Bassett v. USA

Filing 18

MEMORANDUM AND ORDER..this Court denies Bassett's § 2255 petition, without ahearing. IT IS FURTHER ORDERED this Court will not issue a certificate ofappealability because Bassett has not made a substantial showing of the denial of a federal constitutional right. Signed by District Judge Stephen N. Limbaugh, Jr on 10/13/16. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RAY BASSETT,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 4:15CV01800 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set
aside or correct sentence by Ray Bassett, a person in federal custody. On February 28,
2013, Jackson was found guilty by a jury of the offenses of conspiracy to commit bank
robbery, possession of a firearm in furtherance of a crime of violence and felon in
possession of a firearmof being a felon in possession of a firearm and, on July 12, 2013,
this Court sentenced Bassett to the Bureau of Prisons for a term of 138 months, a
sentence within the sentencing guideline range. Bassett’s § 2255 action, which is based
on several allegations of ineffective assistance of counsel, is fully briefed and ripe for
disposition.
I.
STATEMENT OF FACTS
On the evening of October 31, 2011, Otis McAllister (“Otis”) sent an email to FBI
Special Agent Larry Skora. Otis told Skora he was serving a 37-year sentence in federal
prison for bank robbery and firearms convictions. Otis stated that his cousins, Petitioner

Ray Bassett and Willie Bassett (“Willie”), were involved in past bank robberies, but
were not charged. According to Otis, his cousins Willie and Petitioner continued to
commit crimes and had asked Otis to connect them to a bank employee who could help
them rob a bank. Otis offered to divulge the specifics of the bank robbery to the FBI
agent and to testify if the Government would file a Rule 35 motion to reduce Otis’s
sentence. Otis stated that the bank robbery was planned for November 4, 2011, just five
days from the date of his email.
On the evening of November 1, 2011, Agent Skora responded to Otis’s email. He
indicated that he had contacted the U.S. Attorney’s Office in St. Louis, but had not heard
back. Agent Skora stated the FBI would contact Otis in the near future and thanked Otis
for his cooperation.
On November 3, 2011, FBI agents began reviewing Otis’s recorded prison phone
calls. They overheard, among other things, that: Otis’s cousins Petitioner and Willie were
involved in Otis’s previous bank robberies, but served no time; Otis and his nephew,
Anthony McAllister (“Anthony”), agreed to set up Petitioner and Willie to plan a bank
robbery, and tip off the FBI; Otis asked Anthony to contact Petitioner and Willie, and
Anthony did so; Anthony obtained Petitioner’s phone number and provided it to Otis;
Otis and Anthony agreed that the target bank would be the Pulaski Bank at 11550 New
Halls Ferry Road; Otis and Anthony set the bank robbery for November 4, 2011;
Anthony told Otis that Petitioner and Willie drove to St. Louis in a rented Nissan Cube
automobile; Anthony informed Otis that he drove Petitioner and Willie by the Polaski
bank; Otis told Petitioner and Willie that they needed to plan what to do with bank
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robbery proceeds; they discussed dividing up the proceeds; and Willie and Ray confirmed
to Otis that they had seen the target bank.
On November 3, 2011, FBI Special Agent Bryan Yingling interviewed Otis on the
telephone. Otis told the agent that his cousins Petitioner and Willie robbed banks with
Otis but got away with it. Otis demanded a Rule 35 motion in exchange for divulging the
details of a bank robbery that Petitioner and Willie planned to commit the next morning,
November 4, 2011, at 6:30 a.m. Agent Yingling did not promise Otis any consideration
for his information. Instead, Agent Yingling responded that time was running out to do
anything about the bank robbery.
Otis then admitted, among other things: Petitioner and Willie drove from
Memphis, Tennessee, to St. Louis, Missouri, on Tuesday, November 1, 2011, to rob the
Pulaski Bank on Friday, November 4, 2011; Anthony was also involved in the plot; Otis
communicated with Petitioner and Willie by telephone; Otis chose the Pulaski Bank on
New Halls Ferry Road; Otis had “cased” the bank before his incarceration and told
Petitioner and Willie it would be a good bank to rob; Otis told Petitioner and Willie that
two female bank employees would be working with them on an “inside job”; when one of
the bank employees arrived at the bank, Petitioner and Willie would force her to open the
bank; Petitioner and Willie planned to use guns; Otis made up the female bank employees
and the “inside job” to lure Petitioner and Willie into the bank robbery; Petitioner and
Willie planned to rob the bank on November 4, 2011, because Otis told them there would
be $5,000,000 inside the bank; they planned to split the bank robbery proceeds among the
female bank employee, Otis, Petitioner and Willie; Petitioner and Willie cased the bank
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after arriving in St. Louis; Petitioner and Willie planned to wear dark clothing, and caps,
masks or wigs; Petitioner rented a gray Nissan Cube in Memphis to use in the bank
robbery; and Petitioner and Willie stayed at Anthony’s house at 10338 Lilac Avenue after
arriving in St. Louis.
In a second telephone interview on the night of November 3, 2011, Otis stated he
had
just talked to Anthony. Otis confirmed that Anthony took Petitioner and Willie to case
the bank, the bank robbery would occur before 7:00 a.m., and Petitioner had a firearm
and would probably carry it in his waistband.
Based on the investigation, FBI agents obtained a federal search warrant for 10338
Lilac Avenue and the Nissan Cube. The agents executed the search warrant on the early
morning of Friday, November 4, 2011, just hours before the bank robbery was to be
committed.
The agents found Petitioner, Willie and Anthony inside the residence. A search of
Anthony’s bedroom revealed, among other things: a Smith & Wesson .22 caliber semiautomatic pistol, a magazine, ammunition, dark colored clothing, and a roll of duct tape
contained in a blue duffel bag and a black and blue backpack. In the living room, agents
found, among other things, latex gloves and dark colored clothing in a red duffel bag.
Next to the duffel bag, the agents recovered a black knit cap and a dark hat. Inside the
Nissan Cube parked in front of the house, the agents found, among other things, dark
sunglasses and various bags.
The FBI agents arrested Petitioner, Willie and Anthony and transported them to the
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St. Louis FBI office, where they were interviewed. Petitioner executed an advice of
rights form, waived his Miranda rights, and admitted, among other things: His cousin,
Otis, is in prison for bank robberies; Petitioner committed a bank robbery with Otis in
2000; a few weeks earlier, Otis called Petitioner about planning a bank robbery and told
Petitioner to contact Anthony; Petitioner asked his brother, Willie, to participate in the
bank robbery and Willie agreed; Otis told petitioner the bank robbery would be an “inside
job,” with a female bank employee involved; Otis told Petitioner the female bank
employee would have a co-worker with her who was not part of the plan; Otis told
petitioner that Pulaski Bank would be the target bank, and would contain $500,000; they
discussed how they would split the bank robbery proceeds; Petitioner arranged for his
sister to rent the Nissan Cube in Memphis; Petitioner and Willie drove to St. Louis on
November 1, 2011, in the Nissan Cube; Anthony drove Petitioner and Willie past the
bank on November 1, to point it out; Willie and Anthony drove by the bank on November
2; Willie and Petitioner went to the bank lot on the morning of November 3; the .22
caliber pistol belonged to Petitioner, who bought it in Memphis for $60 about one month
earlier; Petitioner brought the pistol to St. Louis and kept it in the blue bag recovered
from the bedroom; Petitioner had a dark hoodie in the bag with the pistol; Petitioner was
going to wear the recovered sunglasses during the bank robbery; Willie brought latex
gloves in a red duffel bag; Anthony gave Petitioner a black bag to carry the bank
proceeds; Petitioner brought the duct tape to tie up the bank employees; Petitioner and
Willie planned to arrive at the bank at about 7 :00 a.m. on November 4; Willie would
approach the “inside” bank employee and Petitioner would grab the co-worker; Petitioner
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would display the pistol and force the bank employees into the bank; Petitioner and
Willie planned to leave Otis’s share of the bank robbery proceeds at Anthony’s house and
depart for Memphis right away; and Anthony told Petitioner that the bank robbery could
be a set up, but Petitioner and Willie intended to go forward anyway.
II.
PROCEDURAL HISTORY
As a result of the above facts, Petitioner was indicted by a federal grand jury on
November 16, 2011, along with co-defendants Anthony McAllister and Willie Bassett.
United States v. Ray Bassett, et al., Cause No. 4:11R0481 (SNLJ). The indictment
charged Ray Bassett and Willie Bassett in Count I with conspiring to commit a bank
robbery. In Count II, Petitioner and Willie Bassett were charged with attempted bank
robbery. Count III charged Petitioner with possessing a firearm in furtherance of a crime
of violence under 18 U.S.C. § 924(c)(1). In Count IV, Petitioner was charged with being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Count V was not
directed against Petitioner. District Court Docket (“DCD”) 14, 15.
The grand jury returned a superseding indictment on May 2, 2012, adding Otis
McAllister as a defendant and an additional count. The additional count, Count VI, was
directed only against Otis. The charges in Counts I through IV against Petitioner
remained unchanged. DCD 136.
Petitioner and his co-defendants proceeded to trial before a jury on February 26,
2013. The jury returned its verdict on February 28, 2013, finding Petitioner guilty on the
conspiracy charge (Count I) and the firearms charges (Counts III and IV), but not guilty
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on the attempted bank robbery charge (Count II). The jury also found Otis McAllister
guilty on the charge of Solicitation to Commit a Crime of Violence. However, the jury
found both Willie Bassett and Anthony McAllister not guilty on all charges. DCD 308.
Following his conviction, the U.S. Probation Office prepared a Presentence
Investigation Report (“PSR”). DCD 348. With respect to Count I, the PSR noted that
Petitioner’s Base Offense Level was 20 pursuant to U.S.S.G. § 2B3.1. PSR ¶ 22. To this,
two levels were added under § 2B3.1(b)(1) as “the property of a financial institution was
an object of the offense.” PSR ¶ 23. This resulted in an Adjusted Offense Level of 22.
PSR ¶ 27. As for Count IV, Petitioner’s Base Offense Level was 20. There were no
adjustments, so his Adjusted Offense Level remained 20. PSR ¶¶ 28, 32. Taking the
greater of the two Adjusted Offense Levels – here, 22 – two levels were added to that for
a multiple count adjustment under § 3D1.2. PSR ¶¶ 21, 33-36. This resulted in a Total
Offense Level of 24. PSR ¶ 39. As for Count III, this charge required a mandatory 60month sentence consecutive to the sentence for Counts I and IV. PSR ¶ 40.
The PSR also calculated Petitioner’s criminal history, concluding that Petitioner had
a criminal history score of five. This correlated to a Criminal History Category III. PSR
¶ 54. Based upon a Total Offense Level of 24 and a Criminal History Category of III,
the recommended guideline imprisonment range was 63-78 months on Counts I and IV,
plus a consecutive term of imprisonment of 60 months on Count III. PSR ¶ 88.
Petitioner appeared before this Court for sentencing on July 12, 2013. The Court
sentenced Petitioner to: (1) a 78-month term of imprisonment on Count I; (2) a 78-month
term of imprisonment on Count IV, to run concurrently with Count I; and (3) a 60-month
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term of imprisonment on Count III, to run consecutively to Counts I and IV. This resulted
in an aggregate term of imprisonment of 138 months. DCD 360.
Petitioner appealed his conviction and sentence to the Eighth Circuit Court of
Appeals. United States v. Bassett, 762 F.3d 681 (8th Cir. 2014). On appeal, Petitioner
argued the evidence was insufficient to convict him of conspiracy and possession of a
firearm in furtherance of a crime of violence. He also argued that the this Court erred
by denying his motion in limine to exclude Rule 404(b) evidence. The Eighth Circuit
affirmed the conviction and sentence on August 6, 2014. Petitioner filed a petition for
writ of certiorari with the Supreme Court. The Supreme Court denied that petition on
December 15, 2014.
Petitioner next filed the instant § 2255 motion on December 7, 2015. While the
motion was timely filed, it is without merit. Therefore, this Court will deny Petitioner’s
request for post-conviction relief.
III.
PRINCIPLES GENERALLY APPLICABLE TO § 2255 MOTIONS
In general, to state a claim for relief under 28 U.S.C. § 2255, a federal prisoner
must prove one of the following: (1) his sentence was imposed in violation of the laws or
Constitution of the United States; (2) the sentencing court did not have jurisdiction to
impose the sentence; (3) his sentence exceeded the maximum allowed by law; or (4) the
sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; Hill v. United States,
368 U.S. 424 (1962). The petitioner bears the burden of proving by a preponderance of
the evidence that he is entitled to relief in cases involving collateral attack on a criminal
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conviction. United States v. Skinner, 326 F.2d 594, 597 (8th Cir. 1964).
Title 28 U.S.C. § 2255 is not designed to provide a remedy for “all claimed errors
in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979).
Instead, a § 2255 cause of action is intended only to correct an error which rises to the
level of a “fundamental defect” which “inherently results in a complete miscarriage of
justice.” Hill, 368 U.S. at 427.
In addition, a collateral attack pursuant to § 2255 is not interchangeable or
substitutable for a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982). That
is, a petitioner is usually precluded from asserting claims in a § 2255 motion that he has
failed to raise on direct appeal. McNeal v. United States, 249 F.3d 747, 749 (8th Cir.
2001); Poor Thunder v. United States, 810 F.2d 817, 823 (8th Cir. 1987). “Where a
defendant has procedurally defaulted a claim by failing to raise it on direct review, the
claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’
and actual ‘prejudice,’ or that he is ‘actually innocent.’” Bousely v. United States, 523
U.S. 614, 622 (1998). See also Johnson v. United States, 278 F.3d 839, 844 (8th Cir.
2002).
Conversely, claims which were raised but rejected on direct appeal may not be relitigated in a § 2255 petition. Withrow v. Williams, 507 U.S. 680, 720-21 (1993) (Scalia,
J., concurring); Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003); United
States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000). Ineffective assistance of counsel
claims, however, are generally not cognizable on direct appeal and are properly addressed
in a § 2255 motion. United States v. Looking Cloud, 419 F.3d 781, 788-89 (8th Cir.
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2005).
IV.
ANALYSIS
A. Petitioner’s Claims
Petitioner raises two claims for post-conviction relief. First, he argues that his
counsel was constitutionally ineffective for not challenging Petitioner’s actual innocence
on Count III of the Indictment for possessing a firearm in furtherance of a crime of
violence. Petitioner’s motion, p. 5. Second, he contends his attorney was ineffective for
failing to object to a multiplicitous indictment. Petitioner’s motion, p. 6.
Petitioner also filed a supplemental motion for post-conviction relief. In his
supplement, he argued that the double jeopardy clause was violated because Petitioner
was convicted for possessing a gun under both 18 U.S.C. § 922(g)(1) and 18 U.S.C. §
924(c). Petitioner also argues that his counsel was ineffective for failing to argue this
issue to the Court. Although Petitioner’s supplemental motion was filed after the oneyear statute of limitations, the claims raised in his supplemental claim are essentially the
same argument raised in his second ground for relief. Therefore, arguably, the untimely
supplement relates back to the original motion and can be considered by the Court.
B. Ineffective Assistance of Counsel Standards
A movant “faces a heavy burden” to establish 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
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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 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.
In addition to proving a deficiency in counsel’s performance, the movant must
also prove that “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
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F.3d at 925.
A court need not even 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 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 petitioner makes an insufficient
showing on one component, the court need not address both components), cert. denied,
531 U.S. 829 (2000).
C. Counsel was not Ineffective for Failing to Argue that Petitioner was
Innocent on Count III
For his first ground for relief, Petitioner seeks to set aside his conviction under
Count III because he contends there was no factual basis to charge him under 18 U.S.C. §
924(c). Petitioner argues that, under Bailey v. United States, 516 U.S. 137 (1995),
“evidence sufficient to show an active employment of a firearm by the petitioner” is
required. Petitioner’s Memorandum, p. 2. Petitioner argues that “a gun found by police in
a ‘Book-Bag that Ray Bassett claimed as his Book-Bag’ where no crime were [sic] ever
committed merely can be a ‘use,’ because of the situation, the gun here never became a
threat to any one at all.” Id. Thus, Petitioner argues his counsel was ineffective for failing
to present this issue to the Court.
Petitioner cannot prevail on his claim of ineffective assistance of counsel because
he cannot establish that his counsel’s performance fell below constitutionally acceptable
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standards. Moreover, even were counsel’s performance constitutionally infirm, counsel’s
performance did not result in prejudice to Petitioner.
1. Performance
Petitioner cannot establish that his counsel’s representation was ineffective for
failing to argue to the this Court or on appeal that Petitioner was actually innocent of
Count III. The record is replete with efforts by both of Petitioner’s defense counsel
throughout the criminal proceedings to pursue such a defense.
First, defense counsel Felicia Jones moved to dismiss the entire indictment on the
grounds of entrapment and outrageous government conduct. DCD 87. Second, attorney
Jones filed a motion to suppress Petitioner’s statements to law enforcement, and it was
those statements that provided strong support for the § 924(c) charge. DCD 88. Attorney
Jones pursued both of those motions at an evidentiary hearing before the Magistrate
Court on March 6, 2012. DCD 107, 114. When the Magistrate Court ruled against
Petitioner [DCD 122], Attorney Jones filed objections with this Court. DCD 130.
At trial, Petitioner’s second counsel, Matthew Radefeld, continued to pursue
Petitioner’s innocence. See, in particular, attorney Radefeld’s cross-examination of FBI
Agent Ankur Patel (Trial Transcript (“Tr.”), Volume III (“III”), p. 176-81), and FBI
Agent William Meyers (Tr. III, p. 237-61), where counsel challenged the validity of
Petitioner’s confession and whether Petitioner’s firearm was intended to be used in the
bank robbery. At the close of the Government’s case, attorney Radefeld moved for a
judgment of acquittal regarding all charges against Petitioner. Tr. III, p. 288-89. At the
close of the evidence, attorney Radefeld made an oral motion for judgment of acquittal as
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to all counts. Tr. IV, p. 131. During his closing argument, he continued to maintain
Petitioner’s innocence, including the § 924(c) charge. Tr. IV, p. 191-99. After the jury
returned its verdict, attorney Radefeld filed a written motion for judgment of acquittal.
DCD 321. He additionally filed a motion for new trial, in which he challenged evidence
he believed was improperly admitted that went to the § 924(c) charge. DCD 325, ¶ 9.
Further, counsel raised this issue on appeal. Specifically, counsel argued that there
was insufficient evidence to support his conviction for possession of a firearm in
furtherance of a crime of violence. The Eighth Circuit rejected that claim as follows,
based primarily on Petitioner’s own statement to law enforcement:
At trial, Agent Meyers testified that during a post-arrest interview, Ray Bassett
admitted that he asked another person to participate in the bank robbery, and that
person agreed. He also described the roles he and the other robber would play:
before the bank opened, they would approach the “inside” employee and her coworker in their cars; Ray Bassett would brandish his gun and grab the co-worker;
the other robber would enter the bank with the “inside” employee; and once inside,
Ray Basset would tie up both employees, and the other robbery would gather the
money. Agent Meyers also testified that Ray Bassett understood he would split the
money with the other robber and two others.
Bassett, at 685-86.
In addition, the Eighth Circuit noted there was additional evidence, specifically in
October 2011 phone calls, “Otis McAllister told Ray Basset to ask Willie Bassett to help
rob the bank and to bring guns to make the robbery ‘look good.’” Bassett, at 686. Further,
in another phone call, “Otis McAllister later talked to both Ray and Willie Bassett, who
confirmed they were staying at Anthony McAllister’s, had everything they needed for the
robbery, and had already made plans for their share of the money.” Id. The Eighth Circuit
concluded that this evidence, in addition to other evidence, was sufficient to convict
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Petitioner of conspiracy. Thus, “his challenge to the conviction for possession of a
firearm in furtherance of a crime of violence is without merit.” Id.
Petitioner’s counsel clearly challenged Count III at every opportunity. The
hindrance to Petitioner’s claim was not a lack of effort on his counsel’s part, but
Petitioner’s own statement to law enforcement, where he unequivocally established he
was using the gun in connection with the bank robbery conspiracy. Therefore,
Petitioner’s claim that his counsel was somehow ineffective in this regard is without
merit.
2. Prejudice
Petitioner also fails to meet the Strickland prejudice prong. As stated earlier, the
burden is on Petitioner 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.” Strickland, 466 U.S. at 694.
As just discussed, the Eighth Circuit considered the sufficiency of the evidence
with regard to Count III. That Court agreed with this Court that there was sufficient
evidence to support the conviction. Therefore, even if counsel somehow should have
pursued this claim more vigorously at the trial level, given the evidence before this Court
(especially Petitioner’s own statement to law enforcement), it is unlikely this Court
would have granted a motion for judgment of acquittal on Count III. As such, Petitioner
cannot establish that a reasonable probability exists the outcome of his criminal
proceedings would have differed had counsel pursued such a defense at trial. Petitioner’s
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claim fails.
D. Counsel Was Not Ineffective for failing to challenge Multiplicitous Indictment
For his second claim for post-conviction relief, Petitioner contends that “each of
the crimes of which he was convicted constituted a single step in an overall criminal
enterprise. Petitioner also contends that the Court and his Attorney denied petitioner due
process of law by not informing him of the multiplicous [sic] character of the
indictments.” Petitioner’s Memorandum, pg.4. Petitioner contends that “his sentence of
78 months on the conspiracy charge and 78 months on the felon in possession of a
firearm” violate double jeopardy because they are “punishments for the same offense.”
Petitioner’s Memorandum, p. 5. Petitioner argues that Counts I, III and IV are all for the
same offense because “they all required proof of the same facts.” Petitioner’s
Memorandum, p. 6.
“An indictment is multiplicitous if it charges the same crime in separate counts.”
United States v. Platter, 514 F.3d 782, 785 (8th Cir. 2008). “The rule against
multiplicitous prosecutions is based on the Fifth Amendment’s Double Jeopardy Clause,
which protects against multiple punishments for the same offense.” United States v.
Hinkeldey, 626 F.3d 1010, 1013 (8th Cir. 2010). Typically, multiplicitous prosecutions
arise when the indictment includes more than one count charging the same statutory
violation. See e.g. United States v. Woolsey, 759 F.3f 905, 907 (8th Cir. 2014); United
States v. Emily, 747 F.3d 974 (8th Cir. 2014). There is no multiplicity, however, if one
count requires proof of facts that is not required by the other count. United States v. Rich,
795 F.2d 680, 682-83 (8th Cir. 1986).
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This case is not even a close call. Petitioner was convicted of three distinct crimes,
each arising under its own separate statute. The elements of the substantive crimes are not
the same. Each crime requires proof of facts that is not required by the other counts.
Defense counsel was not ineffective for failing to raise this argument as it was meritless.
Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir. 1994) (counsel is not ineffective for
failing to make a meritless argument); 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.”).
E. Supplemental Claims1
In his supplemental memorandum, Petitioner argues that he was subjected to
double jeopardy. Specifically, he argues that he cannot be convicted under § 924(c) and §
922(g) for possession of the same firearm. He further contends that his counsel was
Ineffective for failing to pursue this argument.
“[W]here the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine where there are two offenses or
only one, is whether each provision requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932). The same act or transaction may
violate two distinct statutes under Blockburger “notwithstanding a substantial overlap in
the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.
17 (1975).
1

After this case was fully briefed, Petitioner filed a “Motion to Supplement the Record,” in which he claims that the
case of Johnson v. United States, 135 S.Ct. 2551 (2015) somehow requires a reduction in sentence. However,
the Johnson case deals solely with sentencing under the Armed Career Criminal Act, which was not involved in
this case. The claim is frivolous.

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Here, Counts III and IV each require proof of facts that the other count does not
require. The § 924(c) charge in Count III requires proof that Petitioner possessed a
firearm in furtherance of a crime of violence, an element which Count IV does not
require. Count IV (felon in possession) requires proof that Petitioner was a convicted
felon prior to his possession of a firearm, which a § 924(c) charge does not.
As a result, double jeopardy does not exist in this case. Again, counsel was not
ineffective for failing to make a meritless argument. Dyer, 23 F.3d at 1426.

V.
CONCLUSION
For the foregoing reasons, this Court denies Bassett’s § 2255 petition, without a
hearing.
IT IS FURTHER ORDERED this Court will not issue a certificate of
appealability because Bassett has not made a substantial showing of the denial of a
federal constitutional right.
Dated this 13th day of October, 2016.

_____________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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