Strayhorn v. USA

Filing 10

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant Jevon Strayhorn's motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody is DENIED. [ECF No. 1 ] IT IS FURTHER ORDERED that movant Jevon Strayhorn's motion for leave to amend his Motion to Vacate is DENIED. [ECF No. 8 ] IT IS FURTHER ORDERED that movant Jevon Strayhorn has not made a substantial showing of the denial of a constitutional right such that reasonable juris ts would find the Court's assessment of the constitutional claims debatable, or that reasonable jurists would find it debatable whether the Court was correct in its procedural rulings, and therefore this Court will not issue a certifi cate of appealability on those claims. See Miller-El v. Cockrell, 537 U.S. 332, 338 (2003); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). An appropriate judgment will accompany this memorandum and order. Signed by District Judge Ronnie L. White on July 28, 2021. (BRP)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEVON STRAYHORN,

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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 4:18-CV-718 RLW

MEMORANDUM AND ORDER
This matter is before the Court on movant Jevon Strayhorn’s Motion to Vacate, Set Aside
or Correct Sentence pursuant to 28 U.S.C. § 2255 (“Motion to Vacate”). (ECF No. 1). This matter
is fully briefed and ready for disposition. Also before the Court is movant’s motion for leave to
amend his Motion to Vacate, pursuant to Fed. R. Civ. P. 15, to which the government did not file
a response, and the time to do so has expired.
I. Background
On January 27, 2016, Jevon Strayhorn’s was charged in a one-count indictment with felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Attorney Lucille Gardner Liggett
of the Federal Public Defender’s Office entered her appearance on behalf of movant. On April
13, 2016, movant filed a waiver of pretrial motions, and the case was set for a possible change of
plea hearing on June 1, 2016. At the hearing, movant’s counsel advised the Court movant was
not prepared to enter a guilty plea, and she moved to continue the hearing and for a trial date. The
Court granted the motion for a continuance and set for the case for trial on July 18, 2016.
On June 15, 2016, counsel filed a motion to vacate movant’s waiver of pretrial motions,
which was granted. The case was referred and remanded to United States Magistrate Judge

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Noelle C. Collins for hearing of the pretrial motions. On July 14, 2014, movant counsel filed a
motion to suppress evidence. Following an evidentiary hearing, which was held on September
14, 2016, Magistrate Judge Collins recommended the motion be denied. Movant’s counsel filed
objections to the Order and Recommendation. On December 6, 2016, the Court overruled
movant’s objections, sustained and adopted the Magistrate Judge’s Order and Recommendation,
and denied movant’s motion to suppress evidence.
In December 2016, the parties reached a plea agreement, under which movant agreed to
plead guilty to the charge against him, felon in possession of a firearm in violation of 18 U.S.C.
§922(g)(1). On December 19, 2016, movant signed a written Plea Agreement, and on that same
day, movant entered a plea of guilty. The Court accepted movant’s guilty plea, the matter was set
for sentencing, and a Presentence Investigation Report (“PSR”) was ordered.
The PSR indicated movant had a prior conviction in 2006 for possession of an unregistered,
sawed-off shotgun with a barrel length of sixteen and fifteen-sixteenth inches. See United States
v. Strayhorn, 4:06-CV-358 CAS (E.D. Mo. Nov. 21, 2006). The PSR calculated movant’s base
offense level for a violation of 18 U.S.C. § 922(g)(1) to be 20 pursuant to § 2K2(a)(4)(A) of the
United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”).
The Court set a sentencing hearing for March 22, 2017. Prior to the hearing, movant’s
counsel filed a motion for a downward variance. At the March 22, 2017 hearing, movant and his
counsel were given the opportunity to object to the PSR, and neither voiced an objection. Movant
was sentenced to a term of 57 months in the Federal Bureau of Prisons.
On March 31, 2017, movant filed a notice of appeal. Movant argued on appeal that the
Court erred by failing to adequately explain why it did not take his suggestion to sentence him
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below the Guidelines range, and instead sentenced him to the top of the 46 to 57-month range.
Movant also argued that the sentence was substantively unreasonable. On January 24, 2018, the
Eighth Circuit Court of Appeals denied movant’s appeal and affirmed the Court’s sentence.
United States v. Strayhorn, 709 Fed. Appx. 420 (8th Cir. 2018). The Eighth Circuit found the
Court did not err procedurally in sentencing movant because it explained its reasons for the
sentence it imposed. The Eighth Circuit further found movant had failed to rebut the presumption
that his within-Guidelines-range sentence was reasonable. The Eighth Circuit issued its mandate
on March 12, 2018.
On May 7, 2018, movant filed the Motion to Vacate presently before the Court. Movant
raises one ground with his motion for ineffective assistance of counsel. Movant claims that prior
to sentencing, he received constitutionally ineffective assistance of counsel in that his attorney
failed to investigate whether with his prior conviction for a possession of an unregistered, sawedoff shot gun constituted a crime of violence for purposes of sentencing. According to movant,
“[p]rior to sentencing, Amendment 798 went into effect and was applicable to [movant].
Amendment 798 to the guidelines amended what constitutes a crime of violence and sawed-off
shotgun was deleted.” (ECF No. 1 at 2).
The government filed a response to movant’s Motion to Vacate, to which movant filed a
reply. Movant’s Motion to Vacate is fully briefed and ripe for review.
Movant moves to amend his Motion to Vacate pursuant to Fed. R. Civ. P. 15(a). (ECF
No. 8). Movant seeks to add a claim based on a recent Supreme Court decision, which movant
believes entitled him to credit on his current sentence. Movant asks that he be credited for the
time he served in detention from January 1, 2016 to May 25, 2016, when his supervised release
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was revoked and he was detained in United States v. Strayhorn, 4:13-cr-00400-CDP.

The

government did not respond to movant’s motion for leave to amend.
II.

Motion to Amend

The Court must first address movant’s motion for leave to amend his Motion to Vacate.
Movant’s motion for leave to amend was filed more than a year after his Motion to Vacate, and
the claim he seeks to add does not relate back to the claim he originally raised. That said, movant
seeks to add a claim based on a recent Supreme Court decision, Mont v. United States, 139 S. Ct.
1826 (2019), which was decided 11 days before he filed his motion for leave to amend. The oneyear statute of limitations period to file a § 2255 motion to vacate runs from “the date on which
the right asserted was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”
28 U.S.C. § 2255(f)(3). The Supreme Court held in Dodd v. United States, 545 U.S. 353, 357
(2005), that the limitations period of 28 U.S.C. § 2255(f)(3) begins to run on the date the Supreme
Court initially recognizes the right, not when the right has been held retroactively applicable to
cases on collateral review.
The Supreme Court has not held that its decision in Mont v. United States applies
retroactively to cases on collateral review. Recently, the Supreme Court clarified its retroactivity
principles. Edwards v. Vannoy, 141 S. Ct. 1547, 1562 (2021) (abrogating, in part, Teague v. Lane,
489 U.S. 288, 310 (1989)). New substantive rules, which alter “the range of conduct or the class
of persons that the law punishes,” apply retroactively to cases on federal collateral review. Id.
(quoting Schriro v. Summerlin, 542 U.S. 348, 357 (2004)). New procedural rules, which alter
“only the manner of determining the defendant’s culpability,” do not. Id. (quoting Summerlin,
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542 U.S. at 357). New procedural rules apply only to cases pending in trial courts and on direct
review. Id.
The Court, however, need not decide whether Mont v. United States, announced a new
substantive rule, a new procedural rule, or even a new rule at all, because the decision is
inapplicable to the case at hand. In Mont, a defendant on federal supervised release was arrested,
detained, and convicted in state court. 139 S. Ct. at 1830. While the defendant was in pretrial
detention on the state charges, the federal court issued summons on the supervised release
violation.

At sentencing, the state court credited the defendant for time served in pretrial

detention.

Following sentencing in state court, the district court set a supervised release

revocation hearing.

The defendant challenged the district court’s authority to revoke his

supervision and argued his term of supervision had expired. The Supreme Court overruled
defendant’s arguments and held “pretrial detention later credited as time served for a new
conviction is ‘imprison[ment] in connection with a conviction’ and thus tolls the supervisedrelease term.” Id. at (quoting 18 U.S.C. § 3624(e)).
Here, movant was never released on supervision for the conviction at issue in this case.
The ruling in Mont, which addresses the effect of pretrial detention on the tolling of a term of
supervision is simply not relevant to the case at bar and, therefore, movant’s proposed amendment
fails to raise a viable claim. The Court will deny movant’s motion for leave to amend his § 2255
Motion to Vacate on the ground that the amendment would be futile. Moore-El v. Luebbers, 446
F.3d 890, 902 (8th Cir. 2006) (leave to amend motion to vacate may be denied if amendment would
be futile).

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III. Motion to Vacate - 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. 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 (1974); Hill v. United States, 368 U.S. 424, 428-29 (1962).
A movant is entitled to an evidentiary hearing on a 28 U.S.C. § 2255 motion to vacate if a
factual dispute exists. See Grady v. United States, 269 F.3d 913, 919 (8th Cir. 2001); United
States v. Peltier, 731 F.2d 550, 554 (8th Cir. 1984). “An evidentiary hearing may be denied,
however, if the motion, files, and records of the case conclusively show that the movant is not
entitled to relief.” Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013) (citing 28 U.S.C.
§ 2255(b)). A district court may make this finding if either “(1) the [movant’s] allegations,
accepted as true, would not entitle the [movant] to relief, or (2) the allegations cannot be accepted
as true because they are contradicted by the record, inherently incredible, or conclusions rather
than statements of fact.” Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (internal
quotation marks omitted). The Court finds movant is not entitled to an evidentiary hearing on his
Motion to Vacate, because even if movant’s allegations are accepted as true, he is not entitled to
relief.

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IV. Discussion
Movant is procedurally barred from raising his claim of ineffective assistance of counsel.
If a claim could have been raised on direct appeal but was not, it cannot be raised in a § 2255
motion unless the movant can show both (1) “cause” that excuses the default, and (2) “actual
prejudice” resulting from the errors of which he complains. See United States v. Frady, 456 U.S.
152, 165 (1982); Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997). If a movant is
unable to show “cause” and “actual prejudice,” he must make a “substantial claim that
constitutional error has caused the conviction of an innocent person . . . .” Schlup v. Delo, 513
U.S. 298, 321 (1995). A claim of actual innocence must be based on “new evidence,” and must
convince the Court that “it is more likely than not that no reasonable juror would have found
[movant] guilty beyond a reasonable doubt.” Id. at 327. See also Embrey v. Hershberger, 131
F.3d 739, 741 (8th Cir. 1997) (applying Schlup actual innocence standard in the context of a § 2255
motion), cert. denied, 525 U.S. 828 (1998).
“Cause” under the cause and prejudice test “must be something external to the [movant],
something that cannot fairly be attributed to him,” for example, a showing that the factual or legal
basis for a claim was not reasonably available, or that some interference by officials made
compliance with the procedural rule impracticable. Stanley v. Lockhart, 941 F.2d 707, 709 (8th
Cir. 1991) (citing Coleman v. Thompson, 501 U.S. 722 (1991)); see also Greer v. Minnesota, 493
F.3d 952, 957-58 (8th Cir. 2007).
In his Motion to Vacate, movant states he did not raise his claim of ineffective assistance
of counsel on direct appeal, “[b]ecause I did not have the grounds I needed at the time.” ECF No.
1 at 3. This one-sentence, conclusory statement without further explanation does not meet the
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cause standard. Greer, 493 F.3d at 957-58 (8th Cir. 2007); Stanley, 941 F.2d at 709. Movant’s
claim of ineffective assistance of counsel is barred because it could have been raised on direct
appeal, and movant has not shown cause to lift the bar. See Frady, 456 U.S. at 165; Matthews,
114 F.3d at 113.
Even if the Court were to review the claim on the merits, it would be dismissed without
merit. “To establish ineffective assistance of counsel within the context of section 2255, . . . a
movant faces a heavy burden.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To
prevail on an ineffective assistance of counsel claim, movant must show that his counsel’s
performance was deficient and that he was prejudiced by the deficient performance.

See

McReynolds v. Kemna, 208 F.3d 721, 722 (8th Cir. 2000) (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). “Counsel’s performance was deficient if it fell outside the wide range of
professionally competent assistance.” McReynolds, 208 F.3d at 723 (internal quotations and
citations omitted). Prejudice is shown if there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id.

A court may address the two prongs of the Strickland test in any order, and if

the movant fails to make a sufficient showing of one prong, the court need not address the other
prong. Strickland, 466 U.S. at 697; Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000).
In Ground One, Movant faults his attorney for failing to investigate whether his prior
conviction for possession of an unregistered, sawed-off shotgun constituted a crime of violence
for purposes of sentencing.

Whether movant’s attorney researched the issue is immaterial,

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because unlawful possession of an unregistered, sawed-off shotgun is a crime of violence under
the applicable Guidelines.
Movant was sentenced under the 2016 “U.S.S.G.”, which provided that a violation of 18
U.S.C. §922(g)(1), felon in possession of a firearm, has a base offense level of 20, “if the defendant
committed any part of the instant offense subsequent to sustaining one felony conviction of either
a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1.(a)(4)(A) (2016). A
“crime of violence” was defined as the following:
(a) … any offense under federal or state law, punishable by imprisonment for a
term exceeding one year, that— (1) has as an element the use, attempted use, or
threatened use of physical force against the person of another, or (2) is murder,
voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense,
robbery, arson, extortion, or the use or unlawful possession of a firearm described
in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).
§ 4B1.2(a) (2016) (emphasis added). A firearm in § 5845(a) includes “a shotgun having a barrel
or barrels of less than 18 inches in length.” 26 U.S.C. § 5845(a)(1).
Amendment 798 to the U.S.S.G. went into effect on August 1, 2016. The amendment
made changes to the definition of “crime of violence” in § 4B1.2(a), namely the amendment
deleted the “residual clause.” §4B1.2(a). Amendment 798, however, did not change inclusion of
unlawful possession of a sawed-off shot gun as a crime of violence. It moved the use or unlawful
possession of a firearm described in 26 U.S.C. § 5845(a) from the residual clause to the enumerated
list:
[T]he amendment adds offenses that involve the “use or unlawful possession of a
firearm described in 26 U.S.C. § 5845(a) or an explosive material as defined in 18
U.S.C. § 841(c)” to the enumerated list at §4B1.2(a)(2). This addition is consistent
with long-standing commentary in §4B1.2 categorically identifying possession of
a firearm described in 26 U.S.C. § 5845(a) as a “crime of violence,” and therefore
maintains the status quo. The Commission continues to believe that possession of
these types of weapons (e.g., a sawed-off shotgun or sawed-off rifle, silencer,
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bomb, or machine gun) inherently presents a serious potential risk of physical injury
to another person. Additionally, inclusion as an enumerated offense reflects
Congress’s determination that such weapons are inherently dangerous and, when
possessed unlawfully, serve only violent purposes.
U.S. Sentencing Commission, Amendment 798, https://www.ussc.gov/guidelines/amendment/798
(last visited Jul. 28, 2021).

Movant is mistaken that Amendment 798 removed unlawful

possession of a sawed-off shotgun from the definition of crime of violence.
Movant was convicted in 2006 of possession of an unregistered, sawed-off shotgun with a
barrel length of sixteen and fifteen-sixteenth inches. See United States v. Strayhorn, 4:06-CV-358
CAS (E.D. Mo. Nov. 21, 2006). Movant, therefore, had previously been convicted of a crime of
violence within the meaning of U.S.S.G. § 2K2.1.(a)(4)(A) (2016). There is nothing in the record
to suggest that the performance of movant’s attorney was constitutionally deficient, or that movant
was prejudiced by the conduct of his attorney. Strickland, 466 U.S. at 694; McReynolds, 208 F.3d
at 723. Movant has not established a claim of ineffective assistance of counsel.
Accordingly,
IT IS HEREBY ORDERED that movant Jevon Strayhorn’s motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody is DENIED.
[ECF No. 1]
IT IS FURTHER ORDERED that movant Jevon Strayhorn’s motion for leave to amend
his Motion to Vacate is DENIED. [ECF No. 8]
IT IS FURTHER ORDERED that movant Jevon Strayhorn has not made a substantial
showing of the denial of a constitutional right such that reasonable jurists would find the Court’s
assessment of the constitutional claims debatable, or that reasonable jurists would find it debatable
whether the Court was correct in its procedural rulings, and therefore this Court will not issue a
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certificate of appealability on those claims. See Miller-El v. Cockrell, 537 U.S. 332, 338 (2003);
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
An appropriate judgment will accompany this memorandum and order.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

Dated this

28th

day of July, 2021.

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