Maxie v. USA

Filing 26

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Petitioner Darryl Lamont Maxie's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence is DENIED. IT IS FURTHER ORDERED that this Court will not issue a Certifi cate of Appealability as Petitioner has not made a substantial showing of the denial of a federal constitutional right as required by 28 U.S.C. § 2253(c)(2). A separate Judgment shall accompany this Memorandum and Order. Signed by Sr. District Judge Audrey G. Fleissig on 3/11/25. (KJS)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARRYL LAMONT MAXIE,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:21-cv-01354-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Darryl Lamont Maxie’s motion filed
under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On August 5, 2020,
Petitioner pled guilty to one count of being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). The Court accepted Petitioner’s
plea, and on November 13, 2020, sentenced Petitioner to 60 months’ imprisonment and
two years of supervised release. 1
Petitioner filed the instant pro se motion under § 2255 on or about November 15,
2021. In it, Petitioner raises four grounds as to why the Court should vacate and set aside
his conviction. In Ground One, Petitioner argues that he received ineffective assistance
of counsel because his appointed counsel failed to seek suppression of Petitioner’s
confession and statements to law enforcement. In Ground Two, Petitioner argues that he

As discussed further below, Petitioner has now been released from prison due to a
sentence reduction pursuant to18 U.S.C. § 3582(c)(1)(A)(i), and has also been discharged
early from his term of supervised release.
1

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received ineffective assistance of counsel because his appointed counsel failed to seek
suppression of the recovered firearm. In Ground Three, Petitioner alleges “government
misconduct” in the form of excessive force by police officers during Petitioner’s arrest.
Finally, in Ground Four, Petitioner argues that he received ineffective assistance of
counsel because his appointed counsel failed to notify him of and challenge a four-point
enhancement at sentencing for allegedly using or possessing a firearm in connection with
another felony offense (resisting/interfering with arrest and assault, first degree).
As the record conclusively demonstrates that Petitioner is not entitled to relief, the
Court will deny Petitioner’s § 2255 motion on all grounds and without an evidentiary
hearing.

BACKGROUND
Criminal Proceedings
a. Facts Giving Rise to Indictment
As part of the guilty plea agreement signed by both parties, Petitioner stipulated to
the following facts. United States v. Maxie, Case No. 4:19-cr-660-AGF, ECF No. 48. 2
On July 17, 2019, members of the St. Louis Metropolitan Police Department (“SLMPD”)
were investigating an assault at 4427 Labadie. On July 30, 2019, detectives were aware
that Petitioner was wanted for that assault and learned of his location in the 2900 block of

All further references to the underlying criminal case are designated as “Crim.
ECF. No. ___”).
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Newstead. 3 When detectives arrived at the scene, they ordered Petitioner to remain
seated, but he jumped up and ran. At some point during the pursuit, Petitioner discarded
a loaded Taurus, 94 model, .22 LR caliber semi-automatic pistol. After being tackled by
a police officer, Petitioner tried to gain control of the officer’s firearm. It took several
minutes and two officers to subdue Petitioner.
Later that day, while being interviewed by detectives, Petitioner told the officers
that the discarded Taurus was the firearm he carried every day. That same firearm was
examined by an expert, who determined that it was manufactured outside of the state of
Missouri, and so it must have traveled across state lines either before or during the time
Petitioner possessed it. On the date of the incident detailed above, Petitioner knew he
had previously been convicted of a felony.
b. Indictment and Pretrial Proceedings
Petitioner was indicted on August 15, 2019, and charged with one count of
unlawfully possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) and 18
U.S.C. § 924(a)(2). Counsel was then appointed, and on January 27, 2020, Petitioner,
through counsel, filed a motion to suppress the incriminating statements Petitioner made
during the above-noted post-arrest interview with SLMPD Detectives Taylor Hosna and
Brandin Neil on July 30, 2019, in which Petitioner connected himself to the firearm in
question. Crim. ECF. No. 37.

As part of the plea agreement, Petitioner was not required to admit whether he was
involved in the assault that occurred on July 17, 2019.
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In his motion to suppress, Petitioner argued that during the interview, Detective
Hosna advised Petitioner of his Miranda 4 rights, Petitioner stated that he understood his
rights, and then the following exchange took place:
[W]hen [Detective Hosna] asked [Petitioner] if he wanted to talk to them,
[Petitioner] said “No” and shook his head no.
The Detective followed up with a second question: “Not at all?” [Petitioner]
again shook his head and stated “No.”
Immediately after this exchange, there was a knock on the door of the
interview room and Detective Neil stepped out but Detective Hosna
remained in the room. After a period of silence, [Petitioner] asked Detective
Hosna “What’s this consisting of?” The Detective responded, “Hold on, I’ll
tell you.” [Petitioner] said he was confused.
After a further period of silence, the Detective asked [Petitioner] some
informational questions – his age, where he worked, how long he worked
there, and what kind of work he did. The Detective asked [Petitioner] if it
was true that he was “off every Monday and Tuesday” and worked “every
weekend,” which [Petitioner] confirmed.
Thereafter, [Petitioner] did not speak at all until Detective Neil re-entered the
room and asked “What are we doing?” Detective Hosna responded “I don’t
know” and then turned to [Petitioner] again and said, “You don’t want to talk
to us…at all?”
At that point [Petitioner] asked again what they wanted to talk to him about
and Detective Hosna described the information they had regarding the assault
for which he was wanted. For the next seven to ten minutes the Detectives
questioned [Petitioner] regarding the assault allegations and he denied
knowledge of or involvement in the assault.
However, Detective Hosna continued the interrogation and introduced the
topic of the weapon that [Petitioner] allegedly discarded earlier that day. At
that point [Petitioner] made incriminating statements connecting himself to
the firearm.

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Miranda v. Arizona, 384 U.S. 436 (1966).

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Crim. ECF No. 37 at 2-3.
The government opposed Petitioner’s motion to suppress, arguing that even
accepting the facts set forth by Petitioner as stated above, Petitioner’s motion should be
denied because, after invoking his right to remain silence, Petitioner initiated contact with
the officers on a matter related to the investigation, thus permitting further interrogation.
Crim. ECF No. 38.
Before an evidentiary hearing on the motion was held, Petitioner’s counsel
withdrew his motion to suppress and waived all pretrial motions. Crim. ECF. No. 40. In
his motion to withdraw and waiver of pretrial motions, Petitioner’s counsel represented
that Petitioner agreed with the decision not to raise any issues by way of pretrial motions.
Id. The Court accepted the waiver on February 28, 2020, and set a trial date. Following
advice that Petitioner wished to enter a change of plea, the Court set the case for a
change-of-plea hearing on August 5, 2020. Crim. ECF No. 47.
c. Change of Plea and Pre-Sentencing Filings
As noted above, pursuant to a written plea agreement and Federal Rule of
Criminal Procedure 11(c)(1)(A), Petitioner agreed to plead guilty to one count of
unlawfully possessing a firearm as a felon in exchange for the government agreeing that
it would bring no further prosecution arising out of the events set forth in the indictment.
At the change-of-plea hearing held on the day the plea agreement was executed, August
5, 2020, Petitioner made the following sworn statements regarding his counsel’s
performance:

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The Court: And can you tell me, sir, have you had enough time to
discuss both your case and this plea agreement with your attorney?
[Petitioner]: Yes, ma’am.
The Court: And are you satisfied with his representation of you in
this case?
[Petitioner]: Yes, ma’am.
The Court: Is there anything you think your attorney should have
done but hasn’t done in representing you?
[Petitioner]: No, ma’am.
The Court: Is there anything you asked him to do that he failed or
refused to do?
[Petitioner]: No, ma’am.
The Court: And to the extent that you’ve had questions, has he
answered those questions for you?
[Petitioner]: Yes, ma’am.
Crim. ECF No. 68, Plea Tr. 9:3–18.
Petitioner further confirmed that he understood the terms of the indictment and
plea agreement; that he understood the rights he was giving up by pleading guilty,
including all of his rights associated with his right to a trial; and that he was guilty of the
crime to which he was pleading guilty. Id. at 9:19–12:15.
Then, the Court discussed with Petitioner his waiver of pretrial motions:
The Court: And it's my understanding that at some point in time, your
attorney filed a waiver of your right to file pretrial motions?
[Petitioner]: Yes, ma'am.
The Court: Do you recall that, sir?

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[Petitioner]: Yes, ma'am.
The Court: Did you, in fact, discuss with your attorney whether or not
to waive your right to file pretrial motions?
[Petitioner]: Yes, ma'am.
The Court: Are you satisfied with the decision that you and your
attorney reached to waive your right to file those motions?
[Petitioner]: Yes, ma'am.
The Court: And do you understand, sir, that by virtue of that waiver,
and also by virtue of entering into a guilty plea, that you could be deemed to
have waived or given up your right to assert such motions?
[Petitioner]: Yes, ma'am.
THE COURT: And what this particular paragraph of the plea
agreement relates to is your ability to make arguments like that to the Court
of Appeals. And so, you understand, for example, sir, to the extent you
believe any search, any seizure, any arrest, any statements made by you were
obtained in violation of your rights, part of what you're giving up is your right
to make those arguments to the Court of Appeals. You understand?
[Petitioner]: Yes, ma'am
Id. at 32:25–34:2. The Court ultimately accepted Petitioner’s guilty plea as knowing,
intelligent, and voluntary. Id. at 38:1–8.
On October 27, 2020, Petitioner, through counsel, filed a “Statement of Defendant
Regarding Presentence Report.” Crim. ECF. No. 56. Petitioner stated that he “accept[ed]
the Presentence Report without any legal objection” and clarified that his acceptance of
the four points assessed under USSG §2K2.1(b)(6)(B) “[did] not constitute an admission
to the allegations giving rise to its applications; rather it represents an effort to conserve

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judicial resources in light of the relaxed burden of proof that governs sentencing
proceedings.” Id.
Petitioner also filed a sentencing letter, pro se, on October 19, 2020, addressing
the above-noted four-point sentencing enhancement relating to his use of a firearm in
connection with resisting/interfering with arrest. Crim. ECF No. 54. In the letter,
Petitioner laid out his concerns and confusion regarding the enhancement because he pled
guilty only to Count One (18 U.S.C. § 922(g)(1)) and was unaware that an enhancement
would be sought for a crime to which he did not plead guilty. Id. Petitioner argued that
he only attempted to flee from the police because they did not identify themselves and
arrived at his location in an unmarked van. Id. Petitioner concluded by accepting full
responsibility for his actions in connection with Count One, stating his desire to move
past his previous mistakes, and describing distressing events that have negatively
impacted his life. Id.
Subsequently, Petitioner, through counsel, requested that the Court grant a
downward variance and impose a sentence of 30 months, based on Petitioner’s age, his
difficult upbringing, and the passage of time since his prior criminal history. Crim. ECF
No. 58.
The United States Probation Office filed its final presentence investigation report
(“PSR”) shortly thereafter. Crim. ECF. No. 61. The PSR concluded that a four-level
enhancement was appropriate for Petitioner’s use of a firearm in connection with another
felony (resisting/interfering with arrest), but a three-level reduction was awarded for
“accepting responsibility and timely pleading guilty.” Id. Based on Petitioner’s total

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offense level, the applicable range under the United States Sentencing Guidelines was 57
to 71 months’ imprisonment. Id.
d. Sentencing
On November 13, 2020, the Court held a sentencing hearing at which Petitioner
appeared through counsel. Petitioner’s counsel represented that Petitioner was not
objecting to the four-point enhancement, but also not admitting to those facts. Counsel
further confirmed at the hearing that he had reviewed the PSR with Petitioner. Crim.
ECF No. 70, Sent. Tr. 6:19–25. Petitioner’s counsel also argued for a downward
variance based on the points previously described above. Id. at 8:21–10:9. The
Government opposed the downward variance on the grounds that Petitioner had accrued
numerous violations while in custody and that his actions did not warrant a shorter
sentence. Id. at 12:2–24; see Crim. ECF No. 58.
The Court denied Petitioner’s request for a downward variance but imposed a
sentence of 60 months—near the low end of the applicable range under the United States
Sentencing Guidelines—and a two-year term of supervised release. Crim. ECF No. 70,
Sent. Tr. at 14:8–10. Petitioner did not file a direct appeal, and the judgment became
final on November 27, 2020.
Motion to Vacate
As noted above, Petitioner filed his § 2255 motion, pro se, on November 15, 2021.
In it, he raises four grounds for federal habeas relief. He argues that counsel was
ineffective for withdrawing the above-noted motion to suppress Petitioner’s statements to
detectives during the July 30, 2019 interview (Ground One), failing to move to suppress

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the recovered firearm (Ground Two), and failing to notify him of and challenge the fourpoint sentencing enhancement (Ground Four). Petitioner also argues that habeas relief is
warranted due to government misconduct in that he was “pistol-whipped” and otherwise
subjected to excessive force by police officers during his arrest (Ground Three).
The Government filed its response on April 13, 2022, arguing that each of
Petitioner’s claims is without merit. ECF No. 22. Petitioner filed a traverse on July 11,
2022, largely reiterating the bases for each of his claims. ECF No. 25.
Compassionate Release and Early Discharge From Supervised Release
On October 24, 2022, following the close of briefing on the instant § 2255 motion,
the Court granted the government’s motion to reduce Petitioner’s term of imprisonment
to time served, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), in light of Petitioner’s terminal
cancer diagnosis. Crim. ECF Nos. 72 & 73. A little over a year later, on December 18,
2023, the Court also approved Petitioner’s early discharge from supervised release, on the
recommendation of the United States Probation Office based on Petitioner’s worsening
health and limited life expectancy. 5 Crim. ECF Nos. 74 & 75.
DISCUSSION
Legal Standard
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a sentence
imposed against him 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

There is no information in the record or in publicly available resources as to the
current status of Petitioner’s health.
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impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” Section 2255 rights can be waived in a
plea agreement if a defendant knowingly and voluntarily makes the “decision to be bound
by the provisions of the plea agreement, including the waiver provisions.” DeRoo v.
United States, 223 F.3d 919, 923 (8th Cir. 2000). However, a petitioner’s ineffective
assistance of counsel claim is properly raised under § 2255 rather than on direct appeal.
United States v. Davis, 452 F.3d 991, 994 (8th Cir. 2006) (citation omitted).
To establish ineffective assistance of counsel, “the petitioner must show ‘counsel’s
representation fell below an objective standard of reasonableness’ and ‘that such deficient
performance prejudiced’ the defense.” Davis v. United States, 858 F.3d 529, 532 (8th
Cir. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). Prejudice
requires the petitioner to show a “reasonable probability” that the outcome would have
been different but for the deficient performance. Coleman v. United States, 750 F.3d
734, 739 (8th Cir. 2014) (citation omitted). In the context of a guilty plea, this requires
the petitioner to 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.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). In the sentencing context, it requires the petitioner to
show “a reasonable probability that his sentence would have been different but for the
deficient performance.” Coleman, 750 F.3d at 739 (8th Cir. 2014) (citation omitted). “A
reasonable probability is a probability sufficient to undermine confidence in the outcome
or a substantial, not just conceivable, likelihood of a different result.” Meza-Lopez v.
United States, 929 F.3d 1041, 1044-45 (8th Cir. 2019) (citation omitted).

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“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.” Id. at
1045 (citation omitted). “Instead, [j]udges should . . . look to contemporaneous evidence
to substantiate a defendant’s expressed preferences.” Id. In particular, a “defendant’s
representations during the plea-taking carry a strong presumption of verity and pose a
formidable barrier in any subsequent collateral proceedings.” Adams v. United States,
869 F.3d 633, 635 (8th Cir. 2017) (citation omitted).
1. Ground One: Withdrawing the Motion to Suppress Petitioner’s Statements 6
Petitioner first contends that his counsel was ineffective by failing to seek
suppression of Petitioner’s statements to police. Petitioner alleges that he was beaten
during his arrest and that those same arresting officers later interrogated him, leading to
his confession. Plaintiff argues that his will was overborne due to his fear of the officers.
As noted above, Petitioner’s counsel initially filed a motion to suppress the confession
before withdrawing the motion and waiving all pre-trial motions. Petitioner now alleges
that counsel was ineffective in advising him to withdraw his motion to suppress.
Petitioner’s assertion is contradicted by the record. As noted above, in both the
written plea agreement and the extensive plea colloquy held with the Court under oath,

As discussed below, Petitioner’s release from prison and early discharge from
supervised release has mooted his claim challenging the length of his sentence (Ground
Four). However, Petitioner’s other claims are not moot because those challenge the
validity of Petitioner’s conviction, which is presumed to have collateral consequences.
See O'Neil v. United States, 966 F.3d 764, 770 n.4 (8th Cir. 2020) (“O’Neil’s ineffectiveassistance-of-counsel claims . . . turn on the validity of his conviction, not the validity of
his sentence. Therefore, we presume that those claims bore collateral consequence and
are not mooted by his release.”).
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Petitioner represented that he discussed withdrawing all pretrial motions with his counsel,
agreed with that decision, and understood the consequences of doing so. Petitioner’s
claim is further contradicted by his representations to the Court during the plea-taking
that he was satisfied with his counsel’s representation; that there were no questions he
had that his counsel had not answered; and that there was nothing he asked his counsel to
do that counsel had not done.
In any event, Petitioner is unable to demonstrate prejudice under Strickland
because a motion to suppress would have been ultimately unsuccessful. He argues that
withdrawing the motion to suppress was prejudicial because the interrogating officers
violated his Miranda rights in obtaining incriminating statements. Petitioner was advised
of his rights, and he invoked those rights by remaining silent and refusing to answer
questions, but he ultimately relinquished them by reengaging the officers with a question
related to the investigation. See United States v. Hull, 419 F.3d 762, 768 (8th Cir. 2005)
(holding the district court appropriately denied defendant’s motion to suppress when he
initiated contact with authorities on a matter relating to the investigation); see also United
States v. Thongsophaporn, 503 F.3d 51, 56 (1st Cir. 2007) (holding that a defendant
freely initiated further communications with law enforcement officer by asking “what
was going on,” notwithstanding his initial statement that he did not wish to answer any
questions). 7

Neither did the detectives’ clarifying questions as to whether Petitioner was sure
he did not want to speak to them, or their informational questions asking about
Petitioner’s age and work, violate Petitioner’s Miranda rights. See, e.g., United States v.
LaRoche, 83 F.4th 682, 689 (8th Cir. 2023), cert. denied, 144 S. Ct. 858 (2024)
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Petitioner also contends that he made the statements to the police because he
feared further violence would be used against him. Viewing the totality of the
circumstances, the Court disagrees.
A statement is involuntary when it is extracted by threats, violence, or
express or implied promises sufficient to overbear the defendant's will and
critically impair his capacity for self-determination. We determine if a
defendant's will has been overborne by examining the totality of the
circumstances, including both the conduct of law enforcement in exerting
pressure to confess on the defendant and the defendant's ability to resist that
pressure. Factors used to make this determination include the degree of
police coercion, the length of the interrogation, its location, its continuity,
and the defendant’s maturity, education, physical condition, and mental
condition.
United States v. Sandell, 27 F.4th 625, 630 (8th Cir. 2022) (cleaned up). Petitioner
argues that his will was overborne because “[a]ny person in a situation such as this,
facing officers that had just beat you, would have their will overwhelmed in the hopes of
not receiving another beating, and answer any question with anything the police would
want to hear.” ECF No. 25 at 9. But there is no evidence in the record suggesting the
police intended to use or actually did use additional force during questioning. See United
States v. Carroll, 207 F.3d 465, 472 (8th Cir. 2000) (holding that police officers did not
coerce an involuntary confession from the plaintiff because their use of force was limited
to effecting the arrest and not employed during the subsequent questioning). Rather,
Petitioner acknowledged in his plea agreement, his sentencing letter, and even his current

(“[F]ollow-up questions to clarify ambiguity do not amount to “interrogation” unless
“their point is to enhance the defendant’s guilt.”) (citation omitted); United States v.
Armstrong, 39 F.4th 1053, 1056 (8th Cir. 2022) (holding that questions regarding basic
identification and employment information was not interrogation under Miranda).

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habeas filings, that he fled from police and force was used to subdue him. The
questioning occurred later in the day, and there is no allegation of any use of force or
threat of force during the discussion with Petitioner.
Nothing in the record suggests Petitioner lacked the requisite maturity, education,
or mental or physical stamina to understand his rights; indeed, his earlier invocation of
his right to remain silent reflects his competence and understanding. Further, nothing in
the record suggests the police actually used or threatened to use any physical force during
the questioning. Finally, Petitioner’s time spent discussing substantive topics with the
officers lasted only seven to ten minutes; and Petitioner’s record shows he has had
multiple experiences with the criminal justice system, suggesting he was familiar with his
constitutional rights. See, e.g., Perry v. Kemna, 356 F.3d 880, 886 (8th Cir. 2004)
(deciding that a one-and-a-half hour interview was not excessive in duration); United
States v. Vinton, 631 F.3d 476, 482 (8th Cir. 2011) (“A history of interaction with the
criminal justice system supports an inference that an interviewee is familiar with his
constitutional rights and that his statements to the police are voluntary.”) (citation
omitted).
Because the totality of the circumstances weighs against finding that Petitioner’s
will was overborne, Petitioner’s underlying claim is without merit, and he cannot succeed
on an ineffective assistance of counsel claim. See, e.g., Gingras v. Weber, 543 F.3d
1001, 1003 (8th Cir. 2008) (dismissing petitioner’s claim for ineffective assistance of
counsel because there was no reasonable probability a motion to suppress would have
been successful, as his statements were not a product of intimidation, coercion, or

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deception, nor was petitioner subjected to coercive police activity sufficient to
demonstrate his confession was made involuntarily). Further, Petitioner received benefits
as the result of his negotiated plea, including the agreement not to pursue the July 17,
2019 assault.
For these reasons, the Court will deny Ground One.
2. Ground Two: Failure to File Motion to Suppress the Firearm
Petitioner claims his counsel was ineffective in failing to seek suppression of the
firearm recovered by the police. Again, Petitioner’s sworn statements that he was
satisfied with his attorney’s performance, that his attorney did everything Petitioner asked
him to do, that there was nothing that Petitioner could think of that his attorney should
have done but did not do, and that he specifically agreed to waive any pretrial motions
while understanding the consequences for doing so, all plainly contradict his claim in
Ground Two.
Further, Petitioner cannot demonstrate prejudice because, again, any motion to
suppress the firearm would have been without merit. Petitioner contends that the firearm
was only linked to him by the statements he made during the interrogation which he
alleges was coercive. However, as discussed above, the Court has determined Petitioner
was not coerced into making any incriminating statements and that detectives did not
violate Petitioner’s Miranda rights.
In any event, Petitioner’s statements during the interview with detectives was not
the only evidence linking Petitioner to the firearm. Petitioner’s own evidence—including
the arrest report attached to his motion to vacate—indicate that Petitioner was linked to

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the firearm by the anticipated testimony of multiple police officers who reported that they
observed Petitioner produce a gun from his waistband or pocket and drop the gun in the
alley prior to his arrest. ECF No. 1 at 15–16. In his reply brief, Petitioner argues that this
other evidence connecting him to the firearm was substantially weaker than his
confession because of, for example, discrepancies in the officers’ description of the gun
they saw and the lack of DNA or other physical evidence linking Petitioner to the gun.
ECF No. 25 at 8–10. But regardless of Petitioner’s view of how strong the other
evidence was, there is no question that Petitioner’s confession was not the only evidence
linking Petitioner to the firearm. More importantly, Petitioner alleged no Fourth
Amendment violation in recovering the firearm. To the contrary, the undisputed facts are
that the officers ordered Petitioner to remain seated but he fled and discarded the firearm
during flight. The seizure of the discarded firearm provides no basis for suppression.
In short, Petitioner has not established prejudice under Strickland because a
motion to suppress the firearm would likely have been denied; the government had other
evidence to link Petitioner to the firearm; and there is no reasonable probability the
outcome would have been different had he not waived his right to file a motion to
suppress. See Anderson v. United States, 762 F.3d 787, 794 (8th Cir. 2014) (“Counsel is
not ineffective for failing to pursue a motion to suppress that he reasonably believes
would be futile.”) (citations omitted). For all of these reasons, the Court will deny
Ground Two.

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3. Ground Three: Government Misconduct
Petitioner claims that habeas relief is warranted due to government misconduct,
namely, police brutality to which he was subjected during his arrest. To the extent this
claim relates to Petitioner’s claim in Grounds One and Two—in other words, to the
extent Petitioner is arguing that alleged police brutality rendered his later confession
coercive and that counsel was ineffective for failing to make such an argument—the
Court rejects that claim for the reasons stated above.
To the extent that Petitioner is asserting an independent claim based solely on the
force used during his arrest, a § 2255 motion is not the appropriate vehicle to bring such a
claim. 8 See Houser v. United States, 508 F.2d 509, 514–15 (8th Cir. 1974) (“Claims of
illegal arrest [and] irregularities in arrest . . . are not cognizable” under § 2255) (footnotes
omitted). Further, pursuant to Petitioner’s plea agreement, he waived the right to contest
any issue other than prosecutorial misconduct and ineffective assistance of counsel.
Thus, the Court will deny Ground Three.

Petitioner states that he has separately filed a civil lawsuit in state court seeking
damages for the alleged police brutality, and he has submitted to the Court what appears
to be an unsigned, unstamped copy of his complaint directed to the state court. See ECF
No. 19. Such a civil lawsuit may well be a more appropriate vehicle to seek relief for the
type of excessive force that Petitioner alleges. However, the Court notes that it has not
located any record of such a lawsuit in Missouri’s Case.net electronic filing system.
8

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4. Ground Four: Failure to Challenge and Notify of Sentencing Enhancement
With respect to Ground Four, Petitioner argues his counsel was ineffective for
failing to notify him of and challenge his four-point sentencing enhancement. The Court
will deny Ground Four as it is moot. 9
Petitioner’s Ground Four only challenges the length of his prison term. However,
Petitioner was granted early compassionate release on October 24, 2022, and his
supervised release ended on December 18, 2023. Crim. ECF No. 75. As Petitioner is no
longer in prison or on supervised release, there is no effectual remedy the Court can
grant. Irvan v. United States, No. 24-1402, 2024 WL 5199386, at *1 (8th Cir. Dec. 23,
2024) (concluding defendant’s claim relating to his prison term was mooted by his
release from prison while his § 2255 case was pending); Owen v. United States, 930 F.3d
989, 990–91 (8th Cir. 2019) (concluding that defendant’s appeal challenging the length of
his completed prison sentence was moot).
Evidentiary Hearing
As noted above, an evidentiary hearing is not warranted in this case as “the motion
and the files and records of the case conclusively show that the prisoner is entitled to no
relief.” See 28 U.S.C. § 2255(b); see also Guzman-Ortiz v. United States, 849 F.3d 708,
715 (8th Cir. 2017) (holding that a district court may forego an evidentiary hearing before

Because the Court will deny Ground Four as moot, it need not consider and has
not considered the additional evidence both parties cite with respect to the merits of
Ground Four—namely, the surveillance video depicting the events in which Petitioner
was alleged to have resisted arrest.
9

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dismissing a § 2255 motion where “accepting the petitioner’s allegations as true, the
petitioner is not entitled to relief”) (citation omitted).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner Darryl Lamont Maxie’s motion filed
under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Petitioner has not made a substantial showing of the denial of a federal
constitutional right as required by 28 U.S.C. § 2253(c)(2).
A separate Judgment shall accompany this Memorandum and Order.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 11th day of March, 2025.

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