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White v. United States

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

October 6, 2017

CLARENCE WHITE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.

         This 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].

         I. BACKGROUND

         On June 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”).[1]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.

         II. STANDARD

         A 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)).

         Claims 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 (1998)).

         However, 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).

         To 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.

         If the 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.

         III. DISCUSSION

         Petitioner 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.

         To 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”).

         The 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, ...


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