United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
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.
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.
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 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.
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].
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
[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].
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]
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.].
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].
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.
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 ...