Eldridge v. USA
ORDER entered by Judge Nanette Laughrey. Robert Lee Eldridge's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. # 1] is DENIED as to his claim for prosecutorial misconduct and his first claim for ineffective ass istance of counsel. An evidentiary hearing is necessary with respect to petitioner's claim that his counsel was ineffective for failing to file a Notice of Appeal. Petitioner will receive notice of the date for that hearing. The Federal Public Defender's Office will be appointed to represent the Petitioner for the limited purpose of that evidentiary hearing. (Kanies, Renea) Modified on 7/1/2011 - Mailed by regular mail to pro se plaintiff per CRD's request(Russel, Jeri).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ROBERT LEE ELDRIDGE,
UNITED STATES OF AMERICA,
Civil No. 11-4058-CV-C-NKL-P
Crim. No. 08-04041-01-CR-C-NKL
Before the Court is Robert Lee Eldridge’s Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 [Doc. # 1]. For the reasons set forth below, the Court
denies the motion in part and grants the motion in part.
On February 9, 2009, Eldridge pled guilty to a single count of being a felon in
possession of firearms while an unlawful user of a controlled substance, and he was
sentenced to 96 months. On February 14, 2011, Eldridge timely filed his pro se 28
U.S.C. § 2255 motion seeking to set aside his conviction based on prosecutorial
misconduct and two claims of ineffective assistance of counsel.
On a motion to vacate, a movant is entitled to an evidentiary hearing when the
facts alleged, if true, would entitle him to relief. See Payne v. United States, 78 F.3d 343
(8th Cir. 1996). However, a claim may be dismissed without an evidentiary hearing if
the claim is inadequate on its face. Id. Moreover, a district court need not hold an
evidentiary hearing in a section 2255 case when the files and records conclusively show
that the movant is not entitled to relief. See Bradshaw v. United States, 153 F.3d 704
(8th Cir. 1998). After reviewing the record, the Court concludes that two of Eldridge’s
three claims can be fully and fairly evaluated on the existing record and no evidentiary
hearing is necessary. However, as the Government concedes, Eldridge’s third claim that
his counsel did not provide him effective assistance in failing to file a requested Notice of
Appeal warrants an evidentiary hearing.
Eldridge complains about the conduct of the prosecutor, alleging “[m]isconduct by
prosecutor in so much as she failed to inform courts where or by which means Movant
received mon[e]tary funds. Leading the Judge to believe that monies were obtained by
illegal activit[i]es. ‘Drug dealing’” [Doc. # 1 at 6]. Eldridge has not identified any
monetary funds at issue at any point in his proceedings. There is no allegation that the
Government had or withheld any evidence with respect to money or any other
evidentiary issue, or any explanation of how the unknown monetary information could
have affected the outcome of Eldridge’s case.
Eldridge’s prosecutorial misconduct claim is conclusory and does not allege facts
that would excuse his failure to have raised the issue at trial or on direct appeal. Further,
Eldridge’s claim lacks evidentiary support in the record, and he does not show actual
prejudice that resulted from the alleged error. Because Eldridge fails to explain why his
prosecutorial misconduct arguments could not have been raised at trial or on appeal, or
how he was prejudiced, he cannot properly raise this claim in a section 2255 motion.
Ineffective Assistance of Counsel
In the first of his two claims that he was not provided effective assistance of
counsel, Eldridge argues that “counsel failed to inform courts where Movant recieved
monatary [sic] funds during or before sentencing. Leaving the courts to believe that
monies were obtained throu[gh] illegal activit[i]es. ‘D[ru]g dealing’” [Doc. # 1 at 5].
A claim of ineffective assistance of counsel [under § 2255] must be scrutinized
under the two-part test of Strickland v. Washington, 466 U.S. 668 (1984).
Strickland, in order to prevail on a claim of ineffective assistance of counsel, a convicted
defendant must prove both that his counsel’s representation was deficient and that the
deficient performance prejudiced the defendant’s case. The first part of the test is met
when the defendant shows that counsel failed to exercise the customary skills and
diligence that a reasonably competent attorney would [have] exhibit[ed] under similar
The second part is met when the defendant shows that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Id. (quoting Cheek v. United States, 858 F.2d
1330, 1336 (8th Cir. 1988)).
Under the first prong of Strickland, there is a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Strickland,
466 U.S. at 689. “Judicial scrutiny of counsel’s performance must be highly deferential.”
Id. Under Strickland’s second prong, the defendant also bears the burden of proving that
the ineffective performance prejudiced his defense. French v. United States, 76 F.3d
186, 188 (8th Cir. 1996). Such a showing requires proof of a reasonable probability that
the result would have been different but for counsel’s deficient performance. Id. “A
‘reasonable probability’ is one which is ‘sufficient to undermine confidence in the
outcome.’” Id. (quoting Strickland, 466 U.S. at 694).
Here, Eldridge fails to meet this heavy burden. First, his claim has no relationship
to identifiable facts in the record. Eldridge pled guilty to the single charge of being a
felon in possession of firearms while an unlawful user of a controlled substance, and the
record does not reveal evidence involving large amounts of cash or other funds. Eldridge
was not assessed a fine, and he does not further claim that the absence of this financial
information altered the outcome of his case or that his counsel did not act well within the
wide range of reasonable professional assistance.
Given that judicial scrutiny of
counsel’s performance must be highly deferential, there is simply no basis to secondguess Eldridge’s counsel’s decision not to pursue this line of defense.
However, in the second of Eldridge’s claims that he was not provided effective
assistance of counsel, he argues that his counsel was ineffective because he “failed to file
an appeal when movant requested that he submit an appeal” [Doc. # 1 at 4]. Failure to
file an appeal if requested would constitute ineffective assistance of counsel, even
without a showing of prejudice. Holloway v. United States, 960 F.2d 1348, 1356-57 (8th
Cir. 1992). Although Eldridge’s allegation lacks specificity, “[a] petitioner is entitled to
an evidentiary hearing on a section 2255 motion unless the motion and the files and
records of the case conclusively show that he is entitled to no relief.” Anjulo-Lopez v.
United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation marks omitted).
Because neither the motion nor the record conclusively shows that Eldridge is not entitled
to relief, this issue can only be resolved after an evidentiary hearing.
Accordingly, it is hereby ORDERED that Robert Lee Eldridge’s Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. # 1] is DENIED as
to his claim for prosecutorial misconduct and his first claim for ineffective assistance of
counsel. An evidentiary hearing is necessary with respect to petitioner’s claim that his
counsel was ineffective for failing to file a Notice of Appeal. Petitioner will receive
notice of the date for that hearing.
The Federal Public Defender’s Office will be
appointed to represent the Petitioner for the limited purpose of that evidentiary hearing.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 30, 2011
Jefferson City, Missouri
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