United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
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.
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
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
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.
No. Evidentiary Hearing is Required
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.
Elkins Did Not Receive Ineffective Assistance of
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 ...