United States District Court, W.D. Missouri, Southern Division
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
KAYS, CHIEF JUDGE
case arises out of Movant Raymond Doyle Smotherman's
(“Movant” or “Smotherman”) conviction
and 300-month prison sentence for possession of a firearm in
furtherance of a drug trafficking offense and possession of
methamphetamine with the intent to distribute. Pending before
the Court is Movant's Motion Under § 2255 to Vacate,
Set Aside, or Correct a Sentence by a Person in Federal
Custody (Civ. Doc. 1). For the reasons set forth below, the
motion is DENIED without an evidentiary hearing and the Court
shall not issue a certificate of appealability.
January 22, 2013, Smotherman was charged by way of
superseding indictment with: possession of firearms by a
felon (Count I), possession with intent to distribute
methamphetamine (Count II), possession of firearms in
furtherance of a drug trafficking offense (Count III),
possession of a stolen firearm (Count IV), possession with
intent to distribute 50 or more grams of methamphetamine
(Count V), and two allegations of criminal forfeiture (Crim.
February 12, 2013, the Government filed a notice outlining
two previous felony narcotics convictions pursuant to 21
U.S.C. § 851(a) (“the Section 851
information”) (Crim. Doc. 21). The felonies at issue
were an April 10, 2000, conviction for conspiracy to
manufacture and distribute methamphetamine and an August 4,
1994, conviction for sale of a controlled substance. These
convictions, in conjunction with his charge for possession
with intent to distribute 50 or more grams of
methamphetamine, subjected Movant to the possibility of a
mandatory term of life imprisonment. 21 U.S.C. §
3, 2013, Smotherman appeared before United States Magistrate
Judge James C. England and pled guilty to Counts III and V,
and Forfeiture Allegations I and II, pursuant to a written,
binding plea agreement. Plea Agrmnt. (Crim. Doc. 54).
Paragraph 2 of the plea agreement is titled “Factual
Basis for Guilty Plea” and states in relevant part:
SA Kathleen Aug also determined that the defendant had four
prior felony convictions for the following: . . .
2. Sale of a Controlled Substance from the 37th Circuit Court
of Shannon County, State of Missouri, Case Number CR893-197F,
and a conviction date on or about August 4, 1994; . . .
4. Conspiracy to Manufacture and Distribute Methamphetamine
from the United State[s] District Court, Western District of
Missouri, Case Number 00-03008-02-CR-S-1, and a conviction
date on or about April 10, 2000.
Plea Agrmnt. ¶ 2. During the plea colloquy, Smotherman
conceded that the facts contained in Paragraph 2 of the plea
agreement were true. Plea Tr. at 8 (Crim. Doc. 55). The
agreement indicates that the Government ultimately sought a
sentencing enhancement for only one of the prior felony drug
convictions for which the Government filed a Section 851(a)
notice. Plea Agrmnt. ¶ 4. This had the effect
of reducing Smotherman's statutory minimum sentence from
life imprisonment to 20 years for Count V under 21 U.S.C.
25, 2013, United States District Judge Catherine D. Perry,
sitting by designation, accepted Smotherman's guilty
plea. This Court subsequently sentenced Smotherman to a total
of 300 months' imprisonment and a total of 10 years'
supervised release (Crim. Doc. 66).
before the Court is Smotherman's Motion Under § 2255
to Vacate, Set Aside, or Correct a Sentence by a Person in
Federal Custody (Civ. Doc. 1). In each of his two arguments
in support of this motion, Smotherman contends his counsel
succeed on a claim of ineffective assistance of counsel, a
movant must show that “(1) trial counsel's
performance was so deficient as to fall below an objective
standard of the customary skill and diligence displayed by a
reasonably competent attorney, and (2) trial counsel's
deficient performance prejudiced the defense.”
Armstrong v. Kemna, 534 F.3d 857, 863 (8th Cir.
2008) (citing Strickland v. Washington, 466 U.S.
668, 687-94 (1984)). Judicial review of trial counsel's
performance is highly deferential, “indulging a strong
presumption that counsel's conduct falls within the wide
range of reasonable professional judgment.”
Middleton v. Roper, 455 F.3d 838, 846 (8th Cir.
2006). Counsel's failure to advance a meritless argument
cannot constitute ineffective assistance of counsel.
Rodriguez v. United States, 17 F.3d 225, 226 (8th
Cir. 1994). In the context of guilty pleas, the second
“prejudice” requirement of the test for