United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's motion to
Vacate, Set Aside or Correct Sentence [Doc. #1] pursuant to
28 U.S.C. § 2255, filed on May 8, 2015, wherein he
alleges he received ineffective assistance of counsel. On
August 21, 2015, Petitioner filed a request to amend his
§ 2255 motion to add claims that his counsel was
ineffective for failing to adequately advise him that his
plea agreement contained a provision waiving his right to
file a motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582 and argue that his role in the conspiracy ended
in 2011 and therefore a lower drug quantity was appropriate.
On November 30, 2015 the United States of America responded
[Doc. # 14] to the motion. Thereafter, on September, 8, 2015
Petitioner was granted leave to file an amendment to his
original petition, which the Court has construed as his
traverse. For the reasons set forth below the Motion will be
denied and no hearing will be granted.
petitioner is entitled to an evidentiary hearing on a section
2255 motion unless ‘the motion and the files and the
records of the case conclusively show that [he] is entitled
to no relief.'” Franco v. United States,
762 F.3d 761, 763 (8th Cir. 2014) (quoting Anjulo-Lopez
v. United States, 541 F.3d 814, 817 (8th Cir. 2008)).
However, no hearing is required “where the claim is
inadequate on its face or if the record affirmatively refutes
the factual assertions upon which it is based.”
Franco, 762 F.3d at 763.
federal grand jury returned an indictment against Petitioner.
Petitioner was later charged by way of a superseding
indictment with Count I, conspiring with 11 others to
distribute and possess with intent to distribute in excess of
five kilograms of cocaine, 280 grams of cocaine base, and 50
kilograms of marijuana; and Count II, possessing and
discharging a firearm in furtherance of a drug trafficking
hearings were conducted on motions filed by Petitioner, the
matter was set for trial on February 24, 2014. Plea
negotiations proceeded and the parties appeared before this
Court on February 12, 2014 to dispose of the pending charges
by way of a plea of guilty, consistent with the Guilty Plea
Agreement which was signed by all parties. Petitioner entered
a plea of guilty to Count I and the United States of America
agreed that Count II would be dismissed at sentencing. The
parties also agreed that there would be a recommended
sentence of 195 months and that the sentence would run
concurrently with a previous felon in possession charge.
the plea colloquy, and with Petitioner being under oath, this
Court inquired regarding Petitioner's satisfaction with
representation by his attorney. He responded he was fully
satisfied with the work his attorney performed and the way in
which it was performed. He further stated he fully understood
all matters regarding his case and that whatever he wanted
done by his attorney was done by his attorney.
also accepted that he was entering the plea of guilty of his
own volition, without any threats, duress or coercion. He
also acknowledged he was fully aware of the range of
punishment available under the law and that there was no
promise of any particular sentence.
alleges ineffective assistance of counsel in that counsel (1)
Altered the language of the original, agreed-upon conditions
of the Rule 11 plea agreement resulting in the waiver of his
right to collaterally attack the sentence without his
knowledge or consent; (2) Failed to seek jail time credit for
time Petitioner served in the County and City jails and
providing an inaccurate estimate of the total amount of time
Petitioner would serve. Petitioner, filed an amended motion
on August 21, 2015 to include (3) his attorney failed to
adequately advise him that his plea agreement contained a
provision waiving his right to file a motion to reduce his
sentence pursuant to 18 U.S.C. § 3582; and (4) His
attorney failed to argue that his role in the conspiracy
ended in 2011 and therefore a lower drug quantity was
order to succeed on an ineffective assistance of counsel
claim, a movant must show that counsel's performance was
deficient and that the deficient performance prejudiced the
movant's case. Strickland v. Washington, 466
U.S. 668, 687 (1984); United States v. Sera, 267
F.3d 872, 874 (8th Cir. 2001); DeRoo v. United
States, 223 F.3d 919, 925 (8th Cir.
2000). In this regard movants face a heavy burden.
DeRoo, 223 F.3d 919, 925.
considered deficient, an attorney's performance must fall
“below an objective standard of reasonableness.”
Strickland, at 687-88; Sera, 267 F.3d at
874. Demonstration of this objective standard is typically
fraught with considerable difficulty as there is a
”strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.
United States v. Rice, 449 F.3d 7, 897 (8th Cir.
2006) (quoting Strickland, 466 U.S. at 689);
Sera, 267 F.3d at 874. See also Ford v.
Lockhart, 905 F.2d 458, 462 (8th Cir. 1990)
(evaluation of a claim of ineffective assistance of counsel
is highly deferential with a strong presumption that counsel
acted competently). Additionally, “strategic choices
made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.”
Rice, 449 F.3d at 897(quoting Strickland,
466 U.S. at 690). When reviewing counsel's performance, a
Court must avoid using “the distorting effects of
hindsight” and must evaluate the reasonableness of
counsel's conduct “from counsel's perspective
at the time.” Strickland, 466 U.S. at 689.
only must a movant prove deficiency in counsel's
performance, but a movant is also required to establish
“any deficiencies in counsel's performance must be
prejudicial to the defense in order to constitute ineffective
assistance under the Constitution.”
Strickland, 466 U.S. at 692. It must be established
by a preponderance of evidence that “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. ...