JEAN C. HAMILTON, District Judge.
This matter is before the Court on
By way of background, on July 9, 2008, Movant pled guilty to one count of conspiracy to distribute and possess with the intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), and one count of conspiracy to launder money, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) and (B)(i).
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On October 24, 2008, Movant was sentenced to 151 months imprisonment on each count, such terms to run concurrently, followed by a five year term of supervised release. (Judgment (4:07CR679 JCH, ECF No. 52)). Movant did not file a direct appeal at that time, but she later filed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. The Court granted this § 2255 Motion, and set aside Movant's original sentence on December 17, 2010. Movant was resentenced on March 11, 2011, to 120 months imprisonment, followed by five years supervised release. (Amended Judgment (4:07CR679 JCH, ECF No. 74)). She appealed this latter sentence, but the Eighth Circuit Court of Appeals dismissed her appeal in an opinion entered February 9, 2012. (Judgment of the Eighth Circuit Court of Appeals (4:07CR679 JCH, ECF No. 86)).
As stated above, Movant filed the instant § 2255 Motion on March 12, 2012, alleging she received ineffective assistance of counsel in that counsel:
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. 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).
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) (citing 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).
As stated above, in Ground 1 of her § 2255 Motion Movant asserts she received ineffective assistance of counsel, in that trial counsel failed to object to allegedly false information in the Plea Agreement. (Memorandum in Support of § 2255 Motion, PP. 3-4). Specifically, Movant alleges the Plea Agreement contained the following false information: (1) that Movant was involved with the conspiracy through November 8, 2007; (2) that Movant was a supervisor/manager of the drug conspiracy; (3) that Movant distributed heroin to several people; (4) that a co-Defendant deposited money into a bank account for Movant; (5) that Movant had co-conspirators storing, selling, and transferring drugs on her behalf; and (6) that money was seized from Movant on July 30, 2002.
In order to prevail on a claim of ineffective assistance of counsel, Movant must show that her 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, she is not entitled to relief unless she 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. In the context of a guilty plea, to demonstrate prejudice the Movant must show that, but for counsel's error, she would not have pled guilty, but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
Upon consideration the Court finds that with this claim, Movant fails to demonstrate the requisite prejudice; in other words, she fails to establish that absent her counsel's alleged error, she would have insisted on proceeding to trial. Rather, during the guilty plea proceeding the District Court questioned Movant extensively regarding her understanding of the Plea Agreement and her decision to plead guilty, as follows:
(Change of Plea Hearing Transcript (4:07CR679 JCH, ECF No. 62), PP. 2-3, 4-6). The Court further questioned Movant regarding her understanding of the possible penalties associated with her plea of guilty. (
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The Eighth Circuit has held that, "`[s]olemn declarations in open court carry a strong presumption of verity.'" Smith v. Lockhart, 921 F.2d 154, 157 (8th Cir. 1990) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977)). This Court thus finds that Movant's own testimony demonstrates she committed the offenses at issue, voluntarily pled guilty, and received effective assistance of counsel. Smith, 921 F.2d at 157. Ground 1 of Movant's § 2255 Motion will therefore be denied.
As stated above, in Ground 2 of her § 2255 Motion Movant asserts she received ineffective assistance of counsel, in that trial counsel failed to advise Movant regarding the nature and circumstances of the Plea Agreement. (Memorandum in Support of § 2255 Motion, P. 4). Specifically, Movant asserts counsel failed to explain that she would face a mandatory minimum sentence in the event that she pled guilty, nor did he explain the United States Sentencing Guidelines ranges and the effect they would have on Movant's sentence. Furthermore, Movant asserts counsel failed to explain that entering into the Plea Agreement was optional.
Upon consideration, the Court again finds that with this claim Movant fails to demonstrate the requisite prejudice, as her claim is belied by her testimony during the guilty plea proceeding, as follows:
(Change of Plea Hearing Transcript (4:07CR679 JCH, ECF No. 62), PP. 6-8, 9-11).
As noted above, the Eighth Circuit has held that, "`[s]olemn declarations in open court carry a strong presumption of verity.'" Smith, 921 F.2d at 157. This Court thus finds that Movant's own testimony demonstrates Movant was aware of both the mandatory minimum sentence she faced, and the possible effects of the United States Sentencing Guidelines on her sentence. Movant's testimony further demonstrates she understood the voluntary nature of her plea, and the rights she was relinquishing in entering the plea. Under these circumstances, Movant fails to establish that, but for counsel's alleged error, she would not have pled guilty, but would have insisted on going to trial. Hill, 474 U.S. at 59. Ground 2 of Movant's § 2255 Motion will therefore be denied.
As stated above, in Ground 3 of her § 2255 Motion Movant asserts she received ineffective assistance of counsel, in that trial counsel failed to object to the imposition of an aggravated role adjustment in the PSR. (Memorandum in Support of § 2255 Motion, P. 4). Specifically, Movant asserts that although she advised counsel she was neither a manager nor a supervisor, counsel failed to object to the enhancement.
As noted above, the Plea Agreement in Movant's case contained the following relevant provision: "
As noted above, the Eighth Circuit has held that, "`[s]olemn declarations in open court carry a strong presumption of verity.'" Smith, 921 F.2d at 157. This Court thus finds that Movant's own testimony establishes Movant was a manager or supervisor of a criminal activity that involved five or more participants, and thus her counsel was not deficient for failing to object on that basis. Ground 3 of Movant's § 2255 Motion will therefore be denied.
As stated above, in Ground 4 of her § 2255 Motion Movant asserts she received ineffective assistance of counsel, in that trial counsel failed to investigate and prepare for the sentencing hearing. (Memorandum in Support of § 2255 Motion, PP. 4-5). Specifically, Movant complains counsel was not familiar with several elements of her case, including her strong family responsibilities as a single mother, and her extensive volunteerism at local schools and churches.
Upon review, the Court finds Movant's claim once again is belied by the record. Movant's attorney timely filed objections to the PSR. (4:07CR679 JCH, ECF No. 45). During the sentencing hearing in Movant's case, trial counsel made a long and impassioned speech on her behalf. (Sentencing Hearing Transcript (4:07CR679 JCH, ECF No. 63), PP. 5-11). Counsel spoke of Movant's efforts to support her children, and to provide for their emotional and financial well-being. He further noted her post-arrest initiative in starting a new business that employed several people, and reminded the Court that she had incurred no violations during her period of house arrest. Under these circumstances, the Court does not find Movant's attorney's efforts on her behalf during the sentencing phase of her case fell outside the wide range of professionally competent assistance sanctioned by Strickland, and so Ground 4 of her § 2255 Motion must be denied.
Accordingly,
