CATHERINE D. PERRY, District Judge.
Daryl Warren seeks to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Warren was convicted by a jury of conspiring to possess with intent to distribute cocaine (Count III), possessing firearms in furtherance of a drug trafficking crime (Count IV), and being a felon in possession of firearms (Count V). Case No. 4:13 CR 221 CDP. Warren was sentenced to 151 months imprisonment on Count III and 120 months on Count V, to be served concurrently, and 60 months imprisonment on Count IV, to be served consecutively, for an aggregate sentence of 211 months imprisonment. Warren appealed, and the Eighth Circuit Court of Appeals affirmed his conviction and sentence. United States v. Warren, 788 F.3d 805 (8th Cir. 2015). The United States Supreme Court denied Warren's certiorari on October 13, 2015.
Warren then filed this § 2255 motion pro se, raising the following claims:
Warren's ineffective assistance of counsel claims are conclusively refuted by the trial record. The evidence against him was very strong, as set forth in great detail in the appellate opinion affirming his conviction and sentence. I will deny Warren's motion without an evidentiary hearing for the reasons that follow.
The Eighth Circuit Court of Appeals summarized the evidence against Warren and his co-defendants as follows:
Warren, 788 F.3d at 807-10.
The records before me conclusively demonstrate that Warren has 110 right to relief. I will not hold an evidentiary hearing on this matter. "A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless the motion and the files and records of the case conclusively show that he is entitled to no relief." Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008) (internal quotation marks omitted). "No hearing is required, however, where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Id. (internal quotation marks and citations omitted). The record here conclusively refutes the claims, so I will not hold an evidentiary hearing.
Warren brings claims of ineffective assistance of trial counsel. The Sixth Amendment establishes the right of the criminally accused to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To state a claim for ineffective assistance of counsel, Warren must prove two elements of the claim. First, he "must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. at 687. In considering whether this showing has been accomplished, "judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. The courts seek to "eliminate the distorting effects of hindsight" by examining counsel's performance from counsel's perspective at the time of the alleged error. Id. Second, Warren "must show that the deficient performance prejudiced the defense." Id. at 687. This requires him to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The court need not address both components if the movant makes an insufficient showing on one of the prongs. Engelen v. United States, 68 F.3d 238,241 (8th Cir. 1995). Under these standards, Warren did not receive ineffective assistance from his attorney.
In his first ground for relief, Warren alleges that his attorney was constitutionally ineffective because he failed to "object to evidence presented that proved facts which were materially different from those alleged in the complaint." According to Warren, "[t]here was no evidence of a drug conspiracy" because "there was absolutely no evidence of intent to traffic in drugs." Warren's argument is foreclosed by the Eighth Circuit as follows:
Warren, 788 F.3d 805 at 813. The issue of whether there was evidence of Warren's intent to traffic in the drugs he intended to rob was decided adversely to Warren at trial and on direct appeal and cannot be relitigated here. Moreover, no "fatal variance" occurred because the indictment "fully and fairly apprised the defendant of the charges he or she must meet at trial," United States v. Thomas, 791 F.3d 889, 897 (8th Cir. 2015), including the drug trafficking charge. Counsel cannot be ineffective for failing to raise a meritless argument, so Warren's claim fails as a matter of law. Ground 1 of Warren's § 2255 motion is denied.
In Ground 2, Warren alleges that his attorney was ineffective for failing to challenge the government's case based on racial targeting and profiling and outrageous government conduct. "The defense of outrageous government conduct is similar to, although different from, the defense of entrapment. Whereas the defense of entrapment focuses on the predisposition of the defendant to commit the crime, the defense of outrageous government conduct focuses on the government's actions." United States v. Williams, 720 F.3d 674, 685-86 (8th Cir. 2013) (quoting United States v. Hunt, 171 F.3d 1192, 1195 (8th Cir. 1999)). "[T]he level of outrageousness needed to prove a due process violation is quite high, and the government's conduct must shock the conscience of the court." United States v. King, 351 F.3d 859, 867 (8th Cir. 2003) (citation and internal quotation marks omitted); United States v. Bugh, 701 F.3d 888, 894 (8th Cir. 2012) ("Outrageous Government conduct requires dismissal of a charge `only if it falls within the narrow band of the most intolerable government conduct.'" (quoting United States v. Morse, 613 F.3d 787, 792-93 (8th Cir. 2010))); Hunt, 171 F.3d at 1195 ("[G]overnment agents `may go a long way in concert with the individual in question without being deemed to have acted so outrageously as to violate due process.'" (quoting United States v. Kummer, 15 F.3d 1455, 1460 (8th Cir. 1994))).
Given this high level of proof, appellate courts have consistently rejected the argument that this type of reverse-sting stash house operation amounted to outrageous government conduct. See e.g., United States v. Combs, 827 F.3d 790 (8th Cir. 2016) (rejecting defendant's argument that government's conduct in reverse-sting stash house operation violated his rights under Due Process Clause); United States v. Dennis, 826 F.3d 683 (3rd Cir. 2016); United States v. Hare, 820 F.3d 93, 102-04 (4th Cir. 2016); United States v. Flores, 650 Fed. Appx. 362 (9th Cir. 2016). To support his outrageous government conduct argument, Warren relies on arguments
In Ground 3, Warren argues that his attorney was ineffective for failing to challenge the applicability of 18 U.S.C. § 924(c) because "there was no drug trafficking crime." Warren's argument that there was no evidence of a drug trafficking crime fails for the reasons set out in Ground 1. Moreover, counsel repeatedly argued at trial and sentencing that Warren could not be convicted of the charged offenses because the "situation was basically fictitious." [Doc. # 256 at 2-3 in Case No. 4: 13 CR 221]. I rejected counsel's argument, and counsel cannot be found to be ineffective for failing to win a meritless argument. To the extent that Warren is attempting to argue that he did not possess a firearm, that argument is foreclosed by the evidence presented at trial, the jury verdict, and the Eighth Circuit, which found that "officers searched Warren's car and found a semiautomatic pistol and an assault rifle, both loaded." Warren, 788 F.3d at 809. Ground 3 of his § 2255 motion will be denied.
Warren filed a "notice of supplementary brief" on April 6, 2018 and another on January 14, 2019. Unlike his supplemental brief filed in May of 2017, however, these filings attach an amended § 2255 motion and purport to raise new claims not previously asserted in his timely § 2255 motion. Warren never filed a motion seeking leave to amend his§ 2255 motion, and the motions are untimely under the one-year statute of limitations. For these reasons, I will deny Warren's notices to supplement and do not consider these filings as part of his § 2255 motion.
As Warren has not made a substantial showing of the denial of a federal constitutional right, this Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)) (substantial showing must be debatable among reasonable jurists, reasonably subject to a different outcome on appeal or otherwise deserving of further proceedings).
Accordingly,
