # 1 ] is DENIED and DISMISSED in all respects. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.. Signed by District Judge Henry Edward Autrey on 08/20/2019. (JMP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES E. BARNES,

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:14CV1249 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside
or Correct Sentence pursuant to 28 U.S.C. § 2255 filed on July 14, 2014. The
United States of America filed its response on May 15, 2019. For the reasons set
forth below the Motion will be denied and no hearing will be granted.
Procedural History
On July 14, 2014, Petitioner filed his Motion to Vacate, Set Aside or Correct
Sentence pursuant to Title 28, United States Code, Section 2255. On August 8,
2014, Petitioner moved to withdraw his Section 2255 motion, which was granted
by the Court. Petitioner thereafter sought permission with the United States Court
of Appeals for the Eighth Circuit to file a successive Section 2255 motion. On July

21, 2016, the Eighth Circuit denied the motion and ordered this Court to consider
the initial Section 2255 Motion. On April 15, 2019, this Court ordered the United
States to show cause why the relief requested in Barnes’ initial Section 2255
motion should not be granted.
On May 9, 2012, Petitioner was charged by a federal grand jury with
conspiring with a co-defendant to distribute and possess with intent to distribute in
excess of 28 grams of cocaine base (Count One); distribution of a quantity of
cocaine base on September 28, 2010 (Count Two); and distribution of in excess of
28 grams of cocaine base on October 6, 2010 (Count Three), in violation of Title
21, United States Code, Section 841(a)(1). Petitioner waived in writing and orally
his right to file pre-trial motions. Accepting the waiver, Judge David D. Noce
found:
At the evidentiary hearing, defendant James Barnes appeared in open court,
with counsel, and advised the undersigned that he had decided not to raise
any issues by way of pretrial motions. Here thereupon in open court under
oath voluntarily waived his rights to file pretrial motions and to have a
pretrial hearing in this case at this time and in the future.
Pursuant to a Guilty Plea Agreement (the “Agreement”), Petitioner pleaded
guilty to the conspiracy charged in Count One on July 19, 2012. The parties agreed
that Petitioner was accountable for between 28 grams and 112 grams of cocaine
base, resulting in a Base Offense Level of 26 pursuant to United States Sentencing
Guidelines (“U.S.S.G.”) Section 2D1.1(c)(7). Petitioner expressly understood that
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if he were deemed to be a Career Offender under Section 4B1.1, his Base Offense
Level would be 34. Petitioner further agreed that he had “discussed the provisions
of 2D1.1 and 4B1.1 over with his attorney and . . . under[stood] the affect these
provisions have on [his] Guidelines range of imprisonment.
With respect to Barnes’ waiver of appeal, the Agreement provided:
A.
Appeal: The Defendant has been fully apprised by defense counsel of
the Defendant’s rights concerning appeal and fully understands the right to
appeal the sentence under Title 18, United States Code, Section 3742.
i.
Non-Sentencing Issues: The parties waive all rights to appeal
all non-jurisdictional, non-sentencing issues, including, but not limited to,
any issues relating to pretrial motions, discovery and the guilty plea.
ii. Sentencing Issues: In the event the Court accepts the plea, accepts
the U.S. Sentencing Guidelines Total Offense Level agreed to herein, and,
after determining a Sentencing Guidelines range, sentences the Defendant
within or below that range, then, as part of this agreement, the Defendant
hereby waives all rights to appeal all sentencing issues other than Criminal
History. Similarly, the United States hereby waives all rights to appeal all
sentencing issues other than Criminal History, provided the Court accepts
the plea, the agreed Total Offense Level and sentences the Defendant within
or above that range.
Petitioner also waived “all rights to contest the conviction or sentencing in
any post-conviction proceeding, including one pursuant to Title 28, United States
Code, Section 2255, except for claims of prosecutorial misconduct or ineffective
assistance of counsel. Petitioner acknowledged in the Agreement that he was
waiving, among other things, his right “to file pretrial motions, including motions
to suppress or exclude evidence.”
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The Agreement further provided that Petitioner was “fully satisfied with the
representation received” from his defense counsel Kristy Ridings, and that Ms.
Ridings had “completely and satisfactorily explored all areas which he ha[d]
requested relative to the United States’ case and any defenses.” Petitioner also
acknowledged entering into the Agreement “voluntarily” and of his “own free
will.”
On June 5, 2013, a Presentence Investigation Report (“PSR”) was submitted.
Consistent with the Agreement, the PSR calculated a Base Offense Level of 26
pursuant to Section 2D1.1(c)(7). However, because Petitioner had “at least two
prior felony convictions for controlled substance offenses,” he was classified as a
Career Offender pursuant to Section 4B1.1, resulting in a Base Offense Level of
34. With a Total Offense Level of 31 and a Criminal History Category VI, the
guidelines imprisonment range was 188 to 235 months. Petitioner did not file or
articulate any objections to the PSR.
On July 15, 2013, the Court sentenced Petitioner to a term of 94 months. A
timely pro se notice of appeal was filed on July 29, 2013. However, on November
12, 2013, Ms. Ridings filed a motion to dismiss the appeal. U.S. v. Barnes, No. 132694. Nevertheless, on July 15, 2014, Ms. Ridings filed an Anders brief and
subsequently moved to withdraw as appointed counsel. In the brief, Ms. Ridings
raised the following issues on behalf of Barnes: (1) the District Court abused its
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discretion in sentencing Petitioner to 94 months imprisonment; (2) defense counsel
was ineffective for failing to file motions under Amendment 750 pursuant to
Amendment 759; and (3) defense counsel was ineffective for failing to file pretrial
motions suppressing evidence obtained against Barnes using GPS tracking. On
August 8, 2014, Petitioner filed a pro se motion to withdraw his appeal. He
attached to his motion an affidavit stating that “after consultation with his attorney,
[he] knowingly and voluntarily withdraws his Notice of Appeal previously filed in
the above cause.” The Eighth Circuit granted the motion and dismissed the appeal
in accordance with Federal Rules of Appellate Procedure 42(b).
On July 14, 2014, Petitioner filed his initial Section 2255 Motion in Cause
No. 4:14CV01249 HEA. The Court ordered the United States to respond. Prior to
the due date for the response, Petitioner sought, and this Court granted him, leave
to withdraw his motion.
Petitioner was then denied authorization from the Eighth Circuit to file a
successive habeas request, in which he sought relief under Johnson, on July 21,
2016, in Cause No. 16-2833. The Eighth Circuit ordered this Court to consider the
motion as an initial Section 2255 motion.
Claims
Petitioner first raises ineffective assistance of counsel. He asserts counsel
was ineffective for failing to file a notice of appeal and in failing to properly
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address what information could or could not be used to determine whether
Petitioner qualified as a career offender.
Petitioner claims his rights under the Fourth Amendment were violated
when Federal agents used a GPS tracking device on his vehicles, when his phone
and stored data were searched without a warrant, and when his phone was pinged
without a warrant.
Petitioner raises what appears to be a claim that he is entitled to a sentencing
reduction under Amendment 759 and 18 U.S.C. § 3582(c)(2).
Finally, Petitioner seeks relief based on Johnson v. United States, 135 S.Ct.
2251.
Applicable Standards
A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on
the ground “that the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. In order to
obtain relief under § 2255, the Petitioner must allege a violation constituting “‘a
fundamental defect which inherently results in a complete miscarriage of justice.’”

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United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States
v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
Claims brought under § 2255 may also be limited by procedural default. A
Petitioner “cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255
motion if the issue could have been raised on direct appeal but was not.” Anderson
v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even constitutional or
jurisdictional claims not raised on direct appeal cannot be raised collaterally in a §
2255 motion “unless a petitioner can demonstrate (1) cause for the default and
actual prejudice or (2) actual innocence.” United States v. Moss, 252 F.3d 993,
1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “‘[u]nless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.’” Shaw v. United States, 24 F.3d
1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255).
Thus, a Petitioner is entitled to an evidentiary hearing “‘when the facts alleged, if
true, would entitle [the Petitioner] to relief.’” Payne v. United States, 78 F.3d
343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir.
1986)). The Court may dismiss a claim “without an evidentiary hearing if the claim
is inadequate on its face or if the record affirmatively refutes the factual assertions
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upon which it is based.” Shaw, 24 F.3d at 1043 (citing Larson v. United States, 905
F.2d 218, 220-21 (8th Cir. 1990)). “A Section 2255 motion ‘can be dismissed
without a hearing if (1) the petitioner's allegations, accepted as true, would not
entitle the petitioner to relief, or (2) the allegations cannot be accepted as true
because they are contradicted by the record, inherently 11 incredible, or
conclusions rather than statements of fact.’” Sanders v. United States, 341 F.3d
720, 722 (8th Cir. 2003) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th
Cir. 1995)), cert denied, 540 U.S. 1199 (2004).
Petitioner has “a heavy burden” in establishing ineffective assistance of
counsel pursuant to section 2255. DeRoo v. United States, 223 F.3d 919, 925 (8th
Cir. 2000). To succeed on an ineffective assistance of counsel claim, a movant
must show that counsel’s performance was deficient and that the deficient
performance prejudiced the movant’s case. Strickland v. Washington, 466 U.S.
668, 687 (1984); United States v. Sera, 267 F.3d 872, 874 (8th Cir. 2001); DeRoo,
223 F.3d at 925.
An attorney’s performance is deficient if it falls “below an objective
standard of reasonableness.” Strickland, at 687-88; Sera, 267 F.3d at 874. There
are two substantial impediments to making such a showing. First, there is a
“strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” United States v. Rice, 449 F.3d 887, 897 (8th
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Cir. 2006) (quoting Strickland, 466 U.S. at 689); Sera, 267 F.3d at 874. See also
Ford v. Lockhart, 905 F.2d 458, 462 (8th Cir. 1990) (evaluation of a claim of
ineffective assistance of counsel is highly deferential with a strong presumption
that counsel acted competently). Second, “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Rice, 449 F.3d at 897 (quoting Strickland, 466 U.S. at 690).
When reviewing counsel’s performance, a court must avoid using “the distorting
effects of hindsight” and must evaluate the reasonableness of counsel’s conduct
“from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.
Additionally, “any deficiencies in counsel’s performance must be
prejudicial to the defense in order to constitute ineffective assistance under the
Constitution.” Strickland, 466 U.S. at 692. The burden is on the movant to prove,
by a preponderance of the evidence, that ‘there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694; DeRoo, 223 F.3d at 925.
A Court does not have to determine whether a movant meets the
“performance” prong of the Strickland test. “‘If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.’” Young v. Bowersox, 161
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F.3d 1159, 1160 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 697), cert. denied,
528 U.S. 880 (1998). See also Kingsberry v. United States, 202 F.3d 1030, 1032
(8th Cir.) (if the movant makes an insufficient showing on one component, the
court need not address both components), cert. denied, 531 U.S. 829 (2000).
Discussion
Ineffective Assistance of Counsel for Failing to File Notice of Appeal
Petitioner claims counsel was ineffective for failing to file a notice of appeal
and for failing to file an appellate brief. As Respondent correctly argues, Petitioner
filed a notice of appeal and counsel filed an Anders brief on his behalf. Petitioner
himself filed a motion to withdraw his notice of appeal. The Eighth Circuit Court
of Appeals granted this Motion on August 14, 2014. Petitioner has failed to
present any support to show that he can satisfy the prejudice prong of Strickland
regarding the notice of appeal.
Ineffective Assistance of Counsel for Failing to Properly Address What
Information Could or Could Not be used to Determine Whether Petitioner
Qualified as a Career Offender.
The footings of the finding that Petitioner was a career offender were the
Federal drug convictions for possession with intent to distribute cocaine base and
possession with intent to distribute heroin in Cause No. 4:99CR572 DJS and
conspiracy to possess with intent to distribute cocaine and possession with intent to
distribute cocaine in Cause No. 4:06CR719 HEA. Both of these convictions
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clearly and unquestionable fall within the Career Offender controlled substance
conviction category of Section 4B1.1(b)(2). Counsel was not required to raise a
meritless objection.
Fourth Amendment Rights Violated for Placing GPS Tracking Device
Petitioner claims his rights under the Fourth Amendment were violated
when Federal agents placed a GPS tracking device on his vehicles. Petitioner did
not raise this issue on direct appeal. As such, his claims are procedurally defaulted
unless Petitioner demonstrates cause for failure and actual prejudice. Moss, 252 at
1001. Petitioner gives no reasons for the failure to raise this issue on appeal.
Indeed, Petitioner withdrew his direct appeal. Furthermore, Petitioner can show
no actual prejudice; the government did not use any evidence obtained from the
use of the GPS tracking device, therefore, there is no basis for the claim.
Likewise, Petitioner presents nothing which would establish his actual
innocence. Wiley, 245 F.3d at 752.
Fourth Amendment Rights Violated from the use of Evidence Obtained from
Petitioner’s Cell Phone
This issue is procedurally defaulted since Petitioner failed to raise it on
direct appeal. See, supra.
Sentence Reduction Under Amendment 759 and 18 U.S.C. § 3582(c)(2)

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In addition to this claim being procedurally defaulted, see supra, Petitioner
is not entitled to any relief based on Amendment 759. As Respondent correctly
argues, Petitioner was sentenced as a career offender, therefore he is not entitled to
a sentence reduction. United States v. Blackmon, 584 F.3d 1115, 1116 (8th Cir.
2009)(per curiam).
Johnson Relief
Petitioner was not sentenced under the residual clause of the Armed Career
Criminal statute, rather, his previous convictions were for controlled substance
offences and therefore he is not entitled to any relief as a result of United States v.
Johnson, ___ U.S. ___, 135 S.Ct. 2251 (2015).
Conclusion
Based upon the foregoing analysis, Petitioner has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief. The §2255 Motion for Post-Conviction Relief is denied.
Since the Court finds that Petitioner’s claims can be conclusively determined
based upon the parties’ filings and the records of the case, no evidentiary hearing
will be necessary.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Petitioner has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set Aside or
Correct Sentence [Doc. #1] is DENIED and DISMISSED in all respects.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
Dated this 20th day of August, 2019.

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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