Shakur v. USA
Filing
44
ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255). The Court declines to issue a certificate of appealability. Signed on 7/13/15 by Chief District Judge Greg Kays. (Francis, Alexandra) Modified on 7/13/2015 - mailed to movant (Francis, Alexandra).
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RASHEED SHAKUR,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 4:14-cv-0197-DGK
(Crim. No. 4:09-CR-00224-DGK)
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT JUDGMENT
This case arises out of Movant Rasheed Shakur’s (“Movant”) conviction on six counts as
the
ringleader
in
a
large-scale
conspiracy
to
distribute
marijuana,
cocaine,
and
methylenedioxymethamphetamine, popularly known as ecstasy. Pending before the Court is
Movant’s pro se “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
Pursuant by a Person in Federal Custody” (Doc. 1). Movant seeks to vacate his conviction and
sentence by asserting eighteen claims of error, most of which relate to claims of ineffective
assistance of counsel.
Finding no merit to any of Movant’s claims, the Court DENIES the
motion. The Court also declines to issue a certificate of appealability.
Factual Background and Procedural History
The following background and procedural history draws almost entirely from the Eighth
Circuit’s decision denying Movant’s direct appeal, United States v. Shakur. 691 F.3d 979 (8th
Cir. 2012).
Prior to trial, Movant declined to accept a plea deal which, if accepted by the Court,
would have led to a fifteen-year prison sentence. At trial, the Government introduced substantial
evidence establishing that Movant operated a multimillion dollar drug trafficking conspiracy.
Heard in one wiretap claiming to be Kansas City's “Michael Corleone” (of “The Godfather” film
series), Movant bankrolled everything from his associates’ legal expenses and family funerals to
his luxurious lifestyle. Pledged one associate, “Got foot soldiers out here like me, ready to kill
anything that moves for you.”
In early 2007, the Federal Bureau of Investigation (“FBI”) and Kansas City Police
Department began investigating the conspiracy. Their investigation produced evidence that,
during 2007, Hugo Rodriguez-Rodriguez procured marijuana in El Paso, Texas and, with his
associates, flew loads to Kansas City and delivered 2,880 pounds to Movant (as well as 31
pounds of cocaine). Later that year, officers stopped Rodriguez-Rodriguez and an associate
leaving Movant’s residence with $17,000 in cash. Officers persuaded the associate to work as a
paid informant. She provided numerous details of the conspiracy, which led to the seizure in
2008 of over $200,000, money destined for suppliers in Mexico. The suppliers then limited
Rodriguez-Rodriguez’s access to drugs, constricting Movant’s pipeline.
Seeking new sources, Movant established relations with Audel Delgado-Ordonez in
Phoenix, eventually obtaining some 2,500 pounds of marijuana. Movant flew to Arizona every
other week, packed eleven-pound quantities into boxes, and mailed the boxes from various
Phoenix post offices to various addresses in Kansas City. He and his associates then gathered
the boxes at his residence. The FBI obtained judicial authorization to wiretap Movant’s phones
from March 2009 to June 2009. As they collected details of Movant’s operation from the
wiretap, agents began intercepting packages to prove their contents. The conspirators devised
but never implemented a scheme to transport drugs from Phoenix to Kansas City via tractor
trailer to avoid losing packages in the mail. Throughout these operations, Movant purchased
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ecstasy pills and high-grade marijuana from Jesse Oliver in Sacramento, California, using a
similar mailing system.
On June 25, 2009, officers simultaneously executed search warrants at several
conspirators’ residences, seizing evidence and making arrests. Numerous indictments followed.
Twenty-nine others pleaded guilty; many testified for the Government against Movant.
After a ten-day trial, the jury convicted Movant on Counts One (conspiracy to distribute
1,000 kilograms or more of marijuana, five kilograms or more of cocaine, and some amounts of
ecstasy); Two (conspiracy to commit money laundering); Three (possession with intent to
distribute cocaine); Four (possession with intent to distribute marijuana); Nine (felon in
possession of a firearm); and Ten (possession of a firearm in relation to a drug trafficking
offense). On August 5, 2011, Movant appeared before the Court for sentencing and, after the
Court declined to continue the sentencing so he could obtain new counsel, chose to represent
himself. At the hearing’s conclusion, the Court sentenced Movant to the statutorily mandated
sentence of life imprisonment plus 60 months.1
The Eighth Circuit affirmed the convictions and sentence on August 30, 2012. On
February 27, 2014, Movant filed the pending motion to vacate his conviction under 28 U.S.C. §
2255. The Government does not dispute that the motion was timely filed.
Standard of Review
In a proceeding brought under 28 U.S.C. § 2255, the district court may “vacate, set aside
or correct [a] sentence” that “was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). A § 2255 petition “is not a substitute for a direct appeal, and is not
the proper way to complain about simple trial errors.” Anderson v. United States, 25 F.3d 704,
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Specifically, the Court sentenced him to life imprisonment on Count One; 240 months on Count Two; 360 months
on Count Three; 120 months on Counts Four and Nine; all to be served concurrently. The Court also sentenced him
to 60 months on Count 10, to be served consecutively, for a total term of imprisonment of life plus 60 months.
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706 (8th Cir. 1994) (internal citations omitted). Furthermore, where a movant does not bring a
claim on direct appeal, he can be barred from raising the claim in a § 2255 proceeding unless he
establishes: (1) cause for the procedural default and actual prejudice; or (2) that he is actually
innocent. Bousley v. United States, 523 U.S. 614, 622 (1998).
DISCUSSION
I.
Movant’s claims are meritless.
Movant’s memorandum of law (Doc. 13) asserts eighteen grounds for relief.2 All but
three of these (grounds Eight, Ten, and Eleven) assert that Movant received ineffective
assistance of trial counsel.
A.
Movant’s ineffective assistance of counsel claims are meritless.
To succeed on a claim of ineffective assistance of counsel, a movant must show that “(1)
trial counsel’s performance was so deficient as to fall below an objective standard of the
customary skill and diligence displayed by a reasonably competent attorney, and (2) trial
counsel’s deficient performance prejudiced the defense.” Armstrong v. Kemna, 534 F.3d 857,
863 (8th Cir. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687-94 (1984)). Judicial
review of trial counsel’s performance is highly deferential, “indulging a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional judgment.” Middleton
v. Roper, 455 F.3d 838, 846 (8th Cir. 2006). Trial counsel’s “strategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.” Strickland, 466 U.S. at 690. Strategic choices made in the shadow of a lack
of preparation or investigation, however, are not protected by the same presumption. Armstrong,
534 F.3d at 864.
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Although Movant’s amended motion (Doc. 6) asserts seventeen grounds for relief, he asserts eighteen in his more
comprehensive memorandum of law.
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To establish prejudice, a movant must show that the outcome would have been different
had counsel’s performance not been deficient.
If the movant cannot show a reasonable
probability that the outcome would have been different, he cannot show prejudice. DeRoo v.
United States, 223 F.3d 919, 925 (8th Cir. 2000). Failure to satisfy either prong is fatal to the
claim, and the court need not reach the performance prong if the defendant suffered no prejudice
from the alleged ineffectiveness. See Pryor v. Norris, 103 F.3d 710, 713 (8th Cir. 1997).
Particularly relevant to this case, the claims raised by the movant must go beyond mere
allegations and must not be so incredulous as to be unbelievable. See Blackledge v. Allison, 431
US 63, 74 (1977) (noting in the context of a collateral attack on a guilty plea that the
“presentation of conclusory allegations unsupported by specifics is subject to summary
dismissal, as are contentions that in the face of the record are wholly incredible”); United States
v. Bryson, 268 F.3d 560, 562 (8th Cir. 2001) (upholding the district court’s summary dismissal of
ineffective assistance of counsel claims because the movant failed to present sufficient
information for the court to apply the Strickland analysis).
This brings the Court to the most obvious problem presented with Movant’s motion and
briefing. As the Government aptly describes his filings,
As a whole, Shakur’s allegations are disorganized, rambling and
incomprehensible. Many of the individual claims allege dozens of
errors or omissions by defense counsel, none of which are properly
developed. Shakur largely presents only generic legal principles in
support of the claims, which are primarily built upon layers of
conclusory allegations. Shakur utterly fails to present a proper
Strickland analysis regarding any of the claims. Shakur fails to
establish prejudice or a reasonable probability that the results of
the proceeding would be different as a result of the claims.
Instead, Shakur simply asserts repeatedly, without any analysis,
that he would have been acquitted.
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Resp. (Doc. 31) at 11. The problem is particularly troublesome because Movant has filed more
than 800 pages of material in connection with his motion, including more than 200 pages of
argument. The Court has diligently waded through his filings and rules as follows.
Movant’s over-arching allegation appears to be that his attorney was so ineffective that
Movant was deprived of the right to present a defense. Movant is confusing the right to effective
assistance of counsel with the non-existent right to a successful defense.
The Sixth Amendment does not require for its satisfaction that the
actions of counsel result in a favorable outcome. Rather, its
requirement is met whenever the accused is supplied counsel who
exercises that judgment which might be expected of one trained in
the law and committed to the diligent application of its principles.
Taylor v. United States, 282 F.2d 16, 20 (8th Cir. 1960); Morreno-Espada v. United States, 666
F.3d 60, 64-65 (1st Cir. 2012) (“the Constitution pledges to an accused an effective defense, not
necessarily a perfect defense or a successful defense”).
Movant is also patently wrong that counsel was ineffective in any apparent way. During
its ten-day presentation, the Government presented literally hundreds of intercepted phone calls
and text message communications between Movant and various co-conspirators detailing the
conspiracy. These communications were corroborated by live testimony from numerous coconspirators and physical evidence including shrink-wrapped bundles of money, pounds of
drugs, and false tax returns. Trial counsel’s performance was the best that could be expected
given the volume of evidence possessed by the Government. See United States v. Kelly, 581
F.2d 152, 153 (8th Cir. 1978) (permitting a § 2255 court to rely on “its prior familiarity with the
criminal trial,” including personal recollection, “to conclusively resolve the factual issue raised
by petitioner.”). Trial counsel was intelligent, informed, and prepared. He filed the appropriate
motions, and, where prudent, made good objections and asked probing questions on cross-
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examination.
He gave a solid opening statement, articulated a coherent theory of defense
throughout the trail, and then gave the best closing argument possible. Movant’s claims are
facially unbelievable and should be summarily dismissed. See United States v. Bryson, 268 F.3d
at 562.
B.
Movant’s three remaining claims are meritless.
Movant’s three remaining grounds for relief are also meritless. In his eighth ground,
Movant contends he was entitled to have a jury find the fact of his prior convictions which
subjected him to an enhanced mandatory minimum. He was not. Sentence “enhancements based
on the fact of a prior conviction are an exception to the general rule that facts increasing the
prescribed range of penalties must be presented to a jury.” United States v. Abrahamson, 731
F.3d 751, 752 (8th Cir. 2013).
Movant’s tenth ground for relief is that the Court erred in denying his request to continue
the sentence hearing so he could hire a new attorney, instead granting his alternate request to
represent himself at sentencing. Movant previously raised this issue on his direct appeal, and the
Eighth Circuit affirmed. Shakur, 691 F.3d at 984. Because this issue was raised and decided on
direct appeal, absent an intervening change in controlling authority, Movant may not revisit this
issue in a § 2255 motion. Sun Bear v. United States, 644 F.3d 700, 702 (8th Cir. 2011).
Movant’s eleventh ground for relief is that counsel for the Government suborned perjury
by introducing evidence of a non-existent cocaine conspiracy. Although much of this claim is
incomprehensible, in relevant part Movant contends the Government’s witnesses lied, the
Government fabricated the text messages and evidence of cocaine, and counsel for the
Government knew about these lies and fabrication which violated his due process rights.
Because Movant could have raised this issue on direct appeal but did not, he cannot raise this
issue for the first time in his habeas petition. Bousley, 523 U.S. at 622.
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II.
No evidentiary hearing is required or will be held.
“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). “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)).
As discussed above, Movant’s claims are conclusively contradicted by the record or not
cognizable. Consequently, no evidentiary hearing is required or will be held.
III.
No certificate of appealability should be issued.
In order to appeal an adverse decision on a § 2255 motion, a movant must first obtain a
certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability should
be issued “only if the applicant has made a substantial showing of the denial of a constitutional
right.” Id. § 2253(c)(2). This requires the movant to demonstrate “that reasonable jurists could
debate whether (or for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle,
464 U.S. 800, 893 n.4 (1983)). In the present case, the Court holds no reasonable jurist would
grant this § 2255 motion, and so the Court declines to issue a certificate of appealability.
Conclusion
For the reasons discussed above, the motion (Doc. 1) is DENIED and the Court declines
to issue a certificate of appealability.
IT IS SO ORDERED.
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Date: July 13, 2015
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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