United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court following an evidentiary
hearing held on February 21, 2019, on Petitioner Jesse
Hampton's Motion and Amended Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (ECF Nos. 1, 6). In its Memorandum
and Order dated January 24, 2019 (ECF No. 21), the Court
denied Petitioner's claims for relief in his Motion, with
the exception of his claim in Ground One that he received
ineffective assistance of counsel as his counsel erroneously
advised him he would receive a concurrent sentence and
significant jail time credit if he pleaded guilty. With
respect to that claim, the Court found that an evidentiary
hearing was necessary to determine whether Movant received
ineffective assistance of counsel entitling him to relief.
establish a claim for ineffective assistance of counsel, a
defendant must show the counsel's performance was
deficient and counsel's deficiency prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Under the first prong, the measure of an
attorney's performance is “reasonableness under
prevailing professional norms.” Id. at 688.
“To establish the second prong of prejudice, the
defendant must show “there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694. When a defendant has pled guilty, the
defendant must demonstrate there is a “reasonable
probability that, but for counsel's errors, he would not
have pleaded guilty and would have insisted on going to
trial.” Matthews v. United States, 114 F.3d
112, 114 (8th Cir. 1997) (citing Hill v. Lockhart,
474 U.S. 52, 59 (1985)).
noted above, Petitioner raised two claims of ineffective
assistance of counsel which were addressed at the evidentiary
hearing. The Court will first consider Petitioner's
contention that his counsel was ineffective as he advised
Petitioner that he would receive jail time credit in his 2016
Criminal Case for time served commencing February 13,
2014, the date Petitioner was incarcerated in his 2013
Criminal Case. As noted in the Court's prior
Memorandum and Order, the United States Department of Justice
Bureau of Prisons (“BOP”) has the authority to
determine when a federal sentence commences. United
States v. Wilson, 503 U.S. 329, 335, 112 S.Ct. 1351, 117
L.Ed.2d 593 (1992); United States v. Hayes, 535 F.3d
907, 910 (8th Cir. 2008). Here, the BOP made the
determination that Petitioner was not entitled to receive
credit in his 2016 Criminal Case for the time served going
back to February 13, 2014, when his federal sentence was
imposed for the 2013 Criminal Case. (ECF No. 1-2).
Petitioner contends his counsel assured him that he would
receive this credit, the testimony provided at the hearing
does not bear out Petitioner's averment. Instead, the
Court finds credible Mr. Kilgore's testimony that he did
not advise Petitioner he would get credit for time served
prior to the date of his arrest in the 2016 Criminal Case and
that he further informed Petitioner that ultimately it was up
to the BOP to calculate any credit for time served.
Accordingly, the Court finds that counsel did not provide
Petitioner with erroneous advice regarding jail time credit
and concludes Petitioner cannot establish ineffective
assistance of counsel because he fails to satisfy the
deficient performance prong of Strickland. See
Strickland, 466 U.S. at 697 (concluding a court need not
address both prongs of the analysis if the defendant makes an
insufficient showing on either prong).
Court will accordingly turn to Petitioner's remaining
allegation-that he received ineffective assistance as his
counsel provided him incorrect information about the
consecutive nature of his sentence in his 2016 Criminal Case.
Petitioner pleaded guilty to one count of Discharging a
Firearm in Furtherance of a Crime of Violence Resulting in
Murder in violation of 18 U.S.C §§ 924(c) and (j) .
The Court sentenced Petitioner to a term of imprisonment of
264 months to “run concurrently with the
sentence the defendant is currently serving from the Circuit
Court, St. Louis, Missouri, Docket Numbers 1422-CR00459 and
1422-CR00461, and the United States District Court, Eastern
District of Missouri, Docket Number 4:13CR00309 SNLJ. (2016
CD ECF No. 107) (emphasis added).
the statute under which Petitioner pleaded guilty requires
the Court to sentence Petitioner to consecutive
sentences, not concurrent sentences. The statute states
Notwithstanding any other provision of law . . . no term of
imprisonment imposed on a person under this subsection shall
run concurrently with any other term of imprisonment
imposed on the person, including any term of imprisonment
imposed for the crime of violence or drug trafficking crime
during which the firearm was used, carried, or possessed.
18 U.S.C. § 924(c)(1)(D) (emphasis added). The wording
of the statute could not be clearer. The 264 month term of
imprisonment, if imposed according to the statute, must run
consecutively to “any other term of imprisonment,
” which includes the sentences he was then serving from
the Circuit Court and the United States District Court.
See United States v. Murphy, 69 F.3d 237, 244 (8th
Cir. 1995) (determining the defendant's sixty-month term
for use of a firearm under section 924(c) was statutorily
mandated to run consecutively to any other term of
imprisonment, including a federal drug sentence and a state
sentence for second-degree murder).
noted in the “Criminal History” section of
Petitioner's Final Presentence Investigation Report (2016
CD ECF No. 101), the following sentences were imposed upon
Petitioner at the time he was sentenced to 264 months by this
Court in his 2016 Criminal Case: Judge Stephen Limbaugh Jr.
sentenced Petitioner to 84 months' imprisonment in his
2013 District Court Case (Docket Number 4:13CR00309
SNLJ). In his two St. Louis Circuit Court cases,
Docket Numbers 1422-CR00459 and 1422-CR00461, Petitioner was
sentenced to an aggregate of 6 years and 12 years'
imprisonment, respectively. Under 18 U.S.C §
924(c)(1)(D), the 264 month sentence imposed upon Petitioner
was required to run consecutively to his state sentences and
District Court sentence. Clearly, running his sentence
concurrently versus consecutively to his other three
sentences would greatly affect the length of his
upon the evidence presented at the hearing and the clear
language of 18 U.S.C. § 924(c)(1)(D), the Court
concludes that Petitioner was erroneously advised by his
counsel as to the statutorily mandated consecutive nature of
his sentence in his 2016 Criminal Case. Petitioner testified
counsel advised him that his sentence would run concurrently
with the other sentences he was currently serving. Counsel
Patrick Kilgore testified that, at the time of the plea, he
was under the impression that Petitioner's sentence could
run concurrently with his other sentences at and he advised
Petitioner that concurrent sentences were a possibility.
Counsel admits he failed to inform Petitioner that if he
plead guilty to a violation of 18 U.S.C. § 924,
Petitioner's sentence would be statutorily mandated to
run consecutively to the other sentences he was serving in
the St. Louis County Circuit Court and the District Court.
Counsel further conceded he erred in not advising Petitioner
that his sentence needed to run consecutively.
noted above, under Strickland, a defendant must show
the counsel's performance was deficient and counsel's
deficiency prejudiced the defense. Strickland, 466
U.S. at 687. A defendant must be informed of the direct
consequences of a guilty plea for the plea to be voluntary
and intelligent. George v. Black, 732 F.2d 108, 110
(8th Cir. 1984). Here, counsel provided erroneous advice
about the direct consequences of a guilty plea that would
directly impacted the range of Petitioner's punishment.
Thus, Petitioner has satisfied the first prong of deficient
performance under Strickland. Additionally,
Petitioner has established the prejudice required under the
second prong of Strickland as the Court finds
Petitoner's testimony credible that but for his
counsel's erroneous advice, he would not have pled guilty
and would have insisted on proceeding to trail. See
Matthews v. United States, 114 F.3d 112, 114 (8th Cir.
the Court concludes Petitioner's Sixth Amendment right to
counsel, as incorporated by the Fourteenth Amendment, was
violated and he is entitled to relief from his sentence on
that basis. The Court must add here, that although it finds
counsel's assistance ineffective, it does so while
equally acknowledging its own responsibility in failing to
sentence Petitioner in accordance with the statute, and
confesses that in ordering Petitioner's sentence to run
concurrently, it committed judicial error. As such, based
upon its finding of ineffective assistance of counsel, the
Court will grant the relief requested by Petitioner and set
aside his previously entered plea of guilty.
IT IS HEREBY ORDERED that Petitioner's
Motion and Amended Motion under 28 U.S.C § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody [ECF Nos. 1 and 6] is GRANTED, as to Ground