United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JEAN C. HAMILTON, District Judge.
This matter is before the Court on Movant Carlos Bryant's Motion to Vacate, Set Aside or Correct Sentence, filed on October 31, 2011 pursuant to 28 U.S.C. § 2255. (ECF No. 1). The motion has been fully briefed and is ready for disposition.
On August 27, 2009, Bryant was indicted on three counts: (I) being a felon in possession of a firearm that had previously traveled in interstate commerce, in violation of 18 U.S.C. § 922(g)(1); (II) possessing with intent to distribute more than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1); and (III) possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). (Indictment, Case No. 9-cr-550, ECF No.1). Bryant pled guilty to Count III on August 19, 2010 in exchange for the Government's promise to move for dismissal of Counts I and II. (Case No. 9-cr-550, ECF Nos. 95, 96).
In the Plea Agreement, Bryant agreed the Government would have proven the following facts beyond a reasonable doubt:
On January 7, 2009, in St. Louis County, in the Eastern District of Missouri, officers executed a valid state-level search warrant at the residence of the defendant, Carlos Bryant, at 6265 Tyndall, Berkeley, Missouri. They discovered in the residence distribution quantities of cocaine base, a digital scale, and a firearm. The cocaine base was tested by the drug laboratory and determined to constitute a substance containing cocaine base. The defendant admits that he possessed this cocaine base with the intent to distribute it. The firearm was discovered in close proximity to a large quantity of cocaine base. The defendant admits that he possessed this firearm in furtherance of his crime of possession with intent to distribute cocaine base. The firearm was examined by experts and determined to be a Sturm Ruger make, New Model Super Blackhawk model, .44 magnum caliber revolver. It was manufactured outside the State of Missouri and traveled in interstate commerce in order to reach the defendant's possession in Missouri on January 7, 2009. It was successfully test-fired and is capable of expelling a projectile by action of an explosive.
(Plea Agreement, Case No. 9-cr-550, ECF No. 96, at 8). Also pursuant to the plea agreement, Bryant waived (1) most of his appeal rights and (2) all rights to collateral review, "except for claims of prosecutorial misconduct or ineffective assistance of counsel." Id. at 3-4.
Bryant was primarily represented by two attorneys during the criminal proceedings against him. The first was appointed for him from the Federal Public Defender's Office. (Case No. 9-cr-550, ECF Nos. 5, 6). The second was retained by Bryant. (Case No. 9-cr-550, ECF Nos. 75, 103). Bryant's appointed counsel represented him through a substantial portion of the proceedings prior to Bryant's guilty plea. She filed several motions, including: (1) a motion for a hearing under Franks v. Delaware, 438 U.S. 154 (1978) to disclose the identity of a confidential informant used in the investigation of Bryant; and (2) a motion to suppress evidence and statements. (Case No. 9-cr-550, ECF Nos. 59, 61). The magistrate judge assigned to pre-trial matters recommended denial of both motions. (Case No. 9-cr-550, ECF No. 77). Bryant's retained counsel represented him during the guilty plea and sentencing.
Bryant filed this Motion on October 31, 2011 pursuant to 28 U.S.C. § 2255. He then filed two amendments to the original filing. (ECF Nos. 4, 8). The second amendment ("Motion"), which is operative here, raises several claims of prosecutorial misconduct and ineffective assistance of counsel. Based on these claims, Bryant seeks both a hearing and an unspecified correction of his sentence.
Under § 2255, a federal prisoner may seek relief on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack...." 28 U.S.C. § 2255(a). A reviewing court must hold an evidentiary hearing to consider claims in a § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255). Thus, a movant is entitled to an evidentiary hearing "when the facts alleged, if true, would entitle him to relief.'" Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). A district court should, however, dismiss without a hearing any "petition which consists only of conclusory allegations unsupported by specifics [or]... allegations that, in the face of the record, are wholly incredible, '...." Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985) (first alteration in original) (quoting Blackledge v. Allison, 431 U.S. 63, 73 (1977)).
A. Prosecutorial Misconduct
Bryant first claims his sentence should be altered based on prosecutorial misconduct. To demonstrate prosecutorial misconduct, a claimant must show that the prosecutor's actions were so egregious that they corrupted the truth-finding process in such a way as to have deprived the defendant of fundamental due process. Ray v. United States, 588 F.2d 601, 603 (8th Cir. 1978).
Bryant supports his claim with several factual allegations. He alleges in his Motion that the prosecutor "used invalid evidence consisting of an invalid search, unsigned lab reports, insufficient documentation, excluded informants [ sic ] testimony that relied on probable cause, threats and used an unsigned indictment to form a conviction regarding [Bryant]." (Motion, ECF No. 8, at 5). He alleges further that the prosecutor "produced and relied on insufficient evidence such as forged documentation, an invalid search, falsehood within the Affidavit regarding the Affiants [ sic ] sex, testimony and dates regarding the execution of the search and the year the search took place." Id. at 6. Bryant also alleges in his Reply that, prior to Bryant's evidentiary hearing, the ...