McNeary v. United States of America
MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the motion of Reginald McNeary to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 1 is denied. IT IS FURTHER ORDERED that this Court will not issue a ce rtificate of appealability, as McNeary has not made a substantial showing of the denial of a federal constitutional right. IT IS FURTHER ORDERED that the Federal Public Defender's Office for this District and Kevin Curran's appointed repre sentation of Reginald McNeary is concluded, and the Federal Public Defender's Office for this District and Kevin Curran have no further obligations in this matter. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 10/14/2015. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:14 CV 1860 CDP
MEMORANDUM AND ORDER
This matter is before me on Reginald McNeary’s Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.
Pursuant to a written plea agreement, McNeary pled guilty to ten counts of
conspiracy, bank fraud, mail fraud, and receipt of stolen property in connection
with a scheme to defraud owners of their proprietary interest in motor vehicles. I
sentenced him to a total term of 72 months imprisonment, plus five years of
supervised release. Criminal Case No. 4:13CR143 CDP. McNeary did not
appeal. He then filed a § 2255 motion, alleging five grounds for relief.
I appointed the Federal Public Defender’s Office to represent McNeary in an
evidentiary held on September 3, 2015. McNeary appeared in person and with
counsel Kevin Curran at the hearing, testified, and presented two exhibits in
support of his claims. The government offered the testimony of McNeary’s prior
defense counsel, Paul Sims, who also appeared in person and testified. Based on
the evidence, the arguments of counsel, and the briefs filed on the § 2255 motion, I
conclude that McNeary’s motion is meritless and so I deny for the reasons that
Grounds for Relief
McNeary’s pro se § 2255 motion raises the following five grounds for
1) “Sentencing court abused its legal authority by failing to abide by
the open plea of 30 months and sentence above guideline range
without justification or cause. Judge Perry . . . went over the
sentencing guideline range of 30 months which was verbally promised
by counsel and the government in the plea agreement on December
2) Movant claims he signed the plea agreement on February 18, 2014,
two days after he tried to commit suicide, and that counsel told him he
was “legally agreeing to a term of 60 months on the ten count criminal
federal indictment with the downward departure in which movant
would receive a 30 month prison sentence;”
3) Ineffective assistance of trial counsel for: 1) failing to file a notice
of appeal; 2) failing to challenge the indictment; 3) failing to object to
the PSR; and 4) failing to “assist in his mental health state;” and
4) “Movant contends he was medically inducted under a medical
psychicated mood altering anti-depressant drug at the time of
sentencing which altered his judgment.” Movant claims he asked
counsel to postpone the sentencing hearing because he was on
medication, but counsel did not request a continuance. He also
alleges that the moved for a “mental psychiate evaluation before
sentencing after suicide attempt was placed on a mind-altering drug
(Risprodom) which affected movant’s judgment;” and
5) “Movant is legally seeking and is eligible for the (2) two point drug
guideline sentence level reduction for all non-violent level offenders.
Movant legally falls under the ‘safety valve’ due to his offense.
Movant is legally eligible and entitled to receive the two point level
drug guideline sentence level reduction based on movant’s crime is a
In his signed plea agreement, McNeary agreed to a Guidelines application
resulting in a total offense level of 23. He also agreed not to request a sentence
below the Guidelines range. McNeary waived his right to appeal nonjurisdictional, non-sentencing issues, including any issues relating to pretrial
motions, discovery, and his guilty plea, as well as all sentencing issues other than
criminal history. McNeary also waived any right to file a § 2255 motion except for
issues of prosecutorial misconduct or ineffective assistance of counsel.
I went over McNeary’s plea agreement with him during the change of plea
hearing on December 16, 2013. At that time, McNeary told me that he and the
Assistant United States Attorney agreed upon a total offense level of 23.
[4:13CR143 Doc. #955 at 15]. He also told me that he understood that he was
giving up his right to appeal his sentence (as long as he was sentenced within the
Guidelines range) and his right to file a post-conviction motion on any issue other
than prosecutorial misconduct or ineffective assistance of counsel. [Id. at 15-16].
I also told him that “there’s a possibility that . . . the Government might ask me to
give you a lower sentence, but there’s no promise or guarantee of that.” [Id. at 17].
When I asked him if he understood that, he said, “Yes, your Honor.” [Id.].
McNeary also confirmed that he understood that neither he nor the Assistant
United States Attorney could ask for a sentence outside the Guidelines range. [Id.
at 7]. Because McNeary admitted that he was guilty and knowingly and
voluntarily waived his rights, I accepted his guilty plea and set his sentencing for
March 19, 2014. [Id. at 19].
Between that time and his sentencing date, it was reported that McNeary had
attempted suicide while in jail. His attorney Paul Sims went to visit him in jail
after the so-called attempt.1 During that visit, Sims discussed the possibility of
requesting a mental examination and the risks associated with such a request,
including the fact that McNeary could lose his acceptance of responsibility points
and possibly subject himself to an obstruction of justice charge if the examiner
believed that McNeary was malingering. McNeary then admitted that he had faked
the suicide attempt to get transferred to a different housing unit. For that reason,
McNeary decided that he did not want to request a mental examination. After
speaking to McNeary, Sims believed that McNeary was not a danger to himself or
others and was mentally stable.
At some point after this visit, McNeary had a “Motion for Mental and
Some of the facts in this opinion come from the evidentiary hearing held on September 3, 2015.
To the extent McNeary’s testimony differs from Sims’ testimony, I credit Sims’ version of
events over McNeary’s.
Physical Examination” delivered to Sims. This motion, which was never filed in
the criminal case, was presented as movant’s Exhibit 1 at the evidentiary hearing.
McNeary testified that a “jailhouse lawyer” prepared this motion for him and that
he wanted Sims to file it but that Sims refused. This motion claims that McNeary
“intends to rely on the defense of insanity” and requests a mental examination. It
also claims that McNeary has extreme emotional disturbance, mental retardation,
and borderline schizophrenia.2 Sims testified that McNeary decided not to file this
motion after he discussed the possible consequences of filing such a motion,
including the loss of his acceptance of responsibility and a possible obstruction
Prior to sentencing, Sims saw McNeary again in jail to review the
Presentence Investigation Report, which calculated McNeary’s Total Offense
Level as 23 with a Criminal History Category VI and a Guidelines range of 92-115
months. After reviewing the report, McNeary told Sims that he had no objections
to the PSR, so Sims did not file any. Sims then told McNeary of his upcoming
sentencing hearing, and McNeary understood that his next court appearance would
be for sentencing.
McNeary appeared for sentencing as scheduled on March 19, 2014. Both
When I asked McNeary at the evidentiary hearing whether he had actually ever been diagnosed
as borderline schizophrenic, he evaded my question and stated instead that he had only read the
motion “to an extent” before it was given to Sims.
Sims and John Ware, the Assistant United States Attorney, spoke to McNeary
before the hearing began. McNeary seemed normal to both lawyers. Ware found
him “alert, bright, [with] a good memory.” Counsel came to my chambers before
the hearing began to discuss McNeary’s so-called suicide attempt. At that time,
both lawyers assured me that McNeary was mentally stable. Sims also told me that
he explained the risks associated with seeking a mental evaluation in this case and
that McNeary was not requesting a mental evaluation. After discussions with
counsel, I decided to proceed as scheduled with the sentencing hearing.
During the sentencing hearing, McNeary told me that he had gone over the
PSR with Sims and that he had no objections. Sims then requested a sidebar
conference to tell me about McNeary’s cooperation with the government. Ware
acknowledged that McNeary had cooperated but stated that his cooperation had not
yet reached the level of substantial assistance such that the government would file
a downward departure motion. However, Ware did recommend I sentence
McNeary at the low end of the Guidelines range and stated that if McNeary’s
information ultimately rendered substantial assistance to the government, then he
would file a Rule 35 motion3 after sentencing. Sims then mentioned McNeary’s
past cooperation with law enforcement, and McNeary told me he provided
Under Rule 35 of the Federal Rules of Criminal Procedure, upon motion of the government
made within one year of sentencing the court may reduce a defendant’s sentence for providing
substantial assistance in investigating or prosecuting another person. Fed. R. Crim. P. 35(b)(1).
information that stopped a robbery and gave information to law enforcement
officials in other districts regarding two homicides. He also told me that he
worked with the DEA in drug cases. Ware confirmed that McNeary had assisted
another Assistant United States Attorney in this district in an unrelated case, but
that cooperation happened well before the indictment in the pending case. Sims
then asked for a downward variance based on McNeary’s “long history” of
cooperation with law enforcement. McNeary told me he cooperated because he
“just wanted to help.”
I then spoke to McNeary about his previous testimony before me when he
was a teenager in an unrelated civil case. McNeary recalled the case, his testimony
before me, and the name of the poem that he read in court. When I told McNeary
that I remembered his poem, he told me that he continues to write and that he “just
shot Saving St. Louis, north St. Louis, with curbing the recidivism rate and
disenfranchised teenagers committing crimes and doing stuff . . . .” [4:13CR143
Doc. # 956 at 5].
After considering all the information provided to me at sentencing, including
McNeary’s “history and circumstances, including [his] difficult upbringing and
[his] serious substance abuse” as well as the nature of the crime, I granted Sims’
request for a variance and sentenced McNeary to 72 months imprisonment, which
was below the Guidelines range of 92 to 115 months. I then advised McNeary of
his appeal rights. [4:13CR143 Doc. # 956 at 12]. Sims requested that McNeary be
screened for the drug treatment program and a mental health facility, and I agreed
and made those recommendations to the Bureau of Prisons. Although McNeary
testified at the evidentiary hearing that he asked Sims in the courtroom at the
conclusion of his sentencing hearing to appeal, I credit Sims’ testimony that
McNeary never asked him to file an appeal on his behalf.
At the evidentiary hearing in this matter, McNeary conceded during his
testimony that he was not contesting the validity of his guilty plea. Kevin Curran
asked him whether he was “contesting [his] plea [because] I mean you pled
guilty,” and McNeary responded, “No, sir no, sir.” McNeary admitted to me (both
at the evidentiary hearing and during his plea colloquy) that he was not on any
psychotropic medication at the time he pled guilty. Moreover, the record
conclusively demonstrates that McNeary’s so-called suicide attempt was after he
pled guilty, not before as alleged in the § 2255 motion. Therefore, to the extent
Grounds 2 and 4 of the § 2255 motion challenge the validity of McNeary’s guilty
plea or allege that McNeary did not knowingly and voluntarily enter into the plea
agreement and plead guilty, they are summarily denied as abandoned by movant
and flatly contradicted by the record in this case.
In Ground 1, McNeary argues that I sentenced him above the Guidelines
range and the 30 month sentence in the plea agreement. Even if this claim could
properly be raised here, it is refuted by the facts in the case. McNeary’s plea
agreement contains no agreed-upon sentence (30 months or otherwise); instead, it
only contains a stipulated Total Offense Level of 23. Of course, I was not obligated
to follow this agreement and told McNeary so during the plea colloquy. [Case No.
4:13CR143 at Doc. # 955 at 14]. Nevertheless, McNeary’s Guidelines range was,
in fact, calculated in accordance with the plea agreement. The PSR calculated
McNeary’s Total Offense Level as 23, but with McNeary’s criminal history
category this resulted in a Guidelines range of 92-115 months, not 30 months as
McNeary mistakenly argues. And I actually sentenced McNeary 20 months below
the Guidelines range, not above it, when I gave him a sentence of 72 months. To
the extent Ground 1 alleges that Sims promised him a sentence of 30 months, that
claim will be addressed below with McNeary’s other ineffective assistance of
counsel claims. In all other respects, Ground 1 is denied.
Ground 3 of McNeary’s § 2255 motion alleges that Sims was ineffective for
failing to file a notice of appeal, challenge the indictment, object to the PSR, and
“assist in his mental health state.” The Sixth Amendment establishes the right of
the criminally accused to the effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 686 (1984). A movant faces a “heavy burden” to
establish ineffective assistance of counsel in the context of a § 2255. United States
v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To state a claim for ineffective
assistance of counsel, McNeary must prove two elements of the claim. First, he
“must show that counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the counsel
guaranteed the defendant by the Sixth Amendment.” Id. at 687. To decide this,
“judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689.
Courts seek to “eliminate the distorting effects of hindsight” by examining
counsel’s performance from counsel’s perspective at the time of the alleged error.
Id. Second, McNeary “must show that the deficient performance prejudiced the
defense.” Id. at 687. This requires him to demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. In the context of a guilty plea, a movant must
show that “there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). I need not address both components if McNeary
makes an insufficient showing on one of the prongs. Engelen v. United States, 68
F.3d 238, 240 (8th Cir. 1995).
Initially all of McNeary’s ineffective assistance claims, except the one
related to the failure to appeal, must be denied because McNeary does not contend
that he would have insisted on going to trial but for Sims’ alleged errors. In fact,
McNeary told me in the evidentiary hearing that he does not contest the validity of
guilty plea, which necessarily includes his intention to enter it. McNeary further
underscored his desire to plead guilty when he acknowledged on crossexamination during the evidentiary hearing that the plea agreement was “a good
deal” compared to going to trial. His claims fail for other reasons, too.
McNeary cannot show that Sims rendered ineffective assistance by failing to
file a motion challenging the indictment because he knowingly waived his right to
file pre-trial motions before United States Magistrate Judge Nannette A. Baker.
Moreover, McNeary does not explain what arguments Sims should have raised in
any pretrial motions. McNeary also fails to offer any evidence as to how this
alleged error prejudiced him as he has admitted to me that he is not challenging
any aspect of his valid guilty plea, which waived all challenges to nonjurisdictional defects and defenses, such as challenges to the sufficiency of the
indictment. See United States v. Frook, 616 F.3d 773, 778 (8th Cir. 2010). This
ineffective assistance claim fails, as does McNeary’s claim that Sims failed to file
objections to the PSR. Although less than clear, it appears McNeary is claiming
that Sims should have objected to the restitution amounts. This claim fails as I
credit Sims’ testimony that McNeary had no objections to the PSR. This is entirely
consistent with McNeary’s statements to me during the sentencing hearing that he
went over the PSR with Sims and had no objections to it. (Case 4:13CR143 CDP
Doc. # 956 at 2). Moreover, McNeary fails to specify what objections Sims should
have made to the restitution amounts, and he alleges no legal or factual errors in
the awarded restitution.4 As counsel cannot be ineffective for failing to make a
meritless argument, McNeary’s ineffective assistance claims fail. See Rodriguez v.
United States, 17 F.3d 225, 226 (8th Cir. 1994) (“[C]ounsel’s failure to raise a
meritless argument cannot constitute ineffective assistance.”). The same analysis
applies to Sims’ alleged failure to request a two-level “safety valve” departure,
object to his role in the offense, or request application of Amendment 782 (the
“Drugs Minus 2” Guideline amendment). Because McNeary was not eligible for
the “safety valve” departure or any reduction under Amendment 782 as a matter of
law,5 and he agreed in his guilty plea agreement to the enhancement for his role in
the offense, Sims cannot be ineffective for failing to raise these meritless
arguments. See Whitiker v. United States, 2010 WL 908474, at *2 (E.D. Mo. Mar.
9, 2009) (attorney cannot be ineffective for failing to argue for application of
safety valve in fraud and identity theft case because safety valve applies only to
controlled substances offenses).
McNeary next argues that Sims was ineffective for “failing to assist in his
To the extent McNeary seeks a “restitution reduction” in Ground 4, this request is summarily
denied as “a federal prisoner cannot challenge the restitution portion of his sentence under 28
U.S.C. § 2255 because this statute affords relief only to prisoners claiming a right to be released
from custody.” United States v. Bernard, 351 F.3d 360, 361 (8th Cir. 2003).
This is not a drug case, so Amendment 782 and the safety valve provision do not apply. See 18
U.S.C. § 3553(f). For this reason, Ground 5 of the instant motion is summarily denied.
mental health state.” This claim is related to Ground 4 of the § 2255 motion,
which directly raises the issue of McNeary’s mental health and competency at
sentencing. Although McNeary backed away from this position somewhat during
the evidentiary hearing, in his motion he claims that he was not competent at
sentencing because he was on psychotropic medication and his attorney was
ineffective for failing to inform me of his so-called suicide attempt or seeking a
mental health evaluation prior to proceeding with sentencing. “[A] defendant must
be competent at all stages of prosecution, including sentencing.” United States v.
Rickert, 685 F.3d 760, 765 (8th Cir. 2012). “A defendant is competent if he has
sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding and has a rational as well as factual understanding of the
proceedings against him.” Id. (internal quotation marks and citation omitted). A
competency hearing is required when “there is reasonable cause to believe that the
defendant may presently be suffering from a mental disease or defect rendering
him mentally incompetent to the extent that he is unable to understand the nature
and consequences of the proceedings against him or to assist in his defense.” 18
U.S.C. § 4241(a).
I find that McNeary was competent at sentencing and deny all grounds for
relief based on this argument (Ground 4 and part of Ground 3). As I did at the
time, I continue to credit the observations of Sims and Ware (each of whom met
with McNeary numerous times during the pendency of his criminal case), who
found McNeary to be mentally stable and alert prior to the sentencing hearing.
Contrary to McNeary’s assertions, Sims did inform me of his so-called suicide
attempt prior to the sentencing hearing, but after discussions with counsel about the
possible negative consequences to McNeary if a mental health evaluation was
requested, I made the decision to go ahead with sentencing. Although Sims did not
reveal such information to me at the time, I now know that McNeary faked his
suicide attempt in an effort to get moved to a different housing unit in the jail.
Therefore, any argument that his mental competence at the time of sentencing
could be called into question by his so-called suicide attempt is flatly contradicted
by the facts in this case.
My own observations of McNeary during the sentencing hearing were
entirely consistent with those of counsel. McNeary responded to all questions I
asked him, and during sidebar he explained, in detail and in his own words, the
extent of his prior cooperation with law enforcement officials. I also had a
conversation with McNeary about his prior appearance in my courtroom as a
teenager in an unrelated civil case. McNeary recalled the case and the name of the
poem he read aloud during that case without any lapses in memory. He also told
me that he made a documentary film and continues to write creatively. When it
suited McNeary, he was competent to provide me with information that might (and
ultimately did) persuade me to give him a lower sentence. Now faced with the
reality that the government did not file a Rule 35 motion on his behalf, McNeary
has decided to claim that he was incompetent at sentencing in an attempt to get a
lower sentence. This I will not allow him to do. McNeary was competent during
his guilty plea, he was competent at sentencing, and he was competent when he
testified before me at the evidentiary hearing on this § 2255 motion.
Because McNeary was competent, Sims was not ineffective for failing to
request a mental health examination prior to sentencing. Although McNeary now
complains that Sims refused to file the “Motion for Mental and Physical
Examination” submitted as Exhibit 1 at the evidentiary hearing, McNeary cannot
demonstrate that this amounted to deficient performance. The motion contained
numerous factual misstatements and legal errors, and as previously explained to
McNeary by Sims, requesting a mental health examination based on a faked
suicide attempt would have exposed McNeary to numerous negative consequences,
such as the loss of his acceptance of responsibility and a possible obstruction
charge. Sims was not ineffective for failing to file such a meritless and potentially
damaging motion, particularly since I credit his testimony that McNeary told him
not to make such a request.
McNeary also alleges that Sims was ineffective for failing to file a notice of
appeal after being requested to do so. A lawyer’s failure to file a requested appeal
automatically satisfies the deficient-performance prong of Strickland, and no
showing of prejudice is required. Witthar v. United States, 793 F.3d 920, 922 (8th
Cir. 2015). However, for such a claim to succeed, movant must demonstrate that
he instructed counsel to file an appeal. Barger v. United States, 204 F.3d 1180,
1182 (8th Cir. 2000). Here, after holding the required evidentiary hearing, I credit
Sims’ testimony over McNeary’s that McNeary never asked him to file an appeal
on his behalf. McNeary’s testimony was simply not credible. Instead, I believe
Sims that McNeary was not upset about his sentence – which was significantly
below the bottom of the Guidelines – and that he never asked him to appeal, either
in the courtroom immediately after the sentencing hearing or at any other time. As
was discussed during the sentencing hearing, at that time there was still the
possibility that the government would file a Rule 35 motion if McNeary’s
cooperation rose to the level of substantial assistance.
During the evidentiary hearing, it became clear that McNeary’s real
complaint in this case was that he did not receive a downward departure motion
from the government relating to his cooperation. Yet the plea agreement
conclusively demonstrates that the government was not required to file a motion,
either before sentencing or after, to reduce McNeary’s sentence for his “substantial
assistance.” The decision whether or not to request such a reduction rests
“entirely in the hands of the government.” Tinajero-Ortiz v. United States, 635
F.3d 1100, 1105 (8th Cir. 2011). For this reason, McNeary cannot obtain § 2255
relief based on the government’s refusal to file a substantial assistance motion
absent an unconstitutional motive or bad faith, neither of which has even been
alleged, much less proven, in this case. See id. McNeary was offered the
opportunity by Ware to enter into a cooperation agreement related to this case but
he refused, preferring instead to roll the dice regarding his potential indictment.
Once he was indicted, McNeary tried to cooperate in an effort to reduce his
sentencing by providing information about an unrelated potential drug deal, but
that information ultimately did not pan out. McNeary did not receive a downward
departure motion because the information he provided in hopes of getting one did
not amount to “substantial assistance.” Had McNeary entered into a cooperation
agreement when it was offered to him, the result might have been very different.
But McNeary chose not to do so and must live with the consequences of his
Where, as here, the defendant did not request or instruct his trial attorney to
appeal, “the court considering a claim of ineffective assistance of counsel must
then determine whether counsel consulted with the defendant about an appeal and,
if not, whether the failure to consult was unreasonable.” Parsons v. United States,
505 F.3d 797, 798 (8th Cir. 2007) (citing Roe v. Flores-Ortega, 528 U.S. 470
(2000)). “Counsel has a constitutionally imposed duty to consult where there is a
reason to think either (1) that a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for appeal), or (2) that this
particular defendant reasonably demonstrated to counsel that he was interested in
appealing.” Parsons, 505 F.3d at 798 (quoting Flores-Ortega, 528 U.S. at 480)
(internal alteration and quotation marks omitted).
Here, I have already found that McNeary never instructed or requested Sims
file an appeal, nor did he reasonably demonstrate to Sims that he was interested in
appealing. I also credit Sims’ testimony that he discussed McNeary’s waiver of
appellate rights with him and that McNeary understood he was waiving his
appellate rights “except for if . . . I didn’t do my job correctly or if the U.S.
Attorney’s office did something underhanded.” I also apprised McNeary of his
appeal rights, including his agreement to waive appeal, at the plea and sentencing
hearings, and McNeary told me he understood these rights and that he was waiving
them. Given that Sims successfully argued for and obtained a variance of 20
months below the Guidelines (despite the plea agreement specifically prohibiting
McNeary from seeking a below Guidelines-range sentence) and there was a
possibility that the government would file a Rule 35 motion, McNeary cannot
demonstrate that Sims would have any reason to think a rational defendant would
want to appeal under those circumstances. To the contrary, Sims could easily
conclude that a rational defendant would not want to appeal under those
circumstances, especially given the potential negative consequences to McNeary
should he file a notice of appeal:
[A] defendant generally has nothing to gain by filing an appeal on a
waived ground. She does, however have something to lose. In many
plea agreements, the Government makes concessions in exchange for
a defendant’s guilty plea and related waivers, such as dismissing
counts or agreeing not to bring additional charges. A defendant’s
breach of the promise not to appeal or seek collateral review places
the Government’s concessions in jeopardy. The Government could
seek to reinstate dismissed counts or bring additional charges related
to the defendant’s underlying acts. In addition, bringing a waived
appeal or collateral attack could demonstrate to the court that the
defendant has not accepted responsibility and thereby allow the court
to rescind a sentencing-guidelines reduction under USSG § 3E1.1.
Witthar, 793 F.3d at 925 (internal citations omitted) (Gruender, J.) (concurring).
McNeary certainly faced all these risks had he appealed despite his valid waiver.
Because McNeary cannot demonstrate that Sims was ineffective, Ground 3 of his §
2255 motion fails.
McNeary also argues that Sims promised him a sentence of 30 months.
Again, I credit Sims’ testimony that he never made such a promise to McNeary and
reject any claim for relief based on this allegation. During the evidentiary hearing,
McNeary also testified to numerous other instances of alleged attorney error, such
as claiming Sims did not explain the Sentencing Guidelines, go over the PSR with
him, or inform him that his sentencing hearing was actually a sentencing hearing.
Even if I construed this testimony as raising additional claims of ineffective
assistance of counsel, I would deny the claims and credit Sims’ testimony, not
McNeary’s, on these issues. Sims went over the Sentencing Guidelines and the
PSR with McNeary, who clearly knew he was in court for sentencing on the day of
the sentencing hearing. Although McNeary complains that Sims should have
called law enforcement officials to testify on his behalf at the sentencing hearing,
he admits that all the information related to his cooperation was presented to me
during the sidebar conference. McNeary also argues that Sims should have
presented information about his physical health during sentencing. However, I
already had information related to McNeary’s physical condition – including the
fact that he had been shot twice – before me as it was included within the PSR.
McNeary fails to explain what additional information Sims should have provided
to me about his physical condition, or how this information would have impacted
his sentence. In fashioning McNeary’s sentence, I considered all relevant factors,
including the information set out in the PSR and the evidence of his cooperation
presented during the sentencing hearing. After taking into account all relevant
factors, I varied 20 months below the bottom of the Guidelines range. Sims
advocated ably on behalf of his client, and McNeary has not shown that Sims
rendered ineffective assistance of counsel in any aspect of his case. For these
reasons, Ground 3 of his § 2255 motion fails.
As McNeary has not made a substantial showing of the denial of a federal
constitutional right, this Court will not issue a certificate of appealability. See Cox
v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878,
882-83 (8th Cir. 1994)) (substantial showing must be debatable among reasonable
jurists, reasonably subject to a different outcome on appeal, or otherwise deserving
of further proceedings).
IT IS HEREBY ORDERED that the motion of Reginald McNeary to
vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255  is denied.
IT IS FURTHER ORDERED that this Court will not issue a certificate of
appealability, as McNeary has not made a substantial showing of the denial of a
federal constitutional right.
IT IS FURTHER ORDERED that the Federal Public Defender’s Office for
this District and Kevin Curran’s appointed representation of Reginald McNeary is
concluded, and the Federal Public Defender’s Office for this District and Kevin
Curran have no further obligations in this matter.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 14th day of October, 2015.
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