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Henley v. United States

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

April 18, 2018

DOMENIC HENLEY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         Dominic Henley seeks to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Henley 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 - murder and one count of discharge of a firearm in furtherance of a violent crime. Henley was sentenced to an aggregate term of 204 months imprisonment. Henley 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). Henley petitioned the United States Supreme Court for certiorari, which was denied on May 4, 2015.

         Henley then filed this § 2255 motion, alleging that his retained counsel rendered ineffective assistance of counsel by failing to adequately advise him of counsel's conflict of interest such that Henley's waiver of conflict-free representation was not knowing and voluntary.

         Henley's ineffective assistance of counsel claim fails because he knowingly and voluntarily waived any potential conflict of interest counsel may have had in representing him. Henley repeatedly insisted his retained counsel represent him, despite being fully apprised by counsel and the Court of the potential risks posed by counsel's potential conflict of interest. The Court granted Henley's request to be represented by the counsel of his choice, and he cannot be heard to complain about that decision now. Moreover, counsel mounted a vigorous defense, securing an acquittal for Henley on two charges, one of which carried a mandatory life sentence. As such, Henley's 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 Henley's motion without an evidentiary hearing for the reasons that follow.

         Relevant Background Facts

         The relevant background facts relating to Henley's claim are not disputed. After he was arrested, Henley retained attorney Donnell Smith to represent him. Smith represented Henley throughout the trial and appeal of the underlying criminal case. On February 29, 2012, the Assistant United States Attorney filed an ex parte motion for inquiry into a potential conflict of interest. [Doc. # 571 in No. 4:11CR246 CDP]. The motion stated that Smith had a possible familial relationship with a member of the rival motorcycle gang Outcast, whose members Henley was accused of conspiring to kill on January 29, 2011. The motion was referred to United States Magistrate Judge Frederick R. Buckles.

         Judge Buckles immediately held a hearing on the motion on March 2, 2012. [Doc. # 577 in No. 4:11CR246 CDP]. At the hearing, Judge Buckles explained that an informant contacted the FBI and told the FBI agent that Smith was the brother of the president of the Outcast Motorcycle Club, whose members Henley allegedly conspired to kill. [Doc. # 16-1]. Judge Buckles stated that this created “a potential conflict of interest if Mr. Smith is representing Mr. Henley, who is accused of attempted murder of associates and perhaps even Mr. Smith's brother himself.” [Id. at 3]. Judge Buckles questioned Smith about his brother. Smith reported that he had a brother who rode motorcycles and his brother's girlfriend was his secretary. Smith's secretary confirmed that Smith's brother was indeed a member of Outcast and that his brother's motorcycle nickname was “St. Louis Red.” [Id. at 4-5]. After Smith admitted that he was on speaking terms with his brother, Judge Buckles told Smith that “it's imperative that you let Mr. Henley know this.” [Id. at 5].

         Judge Buckles ordered that Henley be brought in for the hearing so that Smith could discuss the issue with him. Judge Buckles then took a recess to allow Smith and Henley to confer. The recess lasted almost an hour, and when courtroom proceedings were reconvened Henley was brought into the courtroom. At that time, Judge Buckles explained to Henley that “it was reported that Mr. Smith, your attorney, had a brother - has a brother who is member of the Outcast Motorcycle Club and, in fact, it was reported that he is the president of that club.” [Doc. #16-1 at 9]. Judge Buckles told Henley that the situation “creates a potential conflict of interest” because “there are allegations in the indictment that you and other members of the Wheels of Soul conspired to murder members of the Outcast Motorcycle Club.” [Id. at 10]. After pointing out that Henley (who has a master's degree in international business) was “an intelligent and educated man, ” Judge Buckles outlined the potential conflict of interest that had arisen by virtue of Smith's brother's membership in Outcast as follows:

Mr. Smith owes you or any client that he has a duty of loyalty and representation to you. And his sole duty ought to be your interests in this case and his interests ought to be of - the only concern of him in this case.
And he could find himself in a position where he may be having to try and gather information about that which he used in your defense about these other members of this other club, including his own brother. And he might find himself in a position where he's having to attack the credibility of those persons by bringing up, you know, information that he knows about these other persons.
And, you know, he could be in a situation where he has loyalties, you know, blood loyalties to family members, but then he has loyalties to you. And what if these two loyalties are in conflict? Is that always going to be in the back of his mind or is he going to - you know, how is going to deal with that?

[Id. at 11]. To provide Smith and Henley sufficient opportunity to fully discuss the issue, Judge Buckles continued the matter for further hearing on March 8, 2012. Before recess was called, Henley asked Judge Buckles what would happen if “after getting all the rest of the information needed and going over it [] I made a decision to keep my attorney.” [Id. at 15]. Henley also asked if Judge Buckles would make the decision if his “attorney decided that he did not want to proceed.” [Id.]. Judge Buckles responded that the ultimate decision was his, explaining that “I can find that there are certain circumstances that the conflict is so great that it can't be waived. Even though you think you can waive it and Mr. Smith thinks he can waive it, I may ultimately have to decide whether it's so severe that it - it's the kind of thing that can't be waived.” [Id. at 16-17]. Judge Buckles advised Henley that if he decided that Smith could not continue to represent him, he could hire a new lawyer or seek appointed counsel if he lacked sufficient resources to do so. [Id. at 16].

         Following the hearing, Smith and Henley engaged in “lengthy conversations” about the potential conflict of interest. [Aff. of Donnell Smith, Doc.# 16-2]. Although Smith initially decided to withdraw from representing Henley, he did not do so because Henley insisted he remain on the case. [Id.]. Henley explained that “if the government wanted [Smith] off, [Henley] wanted [him] on.” [Id.].

         At the continuation of the hearing on March 8, 2012, Smith announced that he had conducted some additional investigation and acquired some “information that I'm sharing with the Court [and] I've also shared with my client.” [Doc. #16-3 at 5]. Smith stated that his brother became the president of Outcast “just before the events of January 2011” and was present at the January 29, 2011 event where Henley and other Wheels of Soul members allegedly conspired to murder Outcast members. [Id. at 5-6]. Smith confirmed that Henley did not know his brother and that his brother did not know Henley. [Id. at 5]. Judge Buckles then asked Smith whether he understood “how there could be the appearance of a potential conflict of interest here” which required the Court to conduct an inquiry. [Id. at 6]. Smith indicated that he understood and had explained it to Henley. [Id.].

         Judge Buckles then proceeded to recite the case law as it pertains to potential conflicts of interest, first recognizing the “presumption in favor of [Henley's] counsel of choice.” [Id. at 7]. As Judge Buckles explained, the “presumption may be overcome not only by a demonstration of actual conflict but by a showing of serious potential for conflict.” [Id.] Judge Buckles then asked Smith if he wanted to continue representing Henley in the case, and he responded in the affirmative. [Id. at 9]. Smith then told the Court that “Mr. Henley and I have gone through this in great detail and given it a considerable amount of deliberation, and he also wishes that I continue to represent him.” [Id. at 10].

         Judge Buckles then had Henley placed under oath and questioned him. Henley told Judge Buckles that he was 34 years old and had a master's degree in international business. [Id. at 10-11]. His last job was as a supervisor for a steel foundry. [Id. at 11]. Henley confirmed that he was fully literate and not under the influence of medication or alcohol. [Id.]. After Smith indicated that he had no reason to doubt Henley's competency, Judge Buckles found Henley competent to proceed and advised him of his right to consult with his attorney before answering any question. [Id. at 12]. Judge Buckles explained again that the purpose of the hearing was to conduct an inquiry into “at least the appearance of a potential conflict of interest” created by “the status of Mr. Smith's brother.” [Id. at 12]. Henley acknowledged that he understood the purpose of the hearing as well as the fact that he faced substantial penalties, including a term of life imprisonment, if he were convicted. [Id.at 12]. Judge Buckles then engaged in the following lengthy colloquy with Henley:

THE COURT: All right. Now, we have a situation, again, where it would appear to me - and again this is conjecture. But that's what we are dealing with, conjecture here. There could be the possibility that members of the group of which Mr. Smith's brother is a member and president, as he's confirmed now, could be called as witnesses in this case. There's even the potential that Mr. Smith's brother could be called as a witness in this case, okay, in which case, Mr. Smith would have to cross-examine him, and if he is saying things that are adverse to your interest, to try and attack his credibility and destroy his credibility. You know, that could be a difficult situation. Here is a person who is going to be faced with a situation of trying to make his brother look as bad as he could possibly make him look in carrying out the duties that he has to do in defending you. Okay.
And there's the possibility that this is always going to be in the back of his mind. Okay. “How am I going to do this? You know, what's going to happen when I sit down with the rest of my family at the dinner table and, you know, have to deal with what I had to do to my brother?” Okay. “Am I going to be able to deal with that in the future?” It's also probably going to be in your mind. Okay. “Did he really do everything he could do?” Okay. If down the line things don't work out, you know, in spite of Mr. Smith's best ability and defending and representing you, if you are nevertheless convicted in this case and say if you are sentenced to a term of life imprisonment, okay, you are going to have a long time to sit and think about these things. Okay.
And I guarantee you, you will be thinking about them if that happens in those circumstances. You are going to be sitting there in some federal prison and thinking about why you are here. You are going to be sitting there. And this is what people in prison do. Okay. You are going to be sitting over there. You are going to be pouring over the transcripts of the trial and all of these proceedings page by page, and you are going to be looking and going to be saying, “Hmm, I wonder why he ...

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