United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Clarence White'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].
13, 2014, Petitioner was indicted for conspiracy to possess
with intent to distribute more than five kilograms of cocaine
in violation of 21 U.S.C. §§ 846 and 841(a)(1)
(“Count V”), conspiracy to possess a firearm in
furtherance of a drug-trafficking crime in violation of 18
U.S.C. § 924(o) (“Count VI”), and possession
of one or more firearms in furtherance of a drug-trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A)
(“Count VII”).On November 6, 2013, pursuant to a plea
agreement, Petitioner plead guilty to Counts V and VI in
exchange for the Government's dismissal of Count VII. CD
ECF No. 98. On March 13, 2014, Petitioner was sentenced to
120-months imprisonment and a five-year term of supervised
release. CD ECF No. 190. Petitioner filed the current motion
on March 19, 2015, asserting his conviction should be set
aside because his counsel was ineffective. ECF No. 1.
federal prisoner who seeks relief under 28 U.S.C. § 2255
on grounds that “the sentence was imposed in violation
of the Constitution or laws of the United States, . . . 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 four reasons his counsel was allegedly ineffective.
First, he argues his counsel was ineffective, because his
counsel failed to conduct an adequate investigation into an
entrapment defense. ECF No. 1. Second, Petitioner contends
his counsel acted deficiently by advising him to plead guilty
in spite of the existence of an allegedly viable entrapment
defense. Id. Third, Petitioner claims his
counsel's recommendation of the plea agreement
constitutes ineffective assistance, because it allowed
Respondent to avoid having to prove with specificity the
quantity of drugs attributable to Petitioner under 21 U.S.C.
§§ 841 and 846. Id. Finally, Petitioner
asserts his counsel's failure to highlight sentencing
disparities among his (allegedly more culpable)
co-conspirators constitutes ineffective assistance of
counsel. Id. Petitioner also seeks to have this
Court ban reverse stings. Id.
establish a claim for ineffective assistance of counsel,
Petitioner must show 1) counsel's performance was
deficient and 2) counsel's deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). 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. Prejudice
requires Petitioner to show he was deprived of a fair trial
because of the deficiency. Id. 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. A court need not address both prongs of the analysis if
the defendant makes an insufficient showing on either prong.
Id. at 697 (if it is easier, a court should
“dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice”).
second element of the Strickland test is slightly
modified for a defendant who has plead guilty. Such a
defendant must demonstrate there is a “reasonable
probability that, but for counsel's errors, he would not
have plead 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)). Furthermore, a guilty plea and
representations made by a defendant during 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,