United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. RICHARD WEBBER, Senior District Judge.
This matter comes before the Court on Movant Lamarvin T. Darden's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 by a person in Federal Custody. [ECF No. 1].
On August 10, 2010, an officer with the St. Louis County Police Department observed an individual, later identified as Lamarvin T. Darden ("Darden"), approach a vehicle near a local apartment complex. Criminal Docket (CD) ECF No. 162 at 4. As the officer approached the vehicle, Darden began walking away and the vehicle drove away. Contact was made with Darden who stated he was looking for a ride home. A consent search was conducted of Darden's person, and officers detected a golf-ball sized bulge in the groin area of the Darden's pants. Believing the substance may be narcotics, the officers asked Darden what the object was, at which time Darden appeared to be very nervous and attempted to pull away from the officers. A plastic bag then fell from Darden's shorts onto the ground. Officers seized the bag, which contained twenty-five white pills of an off-white rock like substance (later identified as 1.03 grams of cocaine base). Darden was arrested and later released pending the application of a warrant. CD ECF No. 162 at 4.
On October 14, 2010, officers established surveillance at Darden's residence prior to the execution of a search warrant. As officers observed Darden and another individual exit the residence and prepare to enter his vehicle, officers detained both individuals. Darden was observed throwing a half-full bottle of cough syrup through the open front driver's window of his vehicle. Analysis of the contents of the bottle indicated Hydrocodone had been mixed with other active ingredients of the cold medicine. CD ECF No. 162 at 4.
A search of the residence was conducted and a ballistic vest, along with a nine millimeter semi-automatic firearm loaded with one round in the chamber and five rounds of ammunition in the magazine, was seized from an upstairs bedroom. CD ECF No. 162 at 4.
On May 26, 2011, a jury found Darden guilty of Count I, possession of cocaine base with the intent to distribute under 21 U.S.C. § 841(a)(1) and 851(a); Count III, possession of a firearm by a felon under 18 U.S.C. § 922(g)(1); and Count IV, possession of a firearm by an unlawful user of a controlled substance 18 U.S.C. § 922(g)(3). Darden was acquitted on Count II, possession with intent to distribute hydrocodone, and Count V, possession of body armor by a violent felon. CD ECF No. 136. Darden was sentenced to a total term of 200 months. This term consisted of 200 months on counts one and three, and 120 months on count four to be served concurrently. Darden was also sentenced to six years of supervised release and a $300.00 special assessment was imposed. CD ECF No. 167.
Darden filed a direct appeal with the Eighth Circuit arguing "his conviction should be reversed because the Government committed misconduct during grand jury proceedings, the District Court erred by admitting testimony regarding an xbox video game console and a.45 caliber pistol because it was not relevant and unfairly prejudicial, and the Government's closing argument contained improper remarks that substantially prejudiced his right to a fair trial." U.S. v. Darden, 688 F.3d 382, 386 (8th Cir. 2012). The Eighth Circuit affirmed the judgment of the District Court. Id. at 391.
II. LEGAL STANDARD
A federal prisoner who seeks relief from a sentence on grounds "that the sentence was imposed in violation of the Constitution or the 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, may move the court which imposed the sentence to vacate, set aside, or correct the sentence." 28 U.S.C. § 2255(a). To obtain relief under § 2255, the movant must establish a violation constituting "a fundamental defect which inherently results in the miscarriage of justice." U.S. v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting U.S. v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)). "Issues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on [§ 2255], " and the Eighth Circuit has only deviated from that general rule in cases involving convincing new evidence of actual innocence or similarly extraordinary circumstances. See U.S. v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001).
Claims brought under § 2255 may also be limited by procedural default. A movant "cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not." Anderson v. U.S., 25 F.3d 704, 706 (8th Cir. 1994) (citing Bedford v. U.S., 975 F.2d 301, 313 (7th Cir. 1992)). Claims, including those concerning constitutional or jurisdictional issues, unraised on direct appeal cannot be subsequently raised in a § 2255 motion unless the movant can establish "(1) cause for the default and actual prejudice or (2) actual innocence." U.S. v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. U.S., 523 U.S. 614, 621 (1998)).
If a movant is not procedurally barred from bringing a § 2255 motion, the Court must hold an evidentiary hearing to consider claims made therein "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Shaw v. U.S., 24 F.3d 1040, 1043 (8th Cir. 1994). Thus, a movant is entitled to an evidentiary hearing as long as "the facts alleged, if true, would entitle [the movant] to relief." Payne v. U.S., 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). A court may dismiss a claim without an evidentiary hearing, in contrast, "if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Shaw, 24 F.3d at 1043 (citing Larson v. U.S., 905 F.2d 218, 220-21 (8th Cir. 1990)).
Darden asserts twelve grounds in his Motion. His first claim of ineffective assistance of counsel is his counsel's failure to object to the criminal information listing a maximum term of forty years when it should have stated thirty years as the maximum sentence [ECF No. 1]. Ground two is a claim of ineffective assistance of counsel for failing to conduct a reasonable pretrial investigation of a jail phone conversation between Darden and another regarding the sale of an xbox. Ground three is a claim of ineffective assistance of counsel for failing to object at sentencing that Darden's convictions should have been merged into a single offense, so he should not have been assigned a $100 special assessment for each count. Ground four alleges prosecutorial misconduct and ineffective assistance of counsel. Darden claims the Government's closing argument resulted in prejudice, and counsel's failure to object violated his rights to a fair trial. Ground five states counsel was ineffective for failing to object to sentencing enhancements at the time of trial and for not requesting the sentencing enhancements be included in the jury instructions as required by Alleyne v. United States, 133 S.Ct. 2151 (2013). Darden's sixth ground is a claim for ineffective assistance of counsel for failure to object to evidence introduced pursuant to Federal Rule of Civil Procedure 404(b). The seventh ground alleges there was a constructive amendment of the indictment, because the Government introduced a.45 caliber firearm during trial and Darden was indicted for possessing a nine millimeter gun. Ground eight states counsel was ineffective because he did not object to the introduction of evidence regarding an xbox and did not introduce any evidence to support Darden's assertions regarding the xbox. Ground nine states counsel was ineffective for failing to investigate if Darden's prior conviction for burglary in Missouri was a qualifying prior conviction. Darden argues in ground ten he is not a career offender because all of his prior convictions occurred in the city or county on the same day. In ground eleven, Darden requests the holding in Descamps v. United States, 133 S.Ct. 2276 (2013), be applied to his prior convictions. Lastly, in ground twelve, Darden requests a copy of his sentencing transcript to properly attack his sentence [ECF No. 1]. The Court addresses each argument as follows.
1. Ground One: Failure to Object to Criminal Information
Darden alleges his trial counsel was ineffective for failing to object to an error in the Criminal Information. Darden alleges the information listed the maximum sentence as forty years but under 21 U.S.C. § 841(b)(1)(c), the maximum penalty is thirty years. The Government agrees the Criminal Information included an incorrect maximum penalty [ECF No. 16]. However, the Government claims Darden is unable to establish this resulted in prejudice.
To establish a claim for ineffective assistance of counsel, a defendant must show the counsel's performance was deficient and counsel's deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice requires the defendant to show he was deprived of a fair trial because of the deficiency. Id. Under the first prong, the measure of an attorney's performance is "reasonableness under prevailing professional norms." Id. at 688. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. To establish the second prong of prejudice, the defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A court need not address both prongs of the analysis if the defendant makes an insufficient showing on either prong. Id. at 697.
Even though the parties agree the Criminal Information included an incorrect maximum sentence, the Court does not need to decide if counsel's failure to object constitutes ineffective assistance of counsel because Darden is unable to establish the prejudice prong of Strickland. The presentencing report included the correct maximum sentencing of thirty years. CD ECF No. 146 at 1. Darden was sentenced to 200 months, well below the correct statutory maximum sentence. Correction of the Criminal Information upon an objection by Darden's attorney would not have reduced his sentence. See King v. U.S., 545 F.3d 844, 852 (8th Cir. 2010). The sentencing error in the Criminal Information did not affect the sentence imposed ...