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Pisciotta v. United States

United States District Court, W.D. Missouri, Western Division

September 12, 2016

VINCENT F. PISCIOTTA, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 4:10-cr-0174-02-DGK

          ORDER DENYING MOTION FOR POSTCONVICTION RELIEF

          GREG KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This 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.

         Background and Procedural History

         On June 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).

         On 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.

         On 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.

         Movant 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.

         Standard of Review

         In a 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. § 2255(a).

         Discussion

         In the four grounds of relief in his motion, Movant raises five claims of ineffective assistance of counsel.[1] 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.

         To 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).

         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). 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.

         I. Movant has failed to prove his attorney was constitutionally ineffective.

         A. Trial counsel was not ineffective for failing to ...


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