Robinson v. USA

Filing 9

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. Nos. 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 9/9/19. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEVEN ROBINSON,
Movant,
vs.
UNITED STATES OF AMERICA,

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) Case No: 4:17CV1087 HEA
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Respondent.

MEMORANDUM AND ORDER
This matter is before the Court on Steven Robinson’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. For the reasons set forth below, the Motion to Vacate is denied.
PROCEDURAL HISTORY
Movant appeared before this Court for a change of plea on December 2,
2015. Movant was placed under oath prior to any questioning by the Court. The
Court advised Movant that his failure to answer the Court’s questions truthfully
“could cause the United States to come back against [him] with a new indictment
sometime down the road for perjury.” Movant acknowledged that he understood.
The Court first inquired of Movant’s mental and physical health, after which
it concluded that Movant was competent to enter a plea. Although Movant

expressed some difficulty accepting his situation, he nevertheless clarified on
multiple occasions that he was satisfied with his attorney’s advice and assistance.
Movant explained that he was not upset or dissatisfied with his attorney’s advice,
rather he was struggling with “how [he felt] about the situation.” Movant stated
that his attorney “did what he was supposed to do,” and that he “did a real good
job.” Movant denied that he had any remaining questions about his case,
acknowledging that his attorney had answered them all, and he denied that there
were any witnesses that his attorney failed to contact or any defense he wanted
pursued that his attorney had failed to pursue. Movant indicated that there was
nothing he had wanted his attorney to do that his attorney failed to do. Movant
stated that he had no complaints whatsoever about his attorney’s representation of
him.
Movant was fully advised of his Constitutional right to a trial and all of the
other rights attendant to that trial. He admitted that he had read and understood
the indictment against him and denied that he had any remaining questions about
it. He was also fully advised as to the statutory range of punishment to which he
would be exposed in the event of a plea. Movant denied that any threats or
promises had been made to him in exchange for his plea and indicated that he was
pleading guilty voluntarily. He acknowledged that he had reviewed the Guilty Plea

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Agreement with his attorney prior to signing it and stated that he understood that
document and its contents.
Counsel for Respondent summarized the plea agreement between the parties,
noting first that it was offered pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C). As a result, were the Court to reject the plea agreement and refuse to
sentence defendant to the jointly recommended sentence of 144 months, either
party would have the right to withdraw from the agreement. Counsel for
Respondent clarified that “the agreement does provide that notwithstanding the
Court’s ultimate determination as to the correct application of those guidelines or
the advisory sentencing guideline range that results therefrom, the jointly
recommended sentence of 144 months will abide.” Movant expressed no surprise
or disagreement with any of the terms of the plea agreement.
In reciting the evidence that the government would have proven had the
instant case proceeded to trial, counsel specifically noted that after Movant had
sold heroin to two co-defendants, those co-defendants sold the same heroin to
C.M.C. C.M.C. ingested the heroin and subsequently died. A post-mortem
examination later revealed that C.M.C. died as a result of heroin intoxication.
C.M.C. would not have died “but for” the ingestion of the heroin that Movant sold
to his co-defendants, who passed it on to C.M.C. After a clarification unrelated to

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the circumstances of C.M.C.s’ death, Movant agreed that the facts recited by the
government were correct.
At the conclusion of the hearing, the Court asked Movant how he would
plead to the charge leveled against him. Movant responded “guilty.” The Court
then announced its conclusions that Movant entered “his plea of guilty knowingly,
voluntarily, and of his own free will, with a fully understanding of the nature and
consequences of his plea.” The Court also concluded that Robison “knowingly and
voluntarily waiv[ed] his right to a trial by jury and all rights incident thereto,” and
that he was “fully cognizant of the range of punishment applicable to the charge.”
As a result, the Court accepted Movant’s plea of guilty and scheduled the matter
for sentencing.
The United States Probation Office prepared a Pre-Sentence Investigation
Report in anticipation of sentencing. The Probation Office concluded that
Movant’s base offense level was 38 pursuant to Section 2D1.1(a)(2). Movant
objected, arguing that his base offense level should be determined solely on the
basis of the drug quantity, ignoring the fact that Movant admitted that the heroin he
sold was the “but for cause” of C.M.C.’s death. The government responded to the
objection. Prior to imposing sentence on March 23, 2016, the Court denied
Movant’s objection and adopted the Probation Office’s calculations as to the
proper application of the United States Sentencing Guidelines. The Court thereafter
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accepted the parties’ plea agreement, and sentenced Movant to the jointly
recommended sentence of 144 months. Movant waived his right to appeal.
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. Ledezma7

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 provided ineffective
assistance. Movant claims he unknowingly and unintelligently pled guilty to
“enhancement” and over the advisory guideline sentence after his lawyer told him
that if he didn’t plead guilty to 12 years, he would get 20 years for causing the
death of the victim when he died from a heroin overdose.
The performance prong requires a showing that counsel performed outside
the wide range of reasonable professional assistance and made errors so serious
that counsel failed to function as the kind of counsel guaranteed by the Sixth
Amendment. Strickland, at 687-89.
The prejudice prong requires a movant to demonstrate that seriously
deficient performance of counsel prejudiced the defense. Id. at 687. “To establish
prejudice, the defendant must demonstrate a reasonable probability that the result
of the proceeding would have been different, but for counsel’s deficiency.” United
States v. Luke, 686 F.3d 600, 604 (8th Cir. 2012).
The record herein clearly establishes Movant cannot satisfy the prejudice
prong. Movant appeared in open court, under oath and admitted that the victim
would not have died “but for” ingesting the heroin that he distributed. The cause
of death was found to be heroin intoxication. Movant admitted that he was
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knowingly and voluntarily entering into his guilty plea. He admitted that counsel
had provided him advice regarding the plea agreement. At no time did Movant
indicate to the Court that counsel in anyway coerced or threatened him to plead
guilty. Movant was given the opportunity to express any concerns he had with
counsel at the time of the plea. Movant remained silent as to the supposed
inaccurate advice.
This Court also questioned Movant on the representation he received.
Movant stated that he was satisfied with the representation counsel had provided,
that counsel had completed any and all investigation and interviewing of witnesses
requested of counsel. Counsel explained the case to Movant. Movant assured the
Court that there was nothing counsel did not do that he should have done. Movant
advised the Court that he understood his rights and that he was giving up those
rights in pleading guilty, including the right to a trial where the government would
be required to satisfy its burden of proof.
Moreover, counsel objected to the base offense level calculation, arguing
that the victim’s death was not part of the offense of conviction, therefore
Movant’s base offense level should have been that contained in the Drug Quantity
Table, specifically level 12. The Court overruled the objection. Movant presents
nothing to establish that but for counsel’s alleged statement, the result would have
been different.
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Movant fails to satisfy the prejudice element of an ineffective assistance of
counsel claim.
Ground Two: Movant contends that counsel for Respondent engaged in
misconduct in allowing Movant to plead guilty to causing the death of the victim
when the Respondent knew he did not personally give the victim any drugs.
As Respondent correctly argues, causing the death of the victim
encompasses the situation wherein a defendant supplies the drug that is distributed
to others who in turn distribute the drug to the victim who dies from ingesting that
drug. The post-mortem established that C.M.C. died as a result of heroin
intoxication.
21 U.S.C. § 841(b)(1)(C) provides for enhanced penalties “if death or
serious bodily injury results from [the use of a controlled substance that has
been unlawfully distributed by a defendant].” 21 U.S.C. § 841(b)(1)(C). In
Burrage v. United States, the Supreme Court held that, by using the “results
from” operator in this statute, Congress deliberately chose to “use language
that imports but-for causality. . .” and that if Congress had wished for 21
U.S.C. § 841(b)(1)(C) to apply to substantial contributing factors, it would
have used language denoting that concept. 571 U.S. 204, 134 S.Ct. 881, 187
L.Ed.2d 715 (2014). Therefore, “at least where use of the drug distributed by
the defendant is not an independently sufficient cause of the victim's death
or serious bodily injury, a defendant cannot be liable under the penalty
enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless [the drug
distributed by the defendant] is a but-for cause of the death or injury.” Id. at
892.
United States v. Seals, 915 F.3d 1203, 1205–06 (8th Cir. 2019). The record
establishes, and Defendant admitted under oath, that Movant distributed the heroin
to his co-defendants who in turn distributed it to C.M.C. “But for” his distributing
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the heroin to his co-defendants, C.M.C. would not have died. Movant’s actions
fall squarely within the reach of the statute. As such, counsel for Respondent did
not engage in any prosecutorial misconduct.
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,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct
Sentence, [Doc. Nos. 1], is 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 9th day of September, 2019.

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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