Berryman v. USA

Filing 14

ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Richard A Berryman. Signed on 4/25/12 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RICHARD BERRYMAN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil No. 11-0793-CV-W-DGK

ORDER DENYING MOVANT’S MOTION FOR POST CONVICTION RELIEF
Pending before the Court is Movant Richard Berryman’s (“Berryman”) Motion for PostConviction Relief pursuant to 28 U.S.C. § 2255 (Doc. 1). The Court has carefully reviewed this
Motion and the Government’s Response (Doc. 7), and for the reasons discussed below, this
Motion is DENIED.
Background
On May 20, 2009, a federal grand jury returned a one-count indictment charging
Berryman with the crime of being a felon in possession of a firearm, in violation of 18 U.S.C. §§
922(g) and 924(a)(2). On October 14, 2009, Berryman, without the benefit of a plea agreement,
entered a plea of guilty to the charged offense. During the proceeding, in sworn testimony,
Berryman admitted that he had a prior felony conviction but stated that when he possessed the
firearms, he did not know that he was a convicted felon (Plea Transcript p. 9, 12). Berryman’s
attorney, Richard Jacoby, explained to the Court that Berryman, who had received a suspended
execution of sentence, mistakenly thought he had a suspended imposition of sentence (“SIS”).
After noting that he had researched the issue extensively, Mr. Jacoby informed the Court that the
only issue under the statute was whether Berry was a felon and knowingly possessed firearms

and that it was irrelevant whether Berryman knew it was illegal for him to possess the firearms.
(Plea Transcript p. 9-11).
On April 13, 2010, the Court sentenced Berryman to a 70-month term of imprisonment
and three years’ of supervised release. On April 13, 2010, the Court issued a signed judgment.
Berryman did not appeal his conviction, and it became effective on April 27, 2010. On August
12, 2011, Berryman filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. §
2255, raising one claim of ineffective assistance of counsel.

The government opposes

Berryman’s motion as untimely.
Standard
Title 28, section 2255 allows a district court to “vacate, set aside or correct [a] sentence”
which “the court was without jurisdiction to impose . . . or . . . was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Under the
statute, there is a one-year statute of limitation for § 2255 motions. 28 U.S.C. § 2255(f). The
one-year statue of limitations runs from the latest of the following: (1) the date on which the
judgment of conviction becomes final; (2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution or laws of the United States is
removed, if the movant was prevented from making a motion by such governmental action; (3)
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; or (4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence. Id.

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Discussion
A. Movant’s appeal was untimely and must be dismissed.
Berryman’s conviction became final on April 27, 2010. Therefore, under 28 U.S.C. §
2255(f)(1), Berryman had one year, until April 27, 2011, to timely file a § 2255 motion.
Plaintiff, however, maintains that the motion was timely and that hard copies of the original
motion and the Movant’s affidavit were filed with the clerk’s office prior to the end of the
limitations period. As support for this contention, Berryman submits an affidavit stating that his
current attorney, Phillip R. Gibson, advised him that an “affidavit” and “Rule 2255 motion was
filed on or about April 16, 2011, but the Court did not receive it or has lost it if the Court did
receive it.” In Movant’s reply brief, Gibson repeats this claim, however, he has not filed an
affidavit to that effect, and there is no evidence that the Court has any record of an April 16,
2011 filing. Additionally, Berryman has offered no evidence to demonstrate that he or counsel
made any effort to verify that the motion was timely filed or to ascertain why the Court has no
record of an April 16, 2011 filing. Accordingly, the Court finds that Berryman failed to file his
motion within the required one-year statute of limitations and has offered no evidence of special
circumstances justifying a late filing. Therefore, Berryman’s motion is dismissed as untimely.
See Campa-Fabela v. United States, 339 F.3d 993, 993-94 (8th Cir. 2003) (affirming dismissal
of untimely petition); Moore v. United States, 173 F.3d 1131, 1133-35 (8th Cir. 1999).
B. The record contradicts Movant’s claim that he was given ineffective assistance
of counsel.
Even had Movant’s appeal been timely filed, his claim of ineffective assistance of
counsel would fail because it is contradicted by the record. In making a claim for ineffective
assistance of counsel, a movant must show that his “trial counsel’s performance was so deficient

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as to fall below an objective standard of reasonable competence, and that the deficient
performance prejudiced his defense.” Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir. 1995) (quoting
Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir. 1992)). This analysis contains two
components: a performance prong and a prejudice prong. Under the performance prong, the
court must apply an objective standard and “determine whether, in light of all the circumstances,
the identified acts or omissions were outside the wide range of professionally competent
assistance.” Strickland v. Washington, 466 U.S. 668, 690 (1984). The prejudice prong requires
proof “that there is a reasonable probability that, but for a counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
Berryman contends that he “had the absolute right to go to trial on the Government’s
charges” and that his attorney, Mr. Jacoby, mistakenly informed him that he had “no choice but
to plead guilty to the charge” (Doc. 1). This claim is contradicted by the record of Berryman’s
change of plea hearing and by Mr. Jacoby’s affidavit.
At his change of plea hearing on October 14, 2009, Berryman swore to the Court that he
understood his right to plead not guilty and proceed to trial. He also swore that he was satisfied
with the adequacy of Mr. Jacoby’s representation. His sworn testimony was as follows:
THE COURT: And that you have the right to plead not guilty and to
persist in your plea of not guilty. You have a right to a jury trial, and
you have a right to be represented by counsel, and if necessary have the
Court appoint counsel. At trial in every stage of the proceeding you
have a right at trial to confront and cross examine the witness – adverse
witnesses to be protected from compelled self-incrimination, to testify
and present evidence, to compel the attendance of witnesses, and that
you’re – by pleading guilty, if I accept your – your plea of guilty, you’ll
be waiving all of these rights. Do you wish to waive your rights here
today?
[BERRYMAN]: Yes.
***
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THE COURT: If at any time during the course of my inquiry today,
you don’t understand something or you want to talk about something,
you want to ask Mr. Jacoby or myself, would you stop me?
[BERRYMAN] Yes, sir.
THE COURT: And alert me to that?
[BERRYMAN]: Yes.
THE COURT: Because part of my job is to communicate here with
you. All right Mr. Berryman?
[BERRYMAN]: Okay.
***
THE COURT: All right. You understand that if this case went to trial,
the government would have to prove these elements that we talked
about beyond a reasonable doubt. And by pleading guilty you’re
relieving them of that burden. They don’t have to prove anything at this
point in time. There won’t be a jury sitting over there in the jury box
and they won’t have to prove any of this. You’re saying – you’re
relieving them of that duty by pleading guilty; right?
[BERRYMAN]: Yes, your Honor.
THE COURT: No trial; right?
[BERRYMAN]: Yes.
***
THE COURT: And are you satisfied with his representation?
[BERRYMAN]: Yes, Your Honor.
THE COURT: Do you have any complaints about anything he did or
did not do on your behalf?
[BERRYMAN]: No, sir.
THE COURT: Did he spend sufficient time with you to talk to you
about your case, your options, your plea, your defense?

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[BERRYMAN]: Yes.
***
THE COURT: Has anyone threatened or abused you or your family to
cause you to enter a plea of guilty?
[BERRYMAN]: No, sir.
THE COURT: This is all – this is a voluntary decision that you’ve
made; is that right?
[BERRYMAN]: Yes, sir.
(Plea Tr. 3-20.)
Berryman’s claims are also contradicted by Mr. Jacoby’s affidavit addressing
Berryman’s claims. In his affidavit, Mr. Jacoby swore to the following under oath:
I explained to Mr. Berryman his options for resolving the case,
including his right to a trial, multiple times. I never told Mr. Berryman
that he could not have a trial in his case. After consulting with me, Mr.
Berryman made the decision to enter a plea of guilty, absent a plea
agreement with the government. Prior to Mr. Berryman’s guilty plea, I
explained his rights, including his right to a trial, and how he would be
waiving them in order to enter a plea. I also had him review a guilty
plea checklist which explained these rights. At the time of Mr.
Berryman’s guilty plea he was informed of his rights, including his
right to a trial, by the judge, U.S. District Court Judge D. Gregory
Kays. Mr. Berryman voluntarily entered a plea of guilty after being
informed of his rights, including his right to a trial, multiple times by
myself and by the Court.
Thus, it is clear from both the plea transcript and Mr. Jacoby’s affidavit that Berryman
was repeatedly informed by Mr. Jacoby and by the Court that he had the right to a trial, and that
such rights would be extinguished by entering a plea of guilty. The record also establishes that
Berryman was not forced to plead guilty and that he had plenty of time to have his questions
answered by his attorney and this Court.

Therefore, the Court find that Mr. Jacoby was not

ineffective and that Berryman did understand that he had a right to a jury trial.

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C. No evidentiary hearing is required.
“A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless the
motion and the files and the 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). “No hearing is required, however, ‘where the claim is inadequate on its face or
if the record affirmatively refutes the factual assertions upon which it is based.’” Id. (quoting
Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007)); see also Sanders v. United States,
341 F.3d 720, 722 (8th Cir. 2003) (“A § 2255 motion can be dismissed without a hearing if (1)
the petitioner’s allegations, accepted as true, would not entitle the petitioner 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.” (internal quotation marks omitted)).
No evidentiary hearing is required here because Berryman’s motion is out of time and because it
raises an issue that is contradicted by the record.
D. The Court declines to issue a certificate of appealabiltiy.
Berryman can appeal this Court’s decision to the Eighth Circuit Court of Appeals only if
this Court issues a certificate of appealability.

See 28 U.S.C. § 2253(c)(1)(B).

Because

Berryman’s claim is contradicted by the record, and the merits of the claim are not debatable
among reasonable jurists, this Court also declines to issue a certificate of appealability. Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Conclusion
For the reasons discussed herein, Plaintiff’s § 2255 motion is untimely and contradicted
by the record. Accordingly, Movant’s motion is DENIED. A hearing is not warranted because

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the record conclusively shows that Movant is not entitled to any relief. Finally, a certificate of
appealability shall not issue.
IT IS SO ORDERED.

Dated: April 25, 2012

/s/ Greg Kays
GREG KAYS
UNITED STATES DISTRICT JUDGE

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