United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This case is a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Vernis Farmer. On April 29, 2010, Farmer was found guilty by a jury of the offense of False Statement of a Material Fact in Determining Rights to Payment and Failure to Disclose Event to Social Security, and on September 13, 2010, this Court sentenced Farmer to the Bureau of Prisons for a term of 21 months, a sentence within the sentencing guideline range. Farmer's § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.
I. PROCEDURAL HISTORY
Defendant was convicted of making a false statement to obtain Social Security Disability benefits and knowingly concealing that he earned wages above the income threshold and was sentenced to 21 months imprisonment and ordered to pay restitution. Farmer appealed the sentence as being substantively unreasonable, but the Eighth Circuit Court of Appeals affirmed the District Court. United States v. Farmer, 647 F.3d 1175 (8th Cir. 2011). Farmer subsequently filed a motion to vacate the sentence pursuant to 28 U.S.C. § 2255, herein.
II. NEED FOR EVIDENTIARY HEARING AND BURDEN OF PROOF
28 U.S.C. § 2255 provides, in pertinent part:
Unless the motion and the files and records of the case conclusively show that the prisoner is not entitled to relief, the court shall... grant a prompt hearing thereon. Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Court states:
The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits in the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified.
When a petition is brought under § 2255, the petitioner bears the burden of establishing the need for an evidentiary hearing. In determining whether petitioner is entitled to an evidentiary hearing the court must take many of petitioner=s factual averments as true, but the court need not give weight to conclusory allegations, self interest and characterizations, discredited inventions, or opprobrious epithets. United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993). A hearing is unnecessary when a Section 2255 motion (1) is inadequate on its face, or (2) although facially adequate is conclusively refuted as to the alleged facts by the files and the records of the case. Id. at 225-6. See also United States v. Robinson, 64 F.3d 403 (8th Cir. 1995); Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).
When all the information necessary for the court to make a decision with regard to claims raised in a 2255 motion is included in the record, there is no need for an evidentiary hearing. Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993). An evidentiary hearing is unnecessary where the files and records conclusively show petitioner is not entitled to relief. United States v. Schmitz, 887 F.2d 843, 844 (8th Cir. 1989); Dall v. United States, 957 F.2d 571, 573 (8th Cir. 1992).
A. SOCIAL SECURITY RECORDS WERE PROPERLY INTRODUCED AT TRIAL.
Farmer alleges in his first ground that he received ineffective assistance of counsel when his trial attorney failed to object to the admission of business records at the trial on the basis that they were hearsay. The gist of Farmer's argument is that Government witness Tamera Smith, an employee from the Social Security Administration (SSA) testified about a number of documents prepared by herself and other employees from Farmer's official file with the SSA which constituted evidence of his crimes. According to Farmer, there should have been an objection raised, because the documents "were not self-authenticating and did not fit within any hearsay exception.
This contention is simply wrong. The records in question were clearly records of regularly conducted activity on the part of the SSA relating to Farmer's fraudulent claim, his verification of that claim and the payments that he received as a result of his fraudulent claim. Federal Rule of Evidence 803(6) specifically provides that such records are ...