United States District Court, E.D. Missouri, Southeastern Division
CAROL E. JACKSON, District Judge.
This matter is before the court on the motion and supplemental motion of Justin Wesley Kennedy to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. The United States has filed responses in opposition, and the issues are fully briefed.
On February 16, 2010, Kennedy pled guilty to conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 846. According to the facts he stipulated to in the plea agreement, Kennedy and two others traveled to several stores in Cape Girardeau, Missouri where they purchased pseudoephedrine pills and other items used in manufacturing methamphetamine.
The presentence investigation report revealed that Kennedy had prior state felony convictions for attempted manufacture of methamphetamine, possession of ephedrine with intent to manufacture methamphetamine, and manufacturing a controlled substance. The court determined that Kennedy was a career offender as defined in U.S.S.G. § 4B1.1(a). As a result, the advisory sentencing guideline range was 151-188 months, based on a total offense level of 29 and a criminal history category of VI. Kennedy's attorney did not object to the career offender designation. However, he filed a sentencing memorandum setting forth reasons justifying a sentence below the guideline range. At the sentencing hearing, defense counsel again argued for a sentence below the range. Kennedy was sentenced to a 151-month term of imprisonment. His appeal of the judgment was dismissed.
In the motion and supplemental motion to vacate, Kennedy asserts claims of ineffective assistance of counsel. To prevail on an ineffective assistance claim, a movant must show that her attorney's performance fell below an objective standard of reasonableness and that she was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first Strickland prong, there exists a strong presumption that counsel's conduct falls within the wide range of professionally reasonable assistance. Id. at 689. In Strickland, the Court described the standard for determining an ineffective assistance claim:
[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. in making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
Strickland, 466 U.S. at 690.
To establish the "prejudice" prong, the movant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. The failure to show prejudice is dispositive, and a court need not address the reasonableness of counsel's performance in the absence of prejudice. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
A. Failure to file motion to suppress
Kennedy's first ineffective assistance claim is that defense counsel should have filed a pretrial motion to suppress evidence. Kennedy argues that the warrantless search of his vehicle was unlawful and that the evidence seized from the vehicle and all evidence obtained as a result of the unlawful seizure ("fruit of the poisonous tree") should have been suppressed.
Before pleading guilty, Kennedy appeared before a magistrate judge and voluntarily waived his right to file pretrial motions. In light of his waiver, Kennedy cannot demonstrate that his attorney's failure to file a motion to suppress fell below an objective standard of reasonableness. Further, Kennedy presents no facts supporting his allegation that the stop of his vehicle was pretextual or facts otherwise showing that a motion to suppress evidence would have been successful. Indeed, the facts Kennedy stipulated to in the plea agreement ( i.e., the officers' observation of Kennedy and his accomplices purchasing items used for manufacturing methamphetamine) show that there was probable cause for the search of his vehicle. As such, the police were not required to obtain a search warrant. Carroll v. United States, 267 U.S. 132 (1925). See also Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) ( per curiam )("If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to ...