United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER DISTRICT JUDGE
matter comes before the Court on Brian T. Henderson's
(“Petitioner”) Motion under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody [ECF No. 1].
March 11, 2015, Petitioner was indicted for possession with
intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) and as a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). On September 8,
2015, Petitioner pled guilty to both counts in the
indictment. On January 7, 2016, Petitioner was sentenced to
84-months imprisonment, and a three-year term of supervised
release. Petitioner filed the current motion on October 21,
2016, asserting his conviction should be set aside because
his counsel was ineffective.
federal prisoner who seeks relief under 28 U.S.C. § 2255
on grounds “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 the sentence.” 28 U.S.C. § 2255(a). In
order to obtain relief under § 2255, the petitioner must
establish a constitutional or federal statutory violation
constituting “a fundamental defect which inherently
results in a complete miscarriage of justice.”
United States v. Gomez, 326 F.3d 971, 974 (8th Cir.
2003) (quoting United States v. Boone, 869 F.2d
1089, 1091 n.4 (8th Cir. 1989)).
brought under § 2255 may be limited by procedural
default. A petitioner “cannot raise a
non-constitutional or non-jurisdictional issue in a §
2255 motion if the issue could have been raised on direct
appeal but was not.” Anderson v. United
States, 25 F.3d 704, 706 (8th Cir. 1994). Claims,
including those concerning constitutional and jurisdictional
issues, unraised on direct appeal cannot subsequently be
raised in a ' 2255 motion unless the petitioner
establishes “(1) cause for default and actual prejudice
or (2) actual innocence.” United States v.
Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (citing
Bousley v. United States, 523 U.S. 614, 621-22
ineffective assistance of counsel claims may be raised for
the first time in a § 2255 motion even if they could
have been raised on direct appeal. Massaro v. United
States, 538 U.S. 500, 504 (2003). This exception is in
place to prevent petitioners from being forced “to
raise the issue before there has been an opportunity fully to
develop the factual predicate for the claim.”
Id. Additionally, a petitioner's attorney may
serve as counsel for both the trial and appellate case, and
it is unlikely that the attorney would raise a claim of his
own ineffective assistance on appeal. See United States
v. Rashad, 331 F.3d 908, 911 (D.C. Cir. 2003).
excuse procedural default, however, a petitioner, raising a
constitutional claim for the first time in a § 2255
proceeding, still must demonstrate cause and prejudice.
Anderson, 25 F.3d at 706. Ordinarily, issues that
were raised and decided on direct appeal cannot be
relitigated in a § 2255 motion. United States v.
Wiley, 245 F.3d 750, 752 (8th Cir. 2001). Exceptions to
this rule are recognized only upon production of convincing
new evidence of actual innocence, and are available only in
the extraordinary case. Id.
petitioner's claims are not procedurally barred, the
Court must hold an evidentiary hearing to consider the claims
“[u]nless the motion and files and records of the case
conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b); see also Shaw v.
United States, 24 F.3d 1040, 1043 (8th Cir. 1994). A
petitioner is entitled to an evidentiary hearing “when
the facts alleged, if true, would entitle [the petitioner] to
relief.” Payne v. United States, 78 F.3d 343,
347 (8th Cir. 1996) (citation omitted). However, a court may
dismiss a claim without a hearing “if the claim is
inadequate on its face or if the record affirmatively refutes
the factual assertions upon which it is based.”
Shaw, 24 F.3d at 1043.
asserts three reasons his counsel was allegedly ineffective.
First, he argues his counsel was ineffective because counsel
failed to investigate the case. Defendant contends
“Defendant stated that the court lack[ed] jurisdiction
due to Missouri in rem of property that Missouri has laws in
place that state or local law enforcement may transfer any
property seized by state or local agency to any federal
agency for forfeiture under federal law.” Second,
Defendant states his counsel was ineffective because of
counsel's failure to “know state law on seized
property that the local prosecuting attorney has ten days to
file petition of forfeiture.” Finally, Defendant
asserts counsel was ineffective because counsel failed to ask
the Court for an investigator. This is the entirety of
establish a claim for ineffective assistance of counsel, a
defendant must show the counsel's performance was
deficient and counsel's deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Prejudice requires the defendant to show he was
deprived of a fair trial because of the deficiency.
Id. Under the first prong, the measure of an
attorney's performance is “reasonableness under
prevailing professional norms.” Id. at 688.
“Judicial scrutiny of counsel's performance must be
highly deferential.” Id. at 689. To establish
the second prong of prejudice, the defendant must show
“there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. When a defendant has pled guilty, the defendant must
demonstrate there is a “reasonable probability that,
but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.”
Matthews v. United States, 114 F.3d 112, 114 (8th
Cir. 1997) (quoting Hill v. Lockhart, 474 U.S. 52,
59 (1985)). A court need not address both prongs of the
analysis if the defendant makes an insufficient showing on
either prong. Strickland, 466 U.S. at 697.
guilty plea and representations made by a defendant during
the plea-taking create a “strong presumption of verity
and pose a formidable barrier in any subsequent collateral
proceedings.” Nguyen v. United States, 114
F.3d 699, 703 (8th Cir. 1997). When a defendant admits he is
satisfied with his lawyer, there were no threats or promises
to induce him to plead, and he voluntarily admits his guilt,
he has a “heavy burden” to show his plea was
involuntary. Id. “Once a person has entered a
guilty plea, any subsequent presentation of conclusory
allegations unsupported by specifics is ...