Mills v. USA

Filing 20

OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence and the Supplement thereto, [Doc. Nos. 1 and 6 ], are 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 afederal constitutional right.A separate judgment is entered this same date.. Signed by District Judge Henry Edward Autrey on 07/23/2019. (AAS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JASON THOMAS MILLS,
Movant,
vs.
UNITED STATES OF AMERICA,

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) Case No: 4:16CV739 HEA
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)

Respondent.

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, [Doc. No. 6]. The United States
has responded to the Motion, pursuant to the Court’s Case Management Order.
For the reasons set forth below, the Motion will be denied, without a hearing.
BACKGROUND
On June 17, 2015, a Grand Jury in the Eastern District of Missouri, returned
a four-count indictment against Petitioner, charging him with two counts of being a
felon in possession of a firearm on June 22, 2014 and July 12, 2014 in violation of
18 U.S.C. § 922(g)(1), one count of Possession With Intent to Distribute
Methamphetamine in violation of 21 U.S.C. § 841(a)(1) and one count of
possessing a firearm in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c). (Case Number 4:15CR288 HEA).

Pursuant to a plea agreement, Petitioner pleaded guilty to counts one and
two of the Indictment. The Government agreed to dismiss counts three and four at
sentencing.
Petitioner was sentenced on December 9, 2015. The Court found Petitioner
to be an armed career criminal on each count under the Armed Career Criminal
Act, 18 U.S.C. § 924(e). Petitioner was sentenced to a total term of imprisonment
of 180 months: 180 months each on Counts one and two, to be served
concurrently. Petitioner did not appeal his conviction or sentence.
The predicate convictions listed in the enhancement were: a prior conviction
for manufacturing a controlled substance, a prior conviction for unlawful use of a
weapon-exhibiting, and a prior conviction for assault second degree, wherein
Petitioner attempted to cause physical injury to a law enforcement officer by
means of a dangerous instrument.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that
the sentence was imposed in violation of the Constitution or law of the United
States, that the court lacked jurisdiction to impose such a sentence, that “an error of
law does not provide a basis for collateral attack unless the claimed error
constituted a fundamental defect which inherently results in a complete
miscarriage of justice.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir.
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2011)(internal citations omitted). To warrant relief under § 2255, the errors of
which the movant complains must amount to a fundamental miscarriage of justice.
Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298, 2305, 41 L. Ed. 2d 109,
119 (1974); Hill v. United States, 368 U.S. 424, 428-29, 82 S. Ct. 468, 471, 7 L.
Ed. 2d 417, 422 (1962).
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
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)).
RIGHT TO AN EVIDENTIARY HEARING

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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.
DISCUSSION
Johnson Claim
In his § 2255 Petition, Petitioner contends he was improperly classified as a
career offender based upon a retroactive application of Johnson v. U.S, 576 U.S.
__, 135 S. Ct. 2551 (2015). Petitioner argues he was improperly classified as a
career offender and the holding in Johnson mandates this Court resentence him
without finding him to be a career offender.
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In Johnson, the Supreme Court held that the Armed Career Criminal Act’s
(“ACCA”; 18 U.S.C. § 924(e)) residual clause was unconstitutionally vague and
“thus fixed—in an impermissibly vague way—a higher range of sentences for
certain defendants.” Beckles v. United States, __U.S.__, 137 S. Ct. 886, 892
(2017); Johnson, __U.S. __, 135 S. Ct. 2551, 2563 (“imposing an increased
sentence under the residual clause of the Armed Career Criminal Act violates the
Constitution’s guarantee of due process”).1
As Respondent correctly argues, Petitioner has the requisite three predicate
offenses to satisfy the ACCA. Petitioner has a prior conviction for manufacturing
a controlled substance, which qualifies as a serious drug offense.
As to the unlawful use of a weapon offense,2 the Eighth Circuit Court of
Appeals has plainly held that
Missouri's crime of unlawful use of a weapon meets the statutory definition
of violent felony in § 924(e)(2)(B)(i), because it involves the use, attempted
1

The ACCA defines “violent felony” as follows:

“any crime punishable by imprisonment for a term exceeding one year ... that—
“(i) has as an element the use, attempted use, or threatened use of physical force against the person of
another; or
“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.” § 924(e)(2)(B) (emphasis added).
The closing words of this definition, italicized above, have come to be known as the ACCA’s residual
clause. Johnson, 135 S. Ct. at 2555–56.
2

Under Missouri law a person commits the crime of unlawful use of a weapon if he knowingly “[e]xhibits, in the
presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.”
Mo. Rev. Stat. § 571.030.1(4).

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use, or threatened use of physical force against the person of another.”
Pulliam, 566 F.3d at 788 (quotation omitted). “It goes without saying that
displaying an operational weapon before another in an angry or threatening
manner qualifies as threatened use of physical force against another person.”
[United States v. Pulliam, 566 F.3d 784, 788 (8th Cir. 2009)].
United States v. Pryor, 927 F.3d 1042, 1044 (8th Cir. 2019). Petitioner’s
conviction for Unlawful Use of a Weapon is a predicate offense.
Finally, Petitioner’s conviction for assault second degree also satisfies the
ACCA. In United States v. Alexander, 809 F.3d 1029 (8th Cir. 2016), the Eighth
Circuit unequivocally held that a conviction under the statutory subsection under
which Petitioner was convicted qualified as an ACCA predicate “violent felony.”
In reaching this conclusion, the Alexander Court examined a charging document
containing language virtually identical to Petitioner’s prior conviction. There, the
charging instrument at issue stated that the defendant “attempted to cause physical
injury to [victim] by means of a dangerous instrument.” Id. at 1032. The Alexander
Court determined that the language of the Information tracked the language of Mo.
Rev. Stat. § 565.060.1(2), which proscribes “attempts to cause ... physical injury to
another person by means of a deadly weapon or dangerous instrument.” The
Alexander Court held that a conviction under this subsection qualifies as an ACCA
predicate violent felony because it necessarily involves the “attempted use” of
physical force against another. Id.

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In so holding, the Alexander Court rejected the defendant’s contention that
Missouri’s attempt statute was over-inclusive. The Court found that the Missouri
“attempt statute requires only a showing that [a] defendant’s purpose was to
commit the underlying offense and that defendant took a substantial step toward its
commission.” Id. at 1033 (quoting State v. Faruqi, 344 S.W.3d 193, 202 (Mo banc
2011)). Accordingly, the Alexander Court held that an attempted second-degree
assault under Mo. Rev. Stat. § 565.060 requires the “attempted use ... of physical
force” and therefore meets the standard set forth in the force clause at 18 U.S.C. §
924(e)(2)(B)(i).
Ineffective Assistance of Counsel
To prove ineffective assistance of counsel, a defendant must demonstrate
both that his attorney’s performance “fell below an objective standard of
reasonableness” and that he was prejudiced as a result. Strickland v. Washington,
466 U.S. 668, 687-88 (1984). The Court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance[.]” Id. at 689. To demonstrate prejudice in the guilty plea context, “the
petitioner 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.’” United States v. Frausto, 754 F.3d 640, 643 (8th Cir. 2014) (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985)). “A reasonable probability is a probability
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sufficient to undermine confidence in the outcome” or “a ‘substantial,’ not just
‘conceivable,’ likelihood of a different result.” Id. (quoting Cullen v. Pinholster,
563 U.S. 170 (2011)). “Courts should not upset a plea solely because of post hoc
assertions from a defendant about how he would have pleaded but for his
attorney’s deficiencies.” Lee v. United States, ___ U.S. ___, 137 S. Ct. 1958, 1967
(2017). Instead, “[j]udges should ... look to contemporaneous evidence to
substantiate a defendant’s expressed preferences.” Id.
Petitioner claims that counsel was ineffective for “convince[ing him] that
[his] points were much higher than they actually were.” Petitioner does not
articulate what he means by this statement. The Court assumes that Petitioner is
referring to his criminal history points. Even with this assumption, the Court can
find no prejudice to Petitioner because he fails to explain how any alleged
misrepresentation regarding Petitioner’s criminal history points had any effect on
his conviction and sentence.
Similarly, Petitioner’s unsupported claim that counsel was ineffective
because he would not take Petitioner’s calls or answer his letters fails to establish
any prejudice caused by the lack of responses by counsel.
Likewise, Petitioner fails to support his claim that counsel wouldn’t “do
things [he] asked such as getting in touch with witnesses.” This mere statement
fails to establish, even assuming the truth thereof, how he was prejudiced by
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counsel’s alleged shortcomings. Nowhere within the Motion does Petitioner
identify any witnesses counsel did not contact nor does he identify the nature and
scope of any testimony these witnesses would have provided.
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. Petitioner’s Motion to Vacate his Sentence will be denied.
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,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct
Sentence and the Supplement thereto, [Doc. Nos. 1 and 6], are DENIED.
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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 23rd day of July, 2019.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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