Henderson v. USA

Filing 5

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Brian T. Henderson's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1 ] is DENIED. Petitioner's Motion is DISMISSED, with prejudice. IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability as to any claim raised in Petitioner's § 2255 Motion. Signed by District Judge E. Richard Webber on 1/30/2017. (CBL)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION BRIAN TERRAL HENDERSON, Petitioner, vs. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) Case No. 4:16CV01657 ERW MEMORANDUM AND ORDER This matter comes before the Court on Brian T. Henderson=s (“Petitioner”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1]. I. BACKGROUND On March 11, 2015, Petitioner was indicted for possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).1 On September 8, 2015, Petitioner pled guilty to both counts in the indictment. On January 7, 2016, Petitioner was sentenced to 84-months imprisonment, and a three-year term of supervised release. Petitioner filed the current motion on October 21, 2016, asserting his conviction should be set aside because his counsel was ineffective. II. STANDARD A federal prisoner who seeks relief under 28 U.S.C. ' 2255 on grounds “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 1 See Criminal Case United States v. Brian Terral Henderson, No. 4:15CR111 ERW. 1 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(a). In order to obtain relief under § 2255, the petitioner must establish a constitutional or federal statutory 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 be limited by procedural default. A petitioner “cannot raise a non-constitutional or non-jurisdictional 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). Claims, including those concerning constitutional and jurisdictional issues, unraised on direct appeal cannot subsequently be raised in a ' 2255 motion unless the petitioner establishes “(1) cause for 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, 621-22 (1998)). However, ineffective assistance of counsel claims may be raised for the first time in a § 2255 motion even if they could have been raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). This exception is in place to prevent petitioners from being forced “to raise the issue before there has been an opportunity fully to develop the factual predicate for the claim.” Id. Additionally, a petitioner=s attorney may serve as counsel for both the trial and appellate case, and it is unlikely that the attorney would raise a claim of his own ineffective assistance on appeal. See United States v. Rashad, 331 F.3d 908, 911 (D.C. Cir. 2003). To excuse procedural default, however, a petitioner, raising a constitutional claim for the first time in a § 2255 proceeding, still must demonstrate cause and prejudice. Anderson, 25 F. 3d 2 at 706. Ordinarily, issues that were raised and decided on direct appeal cannot be relitigated in a § 2255 motion. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001). Exceptions to this rule are recognized only upon production of convincing new evidence of actual innocence, and are available only in the extraordinary case. Id. If the petitioner=s claims are not procedurally barred, the Court must hold an evidentiary hearing to consider the claims “[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. ' 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994). 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) (citation omitted). However, a court may dismiss a claim without a 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. III. DISCUSSION Petitioner asserts three reasons his counsel was allegedly ineffective. First, he argues his counsel was ineffective because counsel failed to investigate the case. Defendant contends “Defendant stated that the court lack[ed] jurisdiction due to Missouri in rem of property that Missouri has laws in place that state or local law enforcement may transfer any property seized by state or local agency to any federal agency for forfeiture under federal law.” Second, Defendant states his counsel was ineffective because of counsel’s failure to “know state law on seized property that the local prosecuting attorney has ten days to file petition of forfeiture.” Finally, Defendant asserts counsel was ineffective because counsel failed to ask the Court for an investigator. This is the entirety of Petitioner’s arguments. 3 To establish a claim for ineffective assistance of counsel, a defendant must show the counsel’s performance was deficient and counsel’s deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice requires the defendant to show he was deprived of a fair trial because of the deficiency. Id. Under the first prong, the measure of an attorney’s performance is “reasonableness under prevailing professional norms.” Id. at 688. “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689. To establish the second prong of prejudice, the defendant must show “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. When a defendant has pled guilty, the defendant must demonstrate 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.” Matthews v. United States, 114 F.3d 112, 114 (8th Cir. 1997) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). A court need not address both prongs of the analysis if the defendant makes an insufficient showing on either prong. Strickland, 466 U.S. at 697. A guilty plea and representations made by a defendant during the plea-taking create a “strong presumption of verity and pose a formidable barrier in any subsequent collateral proceedings.” Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997). When a defendant admits he is satisfied with his lawyer, there were no threats or promises to induce him to plead, and he voluntarily admits his guilt, he has a “heavy burden” to show his plea was involuntary. Id. “Once a person has entered a guilty plea, any subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.” Tran v. Lockhart, 849 F.2d 1064, 1068 (8th Cir. 1988). 4 Petitioner’s claims must be denied because they are conclusory. Estes v. United States, 883 F.2d 645, 647 (8th Cir. 1985) (holding conclusory allegations are insufficient to rebut the strong presumption of counsel’s competence). Petitioner fails to establish either of the Strickland prongs, especially when the Court considers his guilty plea. As part of his guilty plea, Petitioner agreed to forfeit any interest in items seized during the investigation. Petitioner’s claims must be summarily dismissed. V. CERTIFICATE OF APPEALABILITY The Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right, as is required before a certificate of appealability can issue. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (explaining that a Asubstantial showing@ is a showing the Aissues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings@). Therefore, the Court shall not issue a certificate of appealability as to any claims raised in Petitioner=s ' 2255 Motion. Accordingly, IT IS HEREBY ORDERED that Brian T. Henderson=s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1] is DENIED. Petitioner=s Motion is DISMISSED, with prejudice. IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability as to any claim raised in Petitioner=s ' 2255 Motion. So Ordered this 30th day of January, 2017. E. RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE 5

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