United States District Court, E.D. Missouri, Eastern Division
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court upon the motions of Mark Edwin
Shores to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255 and for an evidentiary
hearing. The United States has filed a response,
and the issues are fully briefed.
October 5, 2011, a jury found Shores guilty of possession
with intent to distribute heroin on September 16, 2009 and on
September 9, 2010, in violation of 21 U.S.C. § 841(a)(1)
(Count One and Count Six); possession with intent to
distribute cocaine base, in violation of 21 U.S.C. §
841(a)(1) (Count Two); maintaining a drug premises, in
violation of 21 U.S.C. § 856(a)(2) (Count Three); being
a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g) (Count Five); and possessing a firearm in
furtherance of the drug trafficking crime charged in Count
Six, in violation of 18 U.S.C. § 924(c) (Count
Seven). He was sentenced to concurrent 240-month
terms of imprisonment for the drug offenses, a concurrent
262-month term of imprisonment for the felon in possession
offense, and a mandatory consecutive 60-month term
of imprisonment for possessing a firearm in furtherance of a
drug trafficking crime-a total of 322 months'
imprisonment. The judgment was affirmed on appeal.
United States v. Shores, 700 F.3d 366 (8th Cir.
2012), cert. denied, 133 S.Ct. 2780 (2013).
evidence supporting the convictions is detailed in the
opinion of the court of appeals. It will not be repeated
verbatim here, but will be referred to as necessary to
address the claims asserted in the motion to vacate.
instant motion, Shores asserts that he was denied effective
assistance of counsel at trial and on appeal. To prevail on
an ineffective assistance claim, a movant must show that his
attorney's performance fell below an objective standard
of reasonableness and that he was prejudiced thereby.
Strickland v. Washington, 466 U.S. 668, 688 (1984). With
respect to the first Strickland prong, there exists
a strong presumption that counsel's conduct falls within
the wide range of professionally reasonable assistance.
Id. at 689. In Strickland, the Court
described the standard for determining an ineffective
[A] court deciding an actual ineffectiveness claim 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. A convicted defendant making a claim
of ineffective assistance must identify the acts or omissions
of counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then
determine whether, in light of all the circumstances, the
identified acts or omissions were outside the wide range of
professionally competent assistance. In making that
determination, the court should keep in mind that
counsel's function, as elaborated in prevailing
professional norms, is to make the adversarial testing
process work in the particular case. At the same time, the
court should recognize that counsel is strongly presumed to
have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
Strickland, 466 U.S. at 690.
establish the "prejudice" prong, the movant must
show "that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Id. at 694. The
failure to show prejudice is dispositive, and a court need
not address the reasonableness of counsel's performance
in the absence of prejudice. United States v. Apfel,
97 F.3d 1074, 1076 (8th Cir. 1996).
first asserts that he was denied effective assistance of
counsel as a result of his attorney's failure to present
alibi evidence that would have shown he was not present at a
drug transaction that occurred on September 15, 2009. This
transaction was described in an affidavit submitted by
Detective Anthony Boettigheimer in support of a search
warrant application. According to the affidavit, on that
date, officers of the St. Louis Metropolitan Police
Department saw Shores engaging in a hand-to-hand transaction
in which he sold a quantity of heroin to a confidential
informant. In the affidavit, Boettigheimer also recited the
informant's observation of drugs and a firearm inside
Shores' house as well as police officers'
surveillance of activity consistent with drug trafficking
there. Boettigheimer further set forth facts demonstrating
the informant's reliability and describing the results of
the police investigation that corroborated the
informant's information. A magistrate judge reviewed the
application and affidavit and issued a warrant to search
Shores' home. The search was conducted on September 16,
attorney filed a motion to suppress evidence seized during
the search, and a hearing was held in which Boetigheimer was
the sole witness. Defense counsel also filed a motion for an
order directing the government to disclose the confidential
informant's identity. Both motions were denied. Evidence
seized pursuant to the search warrant was admitted at trial.
was not charged with any offense based on the September 15,
2009 transaction. During the trial, the government briefly
alluded to the transaction as follows:
Q [by prosecutor]: You had received information regarding
this defendant; ...