United States District Court, W.D. Missouri, Western Division
VINCENT F. PISCIOTTA, Movant,
UNITED STATES OF AMERICA, Respondent. Crim. No. 4:10-cr-0174-02-DGK
ORDER DENYING MOTION FOR POSTCONVICTION
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
case arises from Movant Vincent F. Pisciotta's
participation in a conspiracy to commit arson. Now before the
Court is Movant's “Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence By a Person in
Federal Custody” (Doc. 1). Because Movant's claims
are meritless, the Court DENIES the motion. The Court also
declines to issue a certificate of appealability.
and Procedural History
7, 2011, a federal grand jury returned a four-count
superseding indictment charging Movant and two others with:
conspiracy to commit arson, in violation of 18 U.S.C. §
371 and § 844(i) (Count One); arson, in violation of 18
U.S.C. § 844(i) (Count Two); mail fraud, in violation of
18 U.S.C. § 1341 (Count Three); and use of fire to
commit a federal felony offense, in violation of 18 U.S.C.
§ 844(h) (Count Four).
October 31, 2012, after a six-day trial, the jury found
Movant guilty on Counts One, Two, and Four, and acquitted him
on Count Three.
September 9, 2013, the Court sentenced Movant to 60
months' imprisonment on Count One; 120 months'
imprisonment on Count Two, to be served concurrently; and 120
months' imprisonment on Court Four, to be served
consecutively, for a total 240-month term of imprisonment.
The Court also ordered a three-year term of supervised
release and restitution of $1, 440, 219.73.
appealed, unsuccessfully. United States v. Anderson,
783 F.3d 727 (8th Cir. 2015), cert. denied sub nom.,
Pisciotta v. United States, 136 S.Ct. 199 (2015).
Movant acting pro se timely filed the pending §
2255 motion. The Court set an evidentiary hearing in this
matter and appointed counsel to represent Movant. The Court
held an evidentiary hearing at which Movant appeared and
testified via video-conferencing from FCI Bastrop.
proceeding brought under 28 U.S.C. § 2255, the district
court may “vacate, set aside or correct [a]
sentence” that “was imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C.
four grounds of relief in his motion, Movant raises five
claims of ineffective assistance of counsel. He asserts trial
counsel was ineffective for failing to: (1) raise an alibi
defense, (2) move for severance based on misjoinder, (3)
challenge the allegedly defective indictment, and (4) have
him to testify in his own defense. He contends sentencing and
appellate counsel was ineffective for (5) failing to make
various objections at sentencing, and then failing to
challenge the Court's decision to depart upward from
guidelines at sentencing. These claims are all without merit.
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)). Failure to satisfy either prong is
fatal, and the court need not reach the prejudice prong if
the defendant cannot show his attorney's performance was
deficient. See Pryor v. Norris, 103 F.3d 710, 713
(8th Cir. 1997).
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). Trial
counsel's “strategic choices made after thorough
investigation of law and facts relevant to plausible options
are virtually unchallengeable.” Strickland,
466 U.S. at 690. Strategic choices made in the shadow of a
lack of preparation or investigation, however, are not
protected by the same presumption. Armstrong, 534
F.3d at 864.
Movant has failed to prove his attorney was constitutionally
Trial counsel was not ineffective for failing to ...