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Michael v. United States

United States District Court, E.D. Missouri, Eastern Division

November 21, 2016

THEODORE MICHAEL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner's motion to Vacate, Set Aside or Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255. The United States of America has responded to the motion. Movant has not filed any Reply to Response to Motion to Vacate, Set Aside or Correct Sentence.

         Facts and Background[1]

         On October 13, 2011 Petitioner, along with 11 others, was charged in a superseding indictment. He was charged with conspiracy to distribute and possess with intent to distribute cocaine, cocaine base and marijuana, in violation of Title 21, United States Code, Section 846. Subsequent to indictment, Petitioner filed a waiver of pretrial motions. On May 10, 2012, he appeared before United States Magistrate Judge David Noce and waived his right to file motions.

         On July 10, 2012, Petitioner appeared before this Court and pleaded guilty to a lesser included offense in Count I. Under oath he denied any type of mental illness and denied the consumption any alcohol or drugs in the preceding 36-hour period. He indicated to the court that he had a college degree in business management. As a consequence of this colloquy he was determined to be competent to proceed.

         Specific inquiry was made as to whether Petitioner was satisfied with his attorney's advice and performance whereupon he stated he was fully satisfied with the work his attorney had done for him and that he had no complaint against his attorney in any way. After reviewing his trial rights with him, as well as the terms of the plea agreement, the United States informed for the record what facts it would prove in the event the case proceeded to trial. The facts were also included in the written plea agreement between the parties. At the conclusion of the recitation of facts, Petitioner was asked, whether all those things as stated were true and correct to which he responded in the affirmative. He was specifically asked whether he agreed and admitted that the offense involved in excess of 50 kilograms of marijuana and he again responded in the affirmative and without equivocation.

         The record also establishes that at the time of his plea, Petitioner had reviewed and signed the guilty plea agreement. The guilty plea agreement clearly set forth the joint recommendation of the parties that the base offense level was 20 (representing more than 40, but less than 60 kilograms of marijuana). Petitioner Michael had also had the benefit of a “pre-plea” Presentence Investigation Report. The pre plea PSR concluded that the amount of marijuana for which Michael was responsible was more than 40 kilograms but less than 60 kilograms.

         Michael was sentenced to a term of 37 months imprisonment on October 11, 2012. No appeal was taken from the conviction or sentence.

         STANDARD FOR RELIEF UNDER 28 U.S.C. §2255

         In order to state a cognizable claim of ineffective assistance of counsel, Petitioner must prove two elements: (1) that his attorney's performance was constitutionally deficient, and (2) that the deficient performance prejudiced his defense. Strickland v. Williams, 466 U.S. 668, 687 (1984). Under this framework, the Petitioner bears the “heavy burden” of proving both constitutional deficiency and prejudice. Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002); Patterson v. United States, 133 F.3d 645, 647 (8th Cir. 1998); United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996); see also Padilla v. Kentucky, 559 U.S. 356, 371 (2010) (noting that “[s]urmounting Strickland's high bar is never an easy task”).

         In order to meet this burden under the first prong of the Strickland test, Petitioner must not only prove that his counsel made errors, but that those errors were “so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at 687. Far from guaranteeing exceptional performance of counsel, the Sixth Amendment guarantees only “reasonably effective assistance” of counsel. Id. at 688. Under this standard, counsel is entitled to a “strong presumption” that his conduct falls within the wide range of professionally reasonable assistance. Nguyen v. United States, 114 F.3d 699, 703-03 (8th Cir. 1997) (quoting Strickland, 466 U.S. at 689.

         Even if a Movant succeeds in demonstrating that his counsel made errors of constitutional proportion, he still cannot prevail unless he proves that in the absence of those errors, the outcome of the proceedings would have been different. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffective assistance claim on the ground of lack of sufficient prejudice . . . that course should be followed.”).

         DISCUSSION

         Right to ...


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