United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY, District Judge.
Before the Court is Eric Scott McCauley's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, [Doc. 1]. For the reasons set forth below, the Motion is denied.
On April 3, 2009, a federal grand jury in the Western District of Missouri returned a fifth superseding indictment in Case No. 07-cr-04009-01-NKL, charging McCauley and two codefendants with a variety of narcotics and money laundering offenses. McCauley was charged with conspiracy to distribute and possess with intent to distribute 1, 000 kilograms of marijuana, in violation of 21 U.S.C. § 846 (Count One); possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (Counts Two and Twenty-Nine); monetary transaction in criminally derived property, in violation of 18 U.S.C. § 1957 (Counts Three through Five); money laundering, in violation of 18 U.S.C. § 1956(a) (Counts Seven through Twenty-Seven); conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Twenty-Eight); and distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count Thirty). [Crim. Doc. 130].
On October 30, 2009, J.R. Hobbs was appointed to represent McCauley. [Crim Doc. 183]. Both of McCauley's co-defendants pleaded guilty, and on March 14, 2011, McCauley alone proceeded to trial. After two days of testimony and evidence, the case was submitted to the jury on March 16, 2011. McCauley was found guilty on all counts, with the exception of Count One, for which he was found guilty of a lesser-included charge of conspiracy to distribute over 100 kilograms of marijuana rather than the more than 1, 000 kilograms of marijuana charged. [Crim. Doc. 277].
McCauley's presentence investigation report (PSR) was completed by the United States Probation Office. The PSR calculated a total offense level of 43 with a criminal history category of III, which resulted in a Guidelines range of life imprisonment, or the statutory maximum of 570 years. [Crim. Doc. 316, ¶¶ 119-20]. Through his attorney, McCauley objected to the base offense level of 34, to an enhancement under § 3B1.1(a) for his leadership role in the offense, to the PSR's failure to recommend a reduction for acceptance of responsibility, and to the criminal history category. [Crim. Doc. 316].
At sentencing on January 19, 2012, the Court overruled McCauley's objections except as to the drug quantities attributable to him. The Court found a base offense level of 32 (two levels below the 34 recommended by the PSR) based on a finding by a preponderance of the evidence that McCauley was responsible for more than 1, 000 kilograms but less than 3, 000 kilograms of marijuana. The total offense level was a 41 with a criminal history category of III, which placed McCauley's Guidelines range at 360 months to life imprisonment. After hearing argument by both sides, the Court sentenced McCauley to a total of 276 months' imprisonment, comprised of 276 months on each of Counts One and Two, 120 months on each of Counts Three, Four and Five, 240 months on each of Counts Seven through Twenty-Eight, and 60 months on Counts Twenty-Nine and Thirty, all to run concurrently. The court imposed an additional 60-month sentence on Count Thirty, to run consecutively to Count Thirty only, for a total of 120 months on that count. [Crim. Doc. 332]; see also [Crim. Doc. 336] and [Crim. Doc. 347].
The Court's written judgment was imposed on January 19, 2012, and was entered on January 24, 2012. [Crim. Doc. 332]. After the Eighth Circuit upheld McCauley's judgment and sentence, McCauley filed this Motion pursuant to 28 U.S.C. § 2255, alleging three grounds of ineffective assistance of counsel and two grounds based on violations of the Fifth and Sixth Amendments to the United States Constitution. The Government concedes that the Motion was timely filed.
A. Evidentiary Hearing
McCauley requests an evidentiary hearing "to determine whether the arguments advanced [by him] warrant relief." [Doc. 1, p. 7]. An evidentiary hearing on a 28 U.S.C. § 2255 motion is necessary unless the motion, files, and records of the case conclusively show that the movant is not entitled to relief. Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008). A claim under § 2255 may be summarily dismissed without an evidentiary hearing if it is insufficient on its face or the record affirmatively refutes the factual allegations contained in the motion. Id. Accordingly, an evidentiary hearing is not required if the allegations in the motion "are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Engelen v. United States, 68 F.3d 238, 240-41 (8th Cir. 1995). The Court has reviewed the motion, files, and record and concludes that all of McCauley's claims can be fully and fairly evaluated without an evidentiary hearing.
B. Ineffective Assistance of Counsel
Grounds One, Three, and Four of McCauley's Motion argue that his attorney, Mr. Hobbs, failed to provide effective assistance of counsel when he (1) failed to make a full inquiry into the prejudicial impact of a prospective juror's comments about his personal knowledge of the case, (2) failed to object to an improper grouping of the counts and to the misapplication of drugrelated enhancements to money laundering guidelines, and (3) failed to object to an enhancement of his sentence pursuant to 18 U.S.C. § 3147.
To succeed on a claim of ineffective assistance, a movant must prove both: (1) that defense counsel's representation was deficient; and (2) that the deficient performance prejudiced the movant's case. Strickland v. Washington, 466 U.S. 668, 687 (1984); U.S. v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Failure to prove "either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700. To establish deficient performance, the movant must show that "the lawyer's performance was outside the range of professionally competent assistance." Cox v. Norris, 133 F.3d 565, 573 (8th Cir. 1997). On this issue, "[j]udicial scrutiny of counsel's performance must be highly deferential" and the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. To establish prejudice, the movant "must show that, but for counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different." Cox, 133 F.3d at 573.
1. Failure to Inquire Into Impact of Prospective Juror's Comments
During jury selection, a member of the venire, Mr. McCollum, reported to the Court (outside of the presence of other jurors) that he was acquainted with the people who lived in McCauley's neighborhood and that those acquaintances had spoken with Mr. McCollum about police activity at McCauley's residence. Later, another prospective juror, Ms. Boone, reported to the Court that during a lunch break, Mr. McCollum shared this information with her and two other prospective jurors, Ms. Robb and Ms. Otte. Ms. Otte was ultimately selected as a juror.
McCauley argues that Mr. Hobbs only engaged in "the most minimal questioning of... Otte." [Doc. 1, p. 4]. However, the transcript reveals that the Court and Mr. Hobbs repeatedly asked Ms. Otte about whether the information about police activity at McCauley's house would affect her ability to remain impartial, and Ms. Otte repeatedly denied bias:
THE COURT: I appreciate you bringing it to our attention. I guess one of the ...