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Petty v. United States

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

June 22, 2018

DEJUAN PETTY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This 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.

         “A 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.

         Facts and Background

         A 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 crime.

         After 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.

         During 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.

         Petitioner 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.

         GROUNDS FOR RELIEF

         Petitioner 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 appropriate.

         Applicable Standard

         In 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.

         To be 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.

         Not 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 ‚Äúthere is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. ...


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