United States District Court, W.D. Missouri, Western Division
CHEO D. MILES Movant,
UNITED STATES OF AMERICA, Respondent. Crim. No. 09-00188-08-CR-W-FJG
FERNANDO J. GAITAN, JR. United States District Judge.
pending before the Court is movant's motion pursuant to
28 U.S.C. § 2255 to Vacate, Set Aside or Correct
Sentence (Doc. # 1).
August 20, 2009, a superseding indictment was returned in the
Western District of Missouri charging Miles with conspiracy
to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. 841(a)(1), (b)(1)(A) and 846. On February 14,
2011, Miles proceeded to a jury trial and was found guilty.
On February 17, 2011, defense counsel Chris Angles filed a
motion for a judgement of acquittal based on the single count
in which Miles was charged. Following trial, Miles requested
new counsel and his appointed counsel moved to withdraw. The
Court granted Miles request and Susan Hunt was appointed as
counsel. Hunt filed objections to the PSR drug calculations,
challenging the factual elements of the findings, contesting
the two-level enhancement for possession of a dangerous
weapon and seeking minimal participant reduction under
§3B1.2(b). On October 6, 2011, Miles appeared for
sentencing. Hunt again objected to the drug quantity found by
the jury verdict and requested that the Court lower the
quantity, notwithstanding the jury verdict. The Court denied
that objection, but did sustain the objection to the
two-level enhancement for a dangerous weapon and granted a
two-level reduction for minimal participation. This resulted
in a sentencing range of 140 to 175 months, but this was
overridden by the statutory mandatory minimum of 240 months.
Miles filed a direct appeal arguing that the district court
failed to give a lesser included instruction for distribution
of less than five kilograms of cocaine. The Eighth Circuit
rejected this argument and affirmed his conviction and
sentence. Miles has now filed the instant motion pursuant to
28 U.S.C. § 2255 asserting three claims of ineffective
assistance of counsel: 1) counsel was ineffective for failing
to request a lesser included offense instruction; 2) counsel
was ineffective for failing to move for a judgment of
acquittal and 3) counsel was ineffective for failing to
object to the drug quantity determination by the district
U.S.C. § 2255 provides, in part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
district court must hold an evidentiary hearing A[u]nless 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. ''Accordingly, a claim may be
dismissed without an evidentiary hearing if the claim is
inadequate on its face or if the record affirmatively refutes
the factual assertions upon which it is based.''
Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir.
1994) (citing Larson v. United States, 905 F.2d 218,
220-21 (8th Cir. 1990), cert. denied, 507 U.S. 919,
113 S.Ct. 1278, 122 L.Ed.2d 672 (1993)).
analysis of the ineffectiveness claims is governed by
Strickland v. Washington, 466 U.S. 668, 689, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to succeed on an
ineffectiveness claim, Miles must show “both deficient
performance by counsel and prejudice.” Id. at
687-88. In Johnson v. U.S., 860 F.Supp.2d 663
(N.D.Iowa 2012), the Court stated:
To establish deficient performance, a person challenging a
conviction must show that “counsel's representation
fell below an objective standard of reasonableness.”
[Strickland], 466 U.S. at 688, 104 S.Ct. 2052. . . .
The challenger's burden is to show “that counsel
made errors so serious that counsel was not functioning as
the ‘counsel' guaranteed the defendant by the Sixth
Amendment.” Id., at 687, 104 S.Ct. 2052.
Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct.
770, 787, 178 L.Ed.2d 624 (2011); Premo v. Moore,
562 U.S. 115, 121-122, 131 S.Ct. 733, 739, 178 L.Ed.2d 649
(2011) (quoting Richter). Also, the court “
‘must “judge the reasonableness of counsel's
challenged conduct on the facts of the particular case,
viewed as of the time of counsel's conduct.” '
” King [v. United States, 595 F.3d 844, ]
852-53 (quoting Ruff v. Armontrout, 77 F.3d 265, 268
(8th Cir.1996), in turn quoting Strickland, 466 U.S.
at 690, 104 S.Ct. 2052). There are two substantial
impediments to making the required showing of deficient
performance. First, “ ‘[s]trategic choices made
after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.' ”
United States v. Rice, 449 F.3d 887, 897 (8th
Cir.2006) (quoting Strickland, 466 U.S. at 690, 104
S.Ct. 2052). Second, “[t]here is a ‘strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.' ”
Id. (quoting Strickland, 466 U.S. at 689,
104 S.Ct. 2052); Davis v. Norris, 423 F.3d 868, 877
(8th Cir.2005) (“To satisfy this prong [the movant]
must overcome the strong presumption that his counsel's
conduct fell within the wide range of reasonable professional
Id. at 741. In United States v. Orr, 636
F.3d 944 (8th Cir.) cert.
denied, 132 S.Ct. 758 (2011), the Court stated,
“strategic choices made after a thorough investigation
of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after a less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the
limitations on investigation.” Id. at 952
(quoting Strickland, 466 U.S. at 690-91, 104 S.Ct.
2052). However, as noted in Armstrong v. Kemna, 534
F.3d 857 (8th Cir. 2008), “[o]n the other
hand, strategic choices resulting from lack of diligence in
preparation and investigation [are] not protected by the
presumption in favor of counsel.” Id. at
864-65 (internal citations and quotations omitted).
Ground 1 - Failing to Request a Lesser Included Offense
argues that Alejandro Corredor testified that he accepted
delivery of one kilogram of cocaine and payment in the sum of
$19, 000 as well as a payment in the amount of $17, 000.
Miles argues that Corredor testified that in 2008, a kilogram
of cocaine sold for between $22, 000 and $24, 000. Thus,
adding the two payments together would only equal one
kilogram of cocaine. Miles argues that if his counsel had
requested that the jury be instructed on the lesser included
offense of conspiracy to distribute less than five kilograms
of cocaine, then the outcome of his trial would have been
Government argues that to demonstrate prejudice, Miles must
show a reasonable probability that the district court would
have given the instruction and that the jury would have
acquitted him of the greater offense and convicted him of the
lesser offense. The Government argues that the district court
found that there was ample evidence to support the jury's
verdict that Miles was responsible for distribution of five
kilograms or more of cocaine.
THE COURT: Well, I'm going to overrule the objection.
First of all, I have a great deal of faith in juries, and I
believe that they were properly instructed. And to find him
guilty, they had to find that he was involved voluntarily in
a conspiracy that involved more than five kilograms. And at a
minimum we've got rock solid evidence, I believe, that
you've got at least four kilos, giving every benefit of
the doubt to Mr. Miles, that there are a minimum of four
occasions. Now, maybe one of those four involves the two
telephone calls, so I've got to be careful not to double
count. But he's not just responsible for what he, in
fact, himself can be shown to have given under these facts;
and given that amount of involvement, I have no doubt that he
was fully aware that there was substantially more than four
kilograms that was involved in this conspiracy.
And so I am, I do find that the jury's verdict is well
supported by the evidence, and so I will go with that. And so
I will overrule it.
(Doc. # 684, Oct. 6, 2011 Sentencing Transcript, p. 9). The
Government argues that in light of the jury's verdict,
Miles cannot demonstrate a reasonable probability that he
would have been acquitted of the greater charge.
Additionally, the Government argues that the record
demonstrates that the Court would not have given the
instruction, even if counsel had requested it.
U.S. v. Ziesman, 409 F.3d 941 (8th Cir.)
cert. denied, 546 U.S. 990, 126 S.Ct. 579,
163 L.Ed.2d 483 (2005) the Court stated:
[i]n the Eighth Circuit, a defendant is entitled to a
lesser-included offense instruction when: (1) a proper
request is made; (2) the elements of the lesser offense are
identical to part of the elements of the greater offense; (3)
there is some evidence which would justify conviction of a
lesser offense; (4) the proof on the element or elements
differentiating the two crimes is sufficiently in dispute so
that the jury may consistently find the defendant innocent of
the greater and guilty of the lesser included offense; and
(5) there is mutuality, i.e., a charge may be demanded by
either the prosecution or defense.
Id. at 949.
case, Corredor testified that he knew Miles through Adrian
Dunn. Corredor testified that Adrian Dunn sold approximately
eight kilos a month for him and that Miles was a childhood
friend of Dunn's who was always with Dunn and lived in a
house which Dunn owned.
Q. And how do you know Cheo ...