United States District Court, W.D. Missouri, Western Division
CARLTON P. STROTHER, Movant,
UNITED STATES OF AMERICA Respondent. Crim. No. 06-00112-01-CR-W-ODS
ORDER AND OPINION GRANTING MOVANT’S MOTIONS TO EXPAND THE RECORD AND DENYING MOVANT’S MOTIONS FOR POSTCONVICTION RELIEF
D. SMITH, SENIOR JUDGE
Pending are Carlton P. Strother’s (“Movant”) Motions to Expand the Record and Motions for Postconviction Relief pursuant to 28 U.S.C. § 2255 alleging ineffective assistance of counsel. The Motions to Expand are granted, but the Motions for Postconviction Relief pursuant to § 2255 are denied.
Movant was sentenced to 234 months’ imprisonment after a jury convicted him of conspiracy to commit aggravated identity theft, conspiracy to commit identity theft, aggravated identity theft, and access device fraud. The Eighth Circuit affirmed Movant’s conviction and sentence. See United States v. Jenkins-Watts, 574 F.3d 950, 959-62 (8th Cir. 2009). On October 5, 2010, Movant filed his initial motion pursuant to 28 U.S.C. § 2255. This Court held an evidentiary hearing on two of the claims: (1) whether Movant’s counsel had properly conveyed a plea offer to him, and (2) whether Movant had been sentenced above the 15-year statutory maximum for certain counts for which he had been convicted. In May 2012, the Court entered judgment reflecting that all but one of Movant’s claims were denied. The Court granted relief on one ground and resentenced Movant to correct irregularities in his initial sentence. Strother v. United States, No. 10-0976-CV-W-ODS-P. Even though the sentences on some of the counts were changed, the total amount of imprisonment for Movant remained 234 months. Then Movant appealed, raising issues regarding (1) the communication of a plea offer and (2) whether this Court was vindictive in its resentencing of Movant. The Eighth Circuit affirmed this Court’s judgment on both issues. United States v. Strother, 509 Fed.Appx. 571 (8th Cir. 2013). Movant has now filed § 2255 motions relating to events during the May 2012 resentencing. The Court will treat the various filings as a single motion for post-conviction relief.
B. LEGAL STANDARD
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). 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, while at the same time refraining from engaging in hindsight or second-guessing of trial counsel’s strategic decisions. 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.
Id. (internal citations omitted). Failure to satisfy both prongs is fatal to the claim. Pryor v. Norris, 103 F.3d 710, 713 (8th Cir. 1997).
Additional considerations apply when the claim is that appellate counsel was ineffective.
“When appellate counsel competently asserts some claims on a defendant’s behalf, it is difficult to sustain a[n] ineffective assistance claim based on allegations that counsel was deficient for failing to assert some other claims. Because one of appellate counsel’s important duties is to focus on those arguments that are most likely to success, counsel will not be held to be ineffective for failure to raise every conceivable issue.”
Winters v. United States, 716 F.3d 1098, 1106 (8th Cir. 2013) (quoting Link v. Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006)). Accordingly, a court’s review “is particularly deferential when reviewing a claim that appellate counsel failed to raise an additional issue on direct appeal.” Charboneau v. United States, 702 F.3d 1132, 1136 (8th Cir. 2013).
Finally, the Court is not required to grant him an evidentiary hearing on his motion if “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). The Court finds this to be the case, and an evidentiary hearing is not required.
1. Ground One