Ray v. United States of America
Filing
72
ORDER denying 39 Motion ; denying 41 Motion for Discovery; denying 45 Motion for Reconsideration ; denying 49 Motion ; denying 52 Motion for Reconsideration ; granting 62 Motion to Dismiss; denying 65 Motion to Extend ; denying 65 Motion ; denying 65 Motion to Produce. Signed by U.S. District Judge Lawrence L. Piersol on 5/11/22. Mailed to plaintiff. (SLW)
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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
*
TREVOR SCOTT RAY,
*
CIV 18-5033
*
Petitioner,
*
*
vs.
*
MEMORANDUM OPINION
*
AND ORDER
UNITED STATES OF AMERICA, *
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Respondent.
*
*
♦ ***#>!■*#**♦*♦*****»*♦♦♦♦♦♦***♦♦*■•<♦******♦**♦♦**♦♦*******♦♦**♦**♦»♦
Petitioner Trevor Scott Ray filed an Amended Motion to Vacate, Correct or
Set Aside Sentence pursuant to 28 U.S.C. § 2255. (Doc. 18). The United States has
responded and moved to dismiss. (Doc. 62). Defendant filed a response. (Doc. 69).
In his motion Ray raises a number of claims of ineffective assistance of counsel
against both trial and appellate counsel and a claim of "fraud on the court." For the
reasons set forth below, the motion is denied.
BACKGROUND
On March 17, 2015, Trevor Scott Ray was indicted on charges of conspiracy
to distribute a controlled substance, 21 U.S.C. §§ 846, 841(a)(1) and distribution of
a controlled substance, 21 U.S.C. §§ 841(a) and 841(b)(i)(B). Superseding
indictments on May 19, 2015, and June 9, 2015, included an additional charge of
possession of a controlled substance, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 18
1
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U.S.C. § 2. A jury convicted Ray of all charges on June 19, 2015, and he was
sentenced to 180 months. The Eighth Circuit affirmed his conviction on May 22,
2017,rejecting his claims that the evidence was insufficient. United States v. Ray,
690 Fed. Appx. 438,439(8thCir. 2017). Ray filed a motion for new trial (5;15-cr50043,Doc. l24)onJune 13,2017,raising claims of attorney and government
misconduct, conflict of interest of attorneys, and denial of the right to counsel of
choice. Judge Viken denied the motion, ruling that defendant had not produced
new evidence in accordance with the standard of Rule 33.(Id., Doc. 136). He
determined that defendant's evidence of a purported scheme by defense and
government counsel was not new, not material, and would not have resulted in
defendant's acquittal.(Id., PgID 1433). He further determined that any possible
conflict of interest in this alleged scheme was not relevant because it did not affect
the counsel who represented him at trial. (Id.,PgID 1435). Finally, he ruled that
the counsel who represented defendant at trial was qualified to do so, and rejected
Ray's motion for new trial on this ground. United States v. Ray,2019 WL 529300
(D. S.D. 2019). The Eighth Circuit affirmed,finding the district judge did not
abuse discretion in denying the motion. United States v. Ray, 788 Fed. Appx.
1041, 1042(8th Cir. 2019).
DISCUSSION
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A number of principles apply in addressing claims of ineffective assistance
of counsel. An individual making a claim ofthat nature must first show that
coimsel's performance was deficient, meaning that"counsel made errors so serious
that counsel was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Strickland v. Washington,466 U.S. 668,687, 104 S.Ct. 2052,
2064,80 L.Ed.2d 674 (1984;,- Collins v. United States, 28 F.4th 903,906(8th Cir.
2022). The individual also must show "prejudice," meaning "counsel's errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Strickland, 466 U.S. at 687. That is, petitioner must show "a reasonable probability
that... the result of the proceeding would have been different." Id. at 693-94. A
court does not review counsel's performance with a "checklist," and is highly
deferential in evaluating it. Id. at 688-89. There is a presumption that counsel's
performance is within the reasonable range of professional assistance and that
counsel's actions were "sound trial strategy." Id. at 689. Strategic decisions are
"virtually unchallengeable" unless they resulted from inadequate investigation. Id.
at 690. See also Meza-Lopez v. United States, 929 F.3d 1041, 1044-45 (8th Cir.
2019); Chavez-Cruz v. United States, 2018 WL 2383156, *2(D. S.D. 2018);
Pippengerv. United States, 2012 WL 3206244, *1 (D. S.D. 2012).
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The Strickland standard applies not only to trial, but to the first appeal as of
right. Evitts v. Lucey,469 U.S. 387, 396-97, 105 S.Ct. 830, 836, 83 L.Ed.2d
(1985); Pippenger, 2012 WL 3206244, *1.
PETITIONER'S MOTION
A. Ray's Ground I—Ineffective assistance of Counsel
1. Ineffective Assistance ofCounsel—failed to movefor mistrial
Ray argues counsel's performance was deficient when he failed to move for
a mistrial when "extraneous influences" were brought before the jury. These
alleged extraneous influences were Ray's brother and another man making motions
during a witness's testimony. The trial judge observed the conduct, and in a
sidebar asked counsel for the government and defense to address whether a
response was appropriate. Counsel apparently agreed that instructing the jury,
which may not have observed the conduct, would gamer unwanted attention to the
matter. (Doc.64,PgID 352-53). The trial judge asked one ofthe prosecutors to
advise the individuals to cease the behavior, and did not instmct. There is no
indication the individuals engaged in any further conduct of concern.
Issues of possible spectator misconduct have arisen in many contexts. See
Remmer v. United States, 347 U.S. 227, 229,74 S.Ct. 450,96 L.Ed. 654(1954)
(unauthorized contact with juror). In Garcia v. Bertsch, 470 F.3d 748, 754-56(8th
Cir. 2006), for example, two or three jurors spoke to the victim's family. Absent
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any indication ofthe content ofthe conversation, defendant failed to prove actual
prejudice from counsel's failure to report the contact Id. In United States v.
Brown,923 F. 2d 109, 111-12 (8th Cir. 1991), the court addressed the problem of a
spectator staring at the jury and concluded the conduct did not trigger a
presumption of prejudice. Staring to intimidate jurors also was at issue in Ibarra v.
Ludwick, 2019 WL 12021756(S.D. Iowa 2019)(adopting report and
recommendation)(certificate of appeal dismissed 2019 WL 12336488 (8th Cir.
2019)). The court determined no evidence suggested the spectator's conduct
influenced the jury, the matter was addressed by the trial court, and no prejudice
was established. 2019 WL 12021756, *8.
Furthermore, as many courts have noted,"courts give great deference to
counsel's informed strategic decisions." PIppenger, 2012 WL 3206244,*3 (citing
Middleton v. Roper,455 F.3d 838,848-49(8th Cir. 2006); Laws v. Armentrout,
863 F.2d 1377, 1393(8th Cir. 1988)). In the present case, counsel's decision not
to highlight the issue by asking for a mistrial or instruction was a strategic decision
that was reasonable under the circumstances: no juror raised the issue; there was
no indication the jurors saw the conduct; counsel cautioned the individuals to make
no further hand motions; there was no indication of further activity by these
spectators. Counsel chose not to draw additional attention to the spectators'
conduct, which can be reasonable trial strategy. Chavez-Cruz, 2018 WL 2383156,
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♦3. Counsel's performance was not deficient under Strickland. Likewise, there
was no prejudice to defendant, particularly given the lack of any evidence the
jurors saw the conduct.
2. Ineffective assistance ofcounsel—failure to raise an issue ofdenial of
counsel ofchoice involving an attorney who represented Ray previously
Ray argues his counsel should have argued Ray was denied counsel of
choice when his previous attorney (Rusch)introduced him to the brother of another
attorney (Rensch)and that the non-attorney brother later was implicated in illegal
activity. Ray argues this created a conflict that kept him from having Rusch
represent him, and that somehow, misconduct was afoot when Rusch declined to
represent him. This argument misapprehends the term "counsel of choice"~that
term does not mean Ray would necessarily be able to retain his prior counsel for
his criminal case. United States v. Gonzalez-Lopez, 548 U.S. 140, 146-48, 126
S.Ct. 2557, 2562-64, 165 L.Ed.2d 409(2006)(discussing parameters of right to
counsel of choice). As the Supreme Court explained in Wheat v, United States in
discussing the right to counsel ofchoice, the "essential aim" ofthe Sixth
Amendment is to:
guarantee an effective advocate for each criminal defendant rather than to
ensure that a defendant will inexorably be represented by the lawyer whom
he prefers (citations omitted)....The Sixth Amendment right to choose one's
own counsel is circumscribed in several important respects. Regardless of
his persuasive powers, an advocate who is not a member ofthe bar may not
represent clients(other than himself) in court. Similarly, a defendant may
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not insist on representation by an attorney he cannot afford or who for other
reasons declines to represent the defendant. Nor may a defendant insist on
the counsel of an attorney who has a previous or ongoing relationship with
an opposing party, even when the opposing party is the Government.
Wheat, 486 U.S. 153, 160, 108 S.Ct 1692, 1697,100 L.Ed.2d 140(1988).
Myriad reasons exist for counsel not to represent someone in a criminal case. It
was not deficient performance for Ray's trial counsel to forego raising this as an
issue "to preserve it for appellate review," as Ray now asserts. (Doc. 18, PgID
117).
Furthermore, Ray relies on "information and belief to assert that the Rensch
Law Firm paid the legal fees ofthe brother of the Rensch Law Firm's partner, and
negotiated for the brother to testify against Ray, the firm's former client. The
Court takes such an allegation seriously. The allegation was raised in Ray's motion
for new trial, in which he alleged outrageous government misconduct, conflicts of
interest by counsel, and denial of counsel. (5;15-cr-50043, Doc. 136). As
described by the court in that filing, Ray "alleges the government interfered with
his attorney-client relationship and collaborated with his attomey...to build a case
against him in exchange for not developing a case against...the brother ofone of
the attorneys in a law firm Mr. Ray used for his personal business."(Id., PgID
1428). The court considered the evidence in support ofthe theory, including a
letter from an attorney laying out such a conspiracy theory in a related case.(5:14cr-50100. Doc. 225,Ex. 7). This Court takes judicial notice of a court filing in die
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habeas case following conviction in that criminal case, in which the attomey
repudiated the letter.(5;20-cv-5039, Doc. 40). The attorney's justification for
drafting its damaging allegations was that he was putting in writing his client's
conspiracy theories.(Id.) In any event, Ray's motion for a new trial was denied.
2019 WL 529300(D. S.D. 2019). The Eighth Circuit affirmed, finding the trial
judge did not abuse discretion in denying the motion for new trial. 788 Fed. Appx.
1041 (8th Cir. 2019).
Ray's allegations of attomey misconduct were resolved against him in his
motion for new trial, which was affirmed by the Eighth Circuit. This Court has
examined the allegations as well, in an effort to ascertain whether any newlydiscovered relevant evidence supports Ray's claim. There is no such evidence, and
the court determines counsel's performance was not deficient under Strickland for
failing to raise a motion conceming attomey misconduct. The Court further finds
Ray suffered no prejudice, given that raising such a motion would have had no
impact on the verdict. Finally, Ray's claim is barred, given that the Eighth Circuit
considered it and resolved it against him.
5. Ineffective assistance ofcounsel—failure to investigate documents and
interview witnesses
Ray alleges counsel was ineffective in not investigating supposedly forged
documents and interviewing witnesses. Counsel's response is that he did review
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documents with Ray and with at least one other witness, and that he did interview
witnesses(Doc. 50,^ 7). Counsel added that his interviews developed additional
incriminating evidence against Ray,and he elected not to pursue certain lines of
questioning in detail.(Id.)
Counsel's strategy of minimizing damage to his client based on evidence
gleaned from witnesses was reasonable. Meza-Lopez,929 F.3d at 1044-45. Ray
has not established that counsel's performance was deficient under Strickland.
4. Denial of due process—late disclosure of exculpatory material
Ray alleges he was denied due process in violation ofthe Fifth Amendment.
He claims the government used "perjured testimony and fictitious business
records" which establishes "prejudice" due to "a fraud upon the court" being
perpetrated, and this was connected to deficient performance by counsel. Ray's
allegations appear to be related to his averments immediately above but are not
supported with any evidence. He alleges a violation ofBrady v. Maryland,373
U.S. 83(1963).
It is true that the government provided documents to the defense in the
midst oftrial as reflected in the transcript. Both the defense and Government agree
defense counsel did not request a continuance and stated to the court that he would
review the documents that evening in preparation for his cross-examination of a
witness the next day. Counsel raised no objection when trial resumed that he was
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unable to review the material.(Doc. 50,17). Ray alleges the documents were
"false" in some way but there is no evidence to support that they were exculpatory
or that the outcome of trial would have been different had they been given to
defense counsel earlier.
Ray did not raise this claim on direct appeal, and to that extent his claim is
procedurally barred. See, e.g., Feather v. United States, 2020 WL 5517198,*3(D.
S.D. 2020) 2255 is reserved for "transgressions of constitutional rights" and
(§
certain injuries that could not have been raised on direct appeal). Furthermore, he
has not established that he is actually innocent. Bousley v. United States, 523 U.S.
614, 622(1998).
5. Denial ofequal protection
Ray claims the trial court "allowed" a witness against Ray to commit perjury
(Doc. 18, PglD 129), and this denied him equal protection. The Court discerns no
equal protection violation. The claim appears to be grounded in a general
allegation of unfairness, and this Court discerns none: the case was tried to a jury
which issued a guilty verdict; the judge was careful in ruling on issues that arose;
counsel for the defendant was qualified and rendered performance that was not
deficient under Strickland.
The Court further notes that the trial judge in this case did not"allow" a
witness to commit perjury. The trial judge held a sidebar to determine whether a
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witness had violated a sequestration order and determined it did not occur(Doc.
50,^ 8). Counsel then had no basis to impeach on this issue. (Id.) Contrary to
Ray's assertion, the judge did not "allow dishonest testimony" and did not thereby
"co-sign for the witnesses credibility." (Doc 18., PgID 129). Iftherewasan
inconsistency in the witness's testimony, the jury could consider it in the context of
witness credibility. Contrary to Ray's claim, he did not suffer prejudice in this
context, given the judge's inquiry and counsel's appropriate response.
6. Ineffective assistance ofcounselforfailure to object to chain ofcustody
As in indicated in the trial transcript and defense counsel's affidavit,(Doc.
50,^ 9), counsel did cross-examine on chain of custody. A law enforcement
officer testified that an evidence bag was used and that he wrote the name ofthe
custodial officer on the bag. This was not a forged signature. The witness
explained that it was merely a means of identifying the officer in charge ofthe
evidence. The witness explained that the officer who seized the evidence sealed
the bag and put his signature on the seal. Counsel challenged the procedure
through at least two witnesses. His performance was not deficient under
Strickland.
7. Ineffective assistance ofcounselforfailing tofile a motion to suppress
evidence
Methamphetamine was seized from a car and storage locker and was
introduced into evidence against Ray. Ray argues a motion to suppress should
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have been filed, even if it was futile, to educate the defense about the government's
case and provide "grist" for cross-examination(Doc 18., PgID 131). Ray's trial
counsel addressed this averment by responding that Ray wanted the trial held as
quickly as possible in hopes of catching the government unprepared, and therefore
wanted no delays including one that would be occasioned by a motion to suppress.
(Doc. 50,110). Counsel also asserted he discussed this with Ray, and they agreed
appropriate trial strategy was to demonstrate Ray had no connection with the
seized evidence. (Id.) This was the strategy ultimately pursued throughout trial.
Ray offers no evidence to suggest a motion to suppress would have been
successful, and apparently recognizes the futility of raising one.(Doc. 18, PgID
130). Therefore, counsel's performance in not raising such a motion was not
deficient. Ray suffered no prejudice because there is no indication the motion
would have been successful or that the outcome of his trial would have been
different.
8. Ineffective assistance ofcounsel in not askingfor ajury instruction
regarding conspiracy
To prove a conspiracy, the government must establish "(1)the existence of a
conspiracy with an illegal purpose,(2)that the defendant was aware ofthat
conspiracy, and(3)that he knowingly became a part of it." United States v.
Ramirez, 350 F.3d 780, 783 (8th Cir. 2003)(cleaned up). Furthermore,there must
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be an agreement with "at least one other person." Id. The conspiracy may be
proved by circumstantial evidence and inferences from relevant conduct. Id. The
Ramirez court also ruled the statements of defendant could be considered even if
made during a controlled buy because they showed his involvement in a wider
conspiracy and ioiowledge of the drug distribution from past purchases from
defendant. Id.
Ray's defense counsel requested a jury instruction that describes the buyer-
seller relationship rather than a conspiracy to distribute a controlled substance
(5:15-cr-50043, Doc. 28,Proposed Instr. 2). The trial judge declined to give it, but
instructed broadly on conspiracy at Instructions 6, 8,9.(Id.) The Court has
reviewed the jury instructions given on conspiracy and determines they accurately
and adequately explain the applicable law. Counsel did not render deficient
performance under Strickland with respect to his handling of instructions.
Ray argues counsel should have asked the court to instruct that for a
conspiracy conviction, the government must prove defendant conspired with
someone odier than a government agent. Ray argues two ofthe alleged co-
conspirators were informants. As defense counsel has noted in his affidavit, during
part ofthe pertinent timeffame one ofthe informants was acting on his own
without the knowledge of law enforcement(Doc. 50, Tf 11). The other individual
named by Ray was apparently not an informant.(Id.). Furthermore, as counsel
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states, tiiere was"no factual basis" to ask for the instruction Ray claims should
have been given.(Id.).
Equally, if not more,important is that Ray raised insufficient evidence as the
basis for his direct appeal. In rejecting his claim diat the evidence was insufficient
to support the conspiracy conviction, the Eighth Circuit addressed the role ofthe
two individuals Ray claims were informants that would have justified an additional
instruction. Ray, 690 Fed. Appx. at 442. The court discussed the conduct of these
individuals at length, and made clear their involvement was as co-conspirators. Id.
Ray did not challenge the jury instructions specifically in his appeal, and to that
extent his claim is procedurally barred. Bousley, 523 U.S. at 622; Feather, 2020
WL 5517198.
9. Ineffective assistance ofcounselforfailing to object to ten instances of
witnesses statingfacts not in evidence, amounting to deficient performance
Ray challenges counsel's performance relating to six instances ofreferences
to keys; lack of foundation for Exhibit 12A; failing to object to a witness not on the
witness list; failing to object to a "forgery" on an evidence bag; and an erroneous
reference to the owner of a car. Ray argues the cumulative effect ofthese errors
resulted in prejudice.
The Court has addressed several ofthese issues above, in claims Ray raised
separately. As to the remaining claims, the Court first states that counsel has an
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obligation of candor to the court. Nix v. Whiteside, 475 U.S. 157, 169,106 S.Ct.
988, 995, 89 L.Ed.2d 123(1988). Counsel answered truthfully that he was not
surprised when the government called a witness not on the witness list. This did
not amount to deficient performance by counsel.
The Court has resolved that there was no "forgery" presented to the trial
court, and therefore, no deficient performance from not objecting to any
purportedly "forged" documents.
The foundation for Exhibit 12A was laid by government witnesses after
defense counsel objected. The foundation was sufficient at identifying the item
and chain of custody. Counsel's performance was not deficient in failing to renew
the objection.
Ray misstates the evidence when he fails to recognize defense counsel's use
ofthe term "supposedly" when referring to keys to frie Corvette. (Doc. 18, Pgid
136). The Court discerns no error in counsel for both sides referring to "Ray's
Corvette" rather than to "the Corvette Ray was driving" when arrested. Any
reference to "Ray's keys" clearly means the keys to the car Ray was driving, rather
than to his ownership ofthe car.
The Eighth Circuit addressed the key to the storage unit in Ray's direct
appeal. The court concluded the evidence was sufficient to convict Ray of
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possession ofthe methamphetamine in the storage unit, because he constructively
possessed the methamphetamine. The court stated:"When arrested, Ray had in his
possession a key to the storage unit, as well as drug paraphernalia and more than
$9,000 in cash." Ray,690 Fed. Appx. at 444. The court noted he had obtained
access to the storage imit previously, and also recognized that Ray did not have
exclusive possession of the unit because another person also had a key.
Nevertheless even though Ray did not have "exclusive" dominion and control over
the unit, he did have possession of its contents given his cooperation with that
other persoa Id. at 443-44.
To the extent there was any confusion or misstatement by a witness, there is
no evidence of misconduct as Ray asserts is similar to that in Berger v. United
States, 295 U.S. 78 (1935). Furdiermore, if there was deficient performance in
failing to object to a witness's misstatement, there is no evidence Ray was
prejudiced.
B. Ray's Ground II—^Fraud Upon the Court
Ray raises a challenge to the court's jurisdiction based on a "sovereign
citizen" theory. His argument has no basis. Such arguments have been determined
to be "without merit" and "patently frivolous. United States v. Jagim,978 F.2d
1032, 1036(Sdi Cir. 1992). See also United States v. Hart, 701 F.2d 749, 750(8th
Cir. 1983)(appeal arguing lack ofjurisdiction over "sovereign citizen" was
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"frivolous"); United States ex rel. Goldsmith v. Schreier, 2012 WL 4088858,*4
(D.S.D. 2012)(holding "sovereign citizen" theory "patently frivolous"). His
motion for relief based his Ground II is denied.
C. Ray's Ground III—ineffective assistance of appellate counsel
Ray argues in his Ground III that appellate counsel was ineffective for
failing to "argue all ofthe above grounds for relief on first direct appeal."(Doc.
18,PgID 141). The Court interprets this to mean all ofthe issues in Ray's
Grounds I and II previously discussed in this Memorandum. As appellate counsel
has indicated, he did not raise any issues concerning ineffective assistance of
counsel because that issue is properly dealt with postconviction. (Doc. 40).
Counsel also expressed that he did not perceive any "fraud on the court" and was
unfamiliar with a"BAR attorney" that Ray discusses in Ground II of his petition.
(Id.). The Court determines counsel's performance was not deficient in
determining there were no issues for appeal in Grounds I and II and Ray suffered
no prejudice.
Ray also asserts appellate counsel erred "when at sentencing the
enhancements on the P.S.R. were argued and they failed to argue them on appeal."
(Doc. 18, PgID 141). Ray's counsel for sentencing filed ten objections to the
presentence report and argued them at a lengthy sentencing hearing before Judge
Viken. (Doc. 105,115). Two ofthe coimts of conviction required minimum
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sentences often years. Ray was sentenced to 180 months, which was a variance
from the sentencing guidelines which authorized a maximum oflife in prison. Ray
had requested a reduction in his base level offense which would have authorized a
sentence of 168-210 months and the sentence imposed was at the low end ofthat
request. Counsel argued against the enhancements for possession of a firearm, use
of violence, maintaining a place for manufacture and distribution of drugs, role in
the offense and obstruction ofjustice. (Id.).
Appellate counsel's affidavit indicates he considered each of these issues in
preparing his appeal and concluded they should not be raised. On the firearm
issue, the judge overruled the objection to the enhancement based on his
observation oftrial testimony on the issue. (Doc 40,PgID 226). Likewise, the
court overruled objections for die same reason to the enhancements for use of
violence (id., PglD 227), obstruction (id., PgID 229), and role in the offense (id).
Counsel was not ineffective in concluding an appeal on these issues would be
fruitless, given the testimony and the judge's observations at trial. Counsel also
relied on the Eighth Circuit's affirmance of Ray's conviction,(id., PgID 227), as a
basis for not appealing the maintaining a place for manufacture and distribution of
drugs, given the court's holding that Ray constructively possessed the drugs in the
storage unit. Ray,690 Fed. Appx. at 443-44. Once again, counsel made a strategic
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decision that the issue would not be successful on appeal, and that strategic
decision did not amount to deficient performance.
As noted, counsel did appeal issues he thought would be the strongest bases
for appeal. He challenged the sufficiency ofthe evidence for the conspiracy count,
arguing that at most, the Government had established a buyer-seller relationship.
He argued the evidence was insufficient to establish that Ray distributed drugs to
another person, on the theory that person's testimony was unreliable as a matter of
law. He argued the evidence was insufficient to establish possession of
methamphetamine found in a storage unit rented by another person. The Eighth
Circuit affirmed the conviction, addressing these arguments in detail. Ray,690
Fed. Appx. 438.
Ray was entitled to effective assistance of counsel on appeal. Evitts, 469
U.S. at 396-97; Pippenger, 2012 WL 3206244, *1. He has not established that
appellate counsel's performance was deficient. Likewise, he has not shown that he
was prejudiced, memiing that there was a reasonable probability of a different
outcome.
D. Evidentiary Hearing
Petitioner has requested an evidentiary hearing. The Eighth Circuit has
determined that a court resolving a § 2255 motion need not conduct an evidentiary
hearing if the petitioner is not entitled to relief even if the allegations are true, or if
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the allegations c^not be accepted as true because they are "contradicted by the
record, inherently incredible, or conclusions rather than statements offact."
Guzman-Ortiz v. United States, 849 F.3d 708,715 (8th Cir. 2017)(quoting United
States V. Sellner, 773 F.3d 927, 929-30(8th Cir. 2014)). See also Chavez-Cruz,
2018 WL 2383156, *5.
Here, an evidentiary hearing is not required. As the Eighth Circuit has
noted, a petition with numerous claims does not demonstrate that habeas relief is
warranted simply based on the number of allegations. Winters v. United States,
716 F.3d 1098, 1103(8th Cir. 2013). In this case, the Court has extensive
information and can determine from the § 2255 motion and the supporting record
that Ray is not entitled to habeas relief.
CERTIFICATE OF APPEALABILTY
A petitioner may not appeal the denial ofa § 2255 motion unless the district
court issues a certificate of appealability. Miller-El v. Cockrell, 537 U.S. 322,335
(2003). A certificate is authorized "only if the applicant has made a substantial
showing ofthe denial of a constitutional right." 28 U.S.C. § 2253(2). The
Supreme Court has instructed that a "substantial showing" exists where
"reasonable jurists would find the district court's assessment ofthe constitutional
claims debatable or wrong." Slack v. McDaniel,529 U.S. 473,484(2000). See
generally Chavez-Cruz, 2018 WL 2383156, *5;Pippenger, 2012 WL 3206244, *5.
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Case 5:18-cv-05033-LLP Document 72 Filed 05/11/22 Page 21 of 21 PageID #: 497
Ray has not complied with this standard by showing that the district court's
resolution of his claims is "debatable or wrong." Therefore, a certificate of
appealability will not issue.
Accordingly,IT IS ORDERED;
1.
That Trevor Scott Ray's Amended Motion to Vacate, Correct or
Set Aside Sentence pursuant to 28 U.S.C. § 2255, Doc. 18, is
denied.
2.
That die United States of America's Motion to E>ismiss, Doc.62,
is granted.
3.
That Petitioner Ray's Motions Doc.39,41,45,49,52,and 65,are
denied.
4.
That a Certificate of Appealability is denied.
Dated this
day of May,2022.
BY THE COURT:
Lawrence L. Piersol
ATTEST:
MATTHEW W.THELEN,CLERK
United States District Judge
21
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