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Shores v. United States

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

May 16, 2017

MARK EDWIN SHORES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          CAROL E. JACKSON, UNITED STATES DISTRICT JUDGE

         This 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.[1] The United States has filed a response, and the issues are fully briefed.

         I. Background

         On 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).[2] 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[3], 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.[4] The judgment was affirmed on appeal. United States v. Shores, 700 F.3d 366 (8th Cir. 2012), cert. denied, 133 S.Ct. 2780 (2013).

         The 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.

         II. Discussion

         In the 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 assistance claim:

[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 judgment.

Strickland, 466 U.S. at 690.

         To 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).

         Ground One

         (A) Alibi evidence

         Shores 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, 2009.

         Shores' 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.

         Shores 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; ...

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