United States District Court, W.D. Missouri, Western Division
BILLY B. GARRISON, Movant,
UNITED STATES OF AMERICA, Respondent. Crim. No. 10-0033-01-CR-W-ODS
ORDER AND OPINION (1) DENYING MOVANT'S REQUEST FOR POSTCONVICTION RELIEF AND (2) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
ORTRIE D. SMITH, Senior District Judge.
Pending is Movant's request for postconviction relief. The Court denies the motion and also declines to issue a Certificate of Appealability.
Movant was charged in a Complaint filed in January 2010, then in an Indictment filed in February 2010. On April 7, 2010, Movant was charged in four counts of a five-count Superseding Indictment. Specifically, he was charged with (1) conspiracy to distribute more than 500 grams of methamphetamine, (2) conspiracy to commit money laundering, (3) possessing more than fifty grams of methamphetamine with intent to distribute, and (4) aiding and abetting the obtaining of a firearm through false or fictitious means. On November 10, 2011, Movant entered a Plea Agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, which permits a defendant and the Government to "agree that a specific sentence or sentencing range is the appropriate disposition of the case...." The parties agreed to the specific sentence of 20 years in prison to be followed by five years of supervised release, no fine, and a $300 mandatory special assessment. Paragraph 6(a) further explained that even though a specific sentence was agreed to and would be imposed if the agreement were accepted by the Court, "the Court is required to determine the defendant's applicable Sentencing Guidelines range at the time of sentencing." The Plea Agreement also contained (in paragraph 15) a waiver of Movant's "right to appeal any sentence, directly or collaterally, on any ground except claims of (1) ineffective assistance of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence." The Plea Agreement then defined an "illegal sentence" as a sentence greater than the one agreed to by the parties. The Court accepted Movant's guilty plea, approved the Plea Agreement, and directed the Probation Office to prepare a Presentence Investigation Report ("PSR").
The PSR determined Movant's Base Offense Level for the money laundering count was based on section 2S1.1. (a)(1) of the Sentencing Guidelines, which incorporated sections 2D1.1(c)(2) and 2D1.1(b)(1), resulting in a Base Offense Level of 38. To this, two levels were added pursuant to section 2S1.1(b)(2)(B) because of Movant's conviction under 18 U.S.C. § 1956; three levels were then subtracted for Movant's acceptance of responsibility, resulting in an Adjusted Offense Level of 37. Plaintiff had a total of fifteen criminal history points, placing him in Criminal History Category VI. The Sentencing Guidelines would have recommended a sentencing range of 360 months to life.
At the sentencing hearing, the Court sustained some of Movant's objections, resulting in the subtraction of three criminal history points and changing Movant's Criminal History Category to V. Sentencing Tr. at 6-7. The Court also honored the parties' agreement that the Base Offense Level would be 32 before application of adjustments for acceptance of responsibility. Sentencing Tr. at 19-20. The Court thus calculated Movant's Adjusted Offense Level to be 29 and his Criminal History Category to be V, resulting in a sentencing range to be 140 to 175 months.
But, as the Court and the parties were aware, these calculations were supplanted by the Movant's classification as a career offender based on section 4B1.1(a) of the Guidelines. With respect to the requirement that Movant have at least two prior felony convictions of either a crime of violence or a controlled substance offense, the PSR found Movant actually had three predicate convictions. However, the Court determined that one of the predicate convictions (for possession of a pipe bomb) did not qualify as a violent felony. Sentencing Tr. at 10-11. The Court overruled Movant's objection to another conviction's status as a violent felony. This objection involved Movant's conviction for felony resisting arrest. Sentencing Tr. at 18-19. The Court thus found Movant had two predicate offenses and met the other requirements to be a career offender, making Movant's Adjusted Offense Level 34 and his Criminal History Category VI, resulting in a recommended sentencing range of 262 to 327 months. The Court sentenced Movant to twenty years in prison to be followed by five years of supervised release and imposed a special assessment of $300.
Movant appealed; his attorney filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Movant filed a pro se brief. The Court of Appeals granted counsel's motion to withdraw and affirmed, finding no nonfrivolous issues that were not barred by Movant's waiver of his right to appeal. United States v. Garrison, 517 Fed.Appx. 528 (8th Cir. July 15, 2013), cert. denied, 134 S.Ct. 1781 (2014).
Movant's first argument contends his attorney provided ineffective assistance in violation of the Sixth Amendment. A claim of ineffective assistance of counsel is governed by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). "This standard requires [the applicant] to show that his >trial counsel's performance was so deficient as to fall below an objective standard of reasonable competence, and that the deficient performance prejudiced his defense.'" Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir. 1995), cert. denied, 517 U.S. 1214 (1996) (quoting Lawrence v. Armontrout, 961 F.2d 113, 115 (8th Cir. 1992)). This analysis contains two components: a performance prong and a prejudice prong.
Under the performance prong, the court must apply an objective standard and "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance, " Strickland, 466 U.S. at 690, while at the same time refraining from engaging in hindsight or second-guessing of trial counsel's strategic decisions. Id. at 689. Assuming the performance was deficient, the prejudice prong "requires proof that there is a reasonable probability that, but for a counsel's unprofessional errors, the result of the proceeding would have been different.'" Lawrence, 961 F.2d at 115 (quoting Strickland, 466 U.S. at 694).
Id. Failure to satisfy both prongs is fatal to the claim. Pryor v. Norris, 103 F.3d 710, 713 (8th Cir. 1997) (no need to "reach the performance prong if we determine that the defendant suffered no prejudice from the alleged ineffectiveness"); see also DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000).
Movant contends counsel was ineffective for failing to insist that the Court obtain a PSR before accepting his plea. The Court holds that even if counsel's failure to insist on this step violated ...