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Reid v. United States

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

December 3, 2019

WARNELL REID, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          JEAN C. HAMILTON, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on pro se Movant Warnell Reid's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed November 10, 2016. (ECF No. 1).

         BACKGROUND

         On November 30, 2011, Movant was charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Movant proceeded to trial, and on August 29, 2012, the jury returned a verdict of guilty.

         Following Movant's conviction, the United States Probation Office prepared a Presentence Investigation Report (“PSR”), in which it concluded that Movant qualified as an Armed Career Criminal (“ACC”) pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e), based upon three prior convictions for violent felonies. This resulted in an advisory sentencing guidelines range of 188 to 235 months. On November 16, 2012, the Court sentenced Movant to 188 months imprisonment, to be followed by a two-year term of supervised release.

         Movant appealed his conviction and sentence to the Eighth Circuit Court of Appeals, raising the following two issues: (1) that the District Court erred in failing to suppress the evidence, and (2) that the District Court erred in finding Movant to be an ACC. In an opinion issued October 20, 2014, the Eighth Circuit held that the search complied with the Fourth Amendment. The Eighth Circuit found Movant's prior conviction for attempted burglary under Missouri law was not a “violent felony” for purposes of § 924(e), however. The Court therefore affirmed the conviction, but vacated the sentence and remanded the case to this Court for resentencing. See United States v. Reid, 769 F.3d 990 (8th Cir. 2014).

         On March 20, 2015, the Court sentenced Movant to a term of 96 months imprisonment, to be followed by two years supervised release. Movant again appealed, raising claims of procedural error and substantive unreasonableness. The Eighth Circuit affirmed this Court's sentence on July 5, 2016. See United States v. Reid, 827 F.3d 797 (8th Cir. 2016).

         As stated above, Movant filed the instant § 2255 Motion on November 10, 2016[1], raising numerous grounds for relief.

         STANDARDS GOVERNING MOTIONS UNDER 28 U.S.C. § 2255

         Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief on the ground that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack...” 28 U.S.C. § 2255(a). Claims based on a federal statute or rule, rather than on a specific constitutional guarantee, “can be raised on collateral review only if the alleged error constituted a ‘fundamental defect which inherently results in a complete miscarriage of justice.'” Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (citations omitted).[2]

         The Court must hold an evidentiary hearing to consider claims in a § 2255 motion “‘[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'” Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994), quoting 28 U.S.C. § 2255. Thus, a movant is entitled to an evidentiary hearing “‘when the facts alleged, if true, would entitle him to relief.'” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996), quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986). The Court may dismiss a claim “without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.” Shaw, 24 F.3d at 1043 (citation omitted).

         DISCUSSION

         I. Procedural Default

         A collateral attack pursuant to § 2255 is not a substitute for a direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982). Therefore, a movant ordinarily is precluded from asserting claims in a § 2255 motion that he has failed to raise on direct appeal. McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001); Poor Thunder v. United States, 810 F.2d 817, 823 (8th Cir. 1987). “A defendant who has procedurally defaulted a claim by failing to raise it on direct review may raise that claim in a Section 2255 proceeding only by demonstrating cause for the default and prejudice or actual innocence.” McNeal, 249 F.3d at 749 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).

         In Ground 2 of his § 2255 Motion, Movant claims his constitutional right to due process was violated when the District Court refused to grant his pro se motion for recusal. (§ 2255 Motion, P. 4). Upon consideration the Court finds Movant could have raised this issue on direct appeal, but did not do so. The claim thus is procedurally defaulted. See Poor Thunder, 810 F.2d at 823 (internal citation omitted) (“[N]ormally a collateral attack should not be entertained if defendant failed, for no good reason, to use another available avenue of relief.”). In order to overcome his procedural default, Movant was required to demonstrate cause and actual prejudice, or actual innocence. Bousley, 523 U.S. at 622. Movant fails to demonstrate cause for the default[3], nor does he present evidence tending to establish that he is actually innocent of the crime for which he was convicted. Ground 2 of Movant's § 2255 Motion is therefore procedurally barred and will not be addressed on the merits.

         II. Claims Addressed On The Merits

         A. Ground 1

         In Ground 1 of his § 2255 Motion, Movant asserts his trial counsel was ineffective for failing to file a motion to recuse this Court after Movant requested that he do so. (§ 2255 Motion, P. 2). Movant contends recusal was warranted because:

the instant district court was responsible for issuing an arrest warrant for Earnestine Graham for a supervised release violation, during this arrest Ms. Graham's residence was searched, and firearms were found. Movant was arrested with Ms. Graham who had a revocation hearing in front of this instant court on November 28, 2011….Ms. Graham was charged with a firearm violation, and she through her attorney filed a petition in the district court stating all the firearms belonged to movant….Ms. Graham received a rule 35 substantial assistance reduction because of her cooperation for testifying at trial by this instant court. Movant states that this instant court is also biased because movant had an evidentiary hearing in front of this instant court in 1999, Judge Jean C. Hamilton on this very charge that makes movant a convicted felon in this instant 922(g) charge, Robbery 1st.

(Id.).[4]

         In order to prevail on a claim of ineffective assistance of counsel, Movant must show that his attorney's performance was “deficient, ” and that the deficient performance was “prejudicial.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. To overcome this presumption, Movant must prove that, “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id.

         Even if Movant satisfies the performance component of the analysis, he is not entitled to relief unless he can prove sufficient prejudice. Id. at 691. Movant must prove that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

         Upon consideration the Court finds that with this claim, Movant fails to satisfy the prejudice prong of his claim of ineffective assistance of counsel. The Court's review of the record reveals that Movant himself filed a pro se motion for this Court to recuse on February 15, 2012, in which he raised the same concerns raised in the instant motion. (See Case No. 4:11CR499 JCH, ECF No. 47). The Court denied the motion, and Movant offers no explanation as to why a motion filed by his attorney would have succeeded where his pro se motion failed. Movant thus fails to demonstrate that absent trial counsel's alleged error, the result of the proceeding would have been different, and so this portion of Movant's § 2255 Motion must be denied.

         B. Ground 21[5]

         In Ground 3 of his § 2255 Motion Movant alleges his appellate counsel was ineffective, for failing to appeal the District Court's denial of Movant's pro se motion for recusal. (§ 2255 Motion, P. 25).[6] Movant was entitled to effective assistance of counsel on direct appeal because it was his “first appeal as of right.”[7] Reese v. Frey, 801 F.2d 348, 351 (8th Cir. 1986) (citation omitted). As noted above, in order to prevail on a claim of ineffective assistance of counsel, Movant must show that his attorney's performance was “deficient, ” and that the deficient performance was “prejudicial.” Strickland, 466 U.S. at 687.[8] Appellate advocates often winnow out weaker arguments on appeal, see United States v. Brown, 528 F.3d 1030, 1032 (8th Cir. 2008), and absent contrary evidence, the Court “assumes that appellate counsel's failure to raise a claim was an exercise of sound appellate strategy.” Id. at 1033 (citation omitted).

         Even if Movant satisfies the performance component of the analysis, he is not entitled to relief unless he can prove sufficient prejudice. Strickland, 466 U.S. at 694. In the context of ineffective assistance on appeal, a movant makes a sufficient showing of prejudice if an omitted issue had “arguable merit, ” and if there is a “reasonable probability that his direct appeal would have been successful had the issue been submitted.” Reese, 801 F.2d at 351.

         In his § 2255 Motion, Movant essentially raises two reasons this Court allegedly should have recused itself. First, Movant claims the Court was biased because both his case and that of Earnestine Graham were before the Court. Movant does not point to facts the Court allegedly learned in Ms. Graham's case that it would not otherwise have known, however, nor does he explain why the fact that Ms. Graham ultimately cooperated resulted in this Court being biased against Movant.

         Second, Movant claims the Court was biased because it previously sentenced Movant in one of his earlier Missouri criminal cases. Movant raised a similar issue in his second appeal to the Eighth Circuit, and the Court rejected the claim. See United States v. Reid, 827 F.3d at 803.

         Upon consideration of the foregoing, the Court finds that with this claim, Movant fails to establish either prong of the Strickland test. In other words, given the Eighth Circuit's rejection of a similar argument, Movant fails to show either that appellate counsel was ineffective (for failing to raise this meritless issue on direct appeal), or that there is a reasonable probability his direct appeal would have been successful had the issue been submitted. Ground 21 will therefore be denied.

         C. Grounds 3 and 25

         In Ground 3 of his § 2255 Motion Movant asserts he received ineffective assistance of trial counsel, because counsel failed to file a motion to dismiss the indictment pursuant to the Speedy Trial Act. (§ 2255 Motion, P. 5). In Ground 25, Movant asserts he received ineffective assistance of counsel on appeal, as appellate counsel ...


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