United States District Court, Eastern District of Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on federal prisoner Larry Lee Henderson’s pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence (“Motion to Vacate”). The government filed a response in opposition. Movant did not file a traverse, and the time to do so has expired. Therefore, this matter is ready for decision. For the following reasons, movant’s Motion to Vacate will be denied.
On October 15, 2009, movant was charged in a four count indictment with counterfeiting securities. The indictment stated that in July and August 2009, movant used counterfeited and forged checks in connection with the purchase of vehicles from Chris Auffenberg Chevrolet, Auto Plaza Ford, and Behlmann Automotive.
Movant made his initial appearance on November 20, 2009, and attorney JoAnn Trog was appointed to represent movant. On December 10, 2009, movant’s counsel filed a motion to suppress evidence and statements. On December 16, 2009, United States Magistrate Judge Thomas C.
Mummert, III, held a hearing on movant’s motion to suppress evidence and statements. On December 30, 2009, Judge Mummert issued a memorandum and a report and recommendation, in which he recommended that movant’s motion to suppress statements be granted and motion to suppress evidence be denied. On January 25, 2010, the undersigned adopted the report and recommendation of the Magistrate Judge.
On February 4, 2010, the grand jury returned a superceding indictment. Three of the counts related to the purchase of vehicles from Chris Auffenberg Chevrolet, Auto Plaza Ford, and Behlmann Automotive with counterfeited checks in July and August 2009. A fourth count related to the purchase with a counterfeited check of a vehicle from Jim Trenary Chevrolet in August 2008. On February 26, 2010, movant’s attorney filed a motion to dismiss for failure to comply with Federal Rule of Criminal Procedure 12.4. Ms. Trog argued in her motion that the governement had failed to timely disclose the organizational victims with regard to the initial indictment and the superceding indictment. That same day movant’s attorney also filed movant’s waiver of pretrial motions relating to the constitutionality of evidence obtained by the government. Later that day, the government filed a request for leave to file its Rule 12.4 disclosures out of time.
On March 3, 2010, the grand jury returned a second superceding indictment with four counts of unlawful use of counterfeit securities in connection with the purchase of vehicles from Chris Auffenberg Chevrolet, Auto Plaza Ford, Behlmann Automotive, and Jim Trenary Chevrolet. On March 5, 2010, the parties appeared before Judge Mummert for arraignement on the second superceding indictment. Judge Mummert indicated that in light of the new indictment he would deny movant’s motion to dismiss and grant the government’s motion for leave to file its Rule 12.4 disclosures out of time.
On March 9, 2010, movant’s attorney, JoAnn Trog filed a “Motion for Determination of Conflict of Interest or Waiver Thereof.” In the motion, she stated that on March 6, 2010, she “received information that her partner, Hardy C. Menees, has previously represented Chris Auffenberg of Auffenberg Chevrolet in a real estate matter, tax matter and also represented a member of his family.” United States v. Henderson, 4:09-CR-658 CAS, Doc. 46 at 1. Ms. Trog also stated in her motion that Mr. Menees’s representation of Chris Auffenberg had concluded, and that she never had any dealings or participated in any manner in the representation. Id.
Judge Mummert held a hearing on the matter on March 19, 2010. At the hearing, Ms. Trog indicated that movant had agreed to waive the conflict, but that her partner, Mr. Menees, had not heard back from Mr. Auffenberg as to whether he would waive the conflict. Ms. Trog made an oral motion to withdraw as counsel, which was granted, and Judge Mummert appointed Rodney H. Holmes as movant’s counsel. Movant did not object to the appointment of Mr. Holmes as counsel.
In September 2010, the parties reached a plea agreement, under which movant agreed to plead guilty to two of the charges against him, Counts One and Two. Movant signed a written Plea Agreement, Guidelines Recommendations and Stipulations (“Plea Agreement”) on September 1, 2010. That same day, movant appeared with counsel before this Court and pleaded guilty as charged to Counts One and Two. The Court accepted movant’s guilty plea, the matter was set for sentencing, and a Presentence Investigation Report (“PSR”) was ordered.
It was determined in the PSR that movant’s base offense level was six pursuant to Section 2B1.1(a)(2) of the United States Sentencing Guidelines Manual. Ten levels were added pursuant to Section 2B1.1(b)(1)(F), as the loss was more than $120, 000.00 but less than $200, 000.00. Three levels were subtracted from the offense level pursuant to Section 3E1.1(a) and (b) for acceptance of responsibility for a total offense level of 13. The PSR calculated a criminal history category of VI. Based on a total offense level of 13 and a criminal history category of VI, the guideline imprisonment range was calculated to be 33 to 41 months.
On November 22, 2010, movant’s counsel filed objections to the PSR. He objected to the inclusion of a ten level increase for a loss of more than $120, 000.00. In his motion, movant argued that that the loss was more than $30, 000.00, which resulted in a 6 level increase, for a total offense level of 10, criminal history category of VI, which corresponds to a guideline range of 24-30 months.
On December 2, 2010, a sentencing hearing was held, at which time evidence was presented as to movant’s relevant conduct and whether the amount of loss was more than $120, 000.00. The Court overruled movant’s objection as to the amount of the loss, finding movant’s conduct in Counts 3 and 4 of the second superceding indictment was relevant conduct. After giving movant an opportunity to address the Court, the undersigned sentenced movant to a term of imprisonment of 41 months on Count One, and 41months on Counts Two, all such terms to be served concurrently, followed by three (3) years of supervised release. The Court also noted that the sentence “shall run consecutive to the sentence defendant is currently serving under Docket No. 4:04CR112 CEJ, pursuant to the provision of Section 5G.1.3.” United States v. Henderson, 4:09-CR-658 CAS, Doc. 102 at 2.
On December 10, 2010, movant filed a pro se notice of appeal and motion to appoint new counsel. This Court denied movant’s motion for appointment of new counsel, noting that the motion should be directed to the Eighth Circuit Court of Appeals. Movant’s appeal was submitted to the Eighth Circuit Court of Appeals on the record of the district court. On February 24, 2011, the Court of Appeals granted the government’s motion for dismissal, and the appeal was dismissed. Movant’s petition for rehearing by the panel was denied on April 15, 2011, and the Eighth Circuit issued its mandate on April 22, 2011. Movant did not file a petition for a writ of certiorari with the United States Supreme Court.
On March 19, 2012, movant filed his pro se Motion to Vacate. In his Motion to Vacate, movant asserts four (4) grounds for relief:
Ground One: “Counsel Holmes was ineffective due to conflict of interest.” Doc. 1 at 4. More specifically,
Counsel Rodney H. Holmes violated the movant’s 5th and 6th Amendment Right when the representation beginned [sic] under conflict of interest. Whereas, the matter of indemnification and other matters related to the movant prior to arrest and counsel is and was to be a necessary witness to direct evidence to the movant. All in violation of both Missouri Supreme Court Rules of Professional Conduct, 4 & 3.7 and ...