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Elkins v. United States

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

April 9, 2018

JERRY ELKINS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE

         Jerry Elkins seeks to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Elkins was convicted by a jury of racketeering conspiracy and one count of violent crime in aid of racketeering - conspiracy to commit murder. No. 4:11CR246 CDP. He was acquitted of one count of violent crime in aid of racketeering - conspiracy to commit murder. Elkins was sentenced to 210 months imprisonment on each count, with all terms to run concurrently. Elkins appealed, and the Eighth Circuit Court of Appeals affirmed his conviction and sentence. United States v. Henley, 766 F.3d 893, 908 (8th Cir. 2014). Elkins petitioned the United States Supreme Court for certiorari, which was denied on May 4, 2015.

         Elkins then filed this § 2255 motion pro se, raising the following claims of ineffective assistance of counsel:

1) Counsel failed to challenge his convictions for multiplicity at sentencing;
2) Counsel failed to object to his being shackled during trial;
3) Counsel failed to object to the admission of evidence;
4) Counsel failed to call a defense witness; and
5) Counsel failed to raise the issue of the sealing of the wiretaps.

         Although not alleged as separate grounds for relief, Elkins also complains that counsel told him not to testify, was ineffective due to health issues, and had an unidentified “conflict of interest.” Elkins's ineffective assistance of counsel claims fail because he was represented by an experienced trial attorney who presented a vigorous defense, and the claims of ineffective assistance of counsel are conclusively refuted by the trial record. The evidence against him was very strong, as set forth in great detail in the appellate opinion affirming his conviction and sentence. I will deny Elkins's motion without an evidentiary hearing for the reasons that follow.

         Discussion

         A. No. Evidentiary Hearing is Required

         The records before me conclusively demonstrate that Elkins has no right to relief. I will not hold an evidentiary hearing on this matter. “A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless the motion and the files and records of the case conclusively show that he is entitled to no relief.” Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation marks omitted). “No hearing is required, however, where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.” Id. (internal quotation marks and citations omitted). The record here conclusively refutes the claims, so I will not hold an evidentiary hearing.

         B. Elkins Did Not Receive Ineffective Assistance of Counsel

         Elkins brings claims of ineffective assistance of trial counsel. The Sixth Amendment establishes the right of the criminally accused to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To state a claim for ineffective assistance of counsel, Elkins must prove two elements of the claim. First, he “must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. at 687. In considering whether this showing has been accomplished, “judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689. The courts seek to “eliminate the distorting effects of hindsight” by examining counsel's performance from counsel's perspective at the time of the alleged error. Id. Second, Elkins “must show that the deficient performance prejudiced the defense.” Id. at 687. This requires him to demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding ...


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