Bailey v. USA
Filing
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OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence and the Supplement thereto, [Doc. No. 1 ], is DENIED. IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right. A separate judgment is entered this same date. Signed by District Judge Henry Edward Autrey on 3/20/18. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANTONIO BAILEY,
Movant,
vs.
UNITED STATES OF AMERICA,
)
)
)
)
) Case No: 4:14CV2015 HEA
)
)
)
Respondent.
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Antonio Bailey’s Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United
States of America has responded to the motion, pursuant to the Court’s Show
Cause Order. Movant has filed a Traverse. For the reasons set forth below, the
Motion to Vacate is denied.
PROCEDURAL HISTORY
On June 6, 2012, a grand jury returned an indictment charging Movant with
possession with the intent to distribute in excess of 28 grams of cocaine base
(crack); possession of a firearm in furtherance of a drug trafficking crime;
maintaining a drug-involved premises; and felon in possession of a firearm.
On July 17, 2012, Petitioner filed a waiver of pretrial motions. This waiver
was withdrawn by newly retained counsel. A motion to suppress evidence and a
memorandum in support were filed on behalf of Movant on January 30, 2013. The
government opposed the Motion. Judge Noce issued a Report and
Recommendation that the Motion to Suppress be denied. This Court overruled
Movant’s objections and denied the Motion.
Movant moved to terminate counsel on June 7, 2013. The Court granted the
motion and appointed counsel.
On July 29, 2013, Movant entered a plea of guilty, pursuant to a written plea
agreement. The written Plea Agreement provided that Petitioner agreed that the
search of his residence was conducted pursuant to a “lawful search warrant.”
Further, Movant waived all rights to appeal any issues related to pretrial motion
and the right to file pretrial motions, including motions to suppress evidence.
Movant also attested that he was fully satisfied with the representation provided by
defense counsel. In the Plea Agreement and the plea colloquy with this Court at
the change of plea hearing, Movant stated that he entered into the plea agreement
and the guilty plea voluntarily and of his own free will because he was in fact
guilty of the charges.
On November 14, 2013, the Court sentenced Movant to 180 months
imprisonment. Movant did not appeal his sentence.
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Movant filed this Motion for Post-Conviction Relief pursuant to Title 28
U.S.C. Section 2255 on December 5, 2014.
STANDARD FOR RELIEF UNDER 28 U.S.C. §2255
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 movant must allege a violation constituting “‘a
fundamental defect which inherently results in a complete miscarriage of justice.’”
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
movant “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
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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)).
DISCUSSION
Right to Evidentiary Hearing
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 movant is entitled to an evidentiary hearing “‘when the facts alleged, if
true, would entitle [the movant] 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
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)). Since the Court finds that Movant’s claims can
be conclusively determined based upon the parties’ filings and the records of the
case, no evidentiary hearing will be necessary.
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner=s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. ' 2255 rather than on direct appeal.
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United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy,
560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective
assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658
(1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail on an
ineffective assistance of counsel claim, a convicted defendant must first show
counsel=s performance Afell below an objective standard of reasonableness.@
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing Athere is a reasonable probability that, but for
counsel=s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a Ashowing that counsel made errors so serious that counsel was not functioning as
the >counsel= guaranteed the defendant by the Sixth Amendment.@ Id. Review of
counsel=s performance by the court is Ahighly deferential,@ and the Court presumes
Acounsel=s conduct falls within the wide range of reasonable professional
assistance.@ Id. The court does not Asecond-guess@ trial strategy or rely on the
benefit of hindsight, id., and the attorney=s conduct must fall below an objective
standard of reasonableness to be found ineffective, United States v. Ledezma5
Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged
deficient performance) would have been rejected, counsel's performance is not
deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
Aeliminate the distorting effects of hindsight@ by examining counsel=s performance
from counsel=s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel=s error, and Athat >there is a reasonable probability that,
but for counsel=s unprofessional errors, the result of the proceeding would have
been different.= @ Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). AA reasonable probability is a probability sufficient to undermine confidence
in the outcome.@ Strickland, 466 U.S. at 694. When determining if prejudice
exists, the court Amust consider the totality of the evidence before the judge or
jury.@ Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).
The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice prong,
however, is different in the context of guilty pleas. Instead of merely showing that
the result would be different, the defendant who has pled guilty must establish that
Athere 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); Matthews v. United States, 114 F.3d 114.
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. CLAIM FOR RELIEF
Movant has raised the following grounds for post-conviction relief:
Ground One: The Movant argues that his attorney was ineffective in
failing to investigate and renew motion of suppression of evidence that was based
on “bare bones affidavit.”
Movant has submitted an affidavit in which Plaintiff avers that he asked
counsel to call witnesses during the suppression hearing to support his motion and
that counsel told Movant he would request a hearing. The hearsay issue aside,
Movant’s self-serving affidavit fails to negate his plea colloquy with the Court
wherein Movant stated under oath that he had no complaints of any of his lawyers.
Movant voluntarily waived his right to challenge the warrant by admitting that it
was valid and by waiving the right to file suppression motions in the Plea
Agreement. Ground One is without merit.
Ground Two: Movant contends that his plea of guilty was not voluntarily
and knowingly made. He argues that his initial counsel refused to ask questions
and present evidence in support of his motion and latter counsel would only
discuss a guilty plea. Plaintiff urges that because he is a lay person, he relied on
what counsel told him. The record belies Movant’s argument. Petitioner assured
the Court during the plea hearing that he was voluntarily entering the plea of
guilty. He acknowledged that the plea was made of his own free will and that no
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one threatened him or his family to enter into the plea. Movant did not advise the
Court that he was in anyway dissatisfied by counsel’s performance; indeed, during
the plea colloquy, Movant affirmatively answered that counsel explained any
questions he may have had. Ground Two is meritless.
CONCLUSION
Based upon the foregoing analysis, Movant has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief.
CERTIFICATE OF APPEALABILITY
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
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 Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
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IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct
Sentence and the Supplement thereto, [Doc. No. 1], is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 20th of March, 2018.
_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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