ROSEANN A. KETCHMARK, District Judge.
Movant pleaded guilty to receipt and distribution of child pornography. He was sentenced below the Sentencing Guidelines to 180 months of imprisonment followed by 10 years of supervised release. Now before the Court is his second amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 on allegations of ineffective assistance of counsel by attorney Mr. Dee Wampler. Doc. 23.
On May 5, 2015, a federal grand jury returned a single-count indictment charging Movant with knowingly receiving and distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1). Crim. Doc. 1. On October 20, 2016, Movant pleaded guilty without a plea agreement. Crim. Doc. 41.
During the plea hearing, Movant indicated that he had had enough time to speak with his attorney. Crim. Doc. 44 at 9. Movant stated that he was satisfied with the advice of his counsel. Id. Further, Movant told the Court he understood that if convicted, "the minimum penalty the Court may impose is not less than five years, while the maximum penalty was not more than 20 years' imprisonment, not more than a $250,000 fine, not less than five years' supervised release, or not more than life supervised release, and a $100 mandatory special assessment." Doc. 44 at 3.
On January 19, 2017, a final presentence investigation report (PSR) was issued. Crim. Doc. 53. The PSR described Movant's offense conduct, and Movant did not object to the description. Id. at 3-5.
Doc. 53 at 4-6 (paragraph numbers omitted).
Although Movant did not object to the offense conduct portion of the PSR, he did lodge objections to the enhancements and his criminal history score. Crim. Doc. 52; see also Crim. Doc. 53 at 22-24.
Movant's sentencing hearing was conducted on February 22, 2017. Crim. Doc. 61. At the hearing, both defense counsel and Movant withdrew the objections to the sentencing enhancements, but submitted argument relating to the criminal history category. Crim. Doc. 64 at 3. Additionally, the Court asked Movant whether he had any corrections or changes that needed to be made to the PSR, and Movant responded that he did not. Crim. Doc. 64 at 4. After listening to counsel's arguments, the Court sustained Movant's sole remaining objection
The Court addressed Movant's motion for a downward departure. Crim. Doc. 64 at 17. The Court acknowledged several attachments, including an article by Valerie Wright, a statement to the U.S. Sentencing Commission, an article by Tess Lopez regarding Sentencing Guidelines and obscenity, and a report and assessment by Movant's treating psychologist, Dr. Michael S. Londe. Id. at 17-18 (citing Crim. Docs. 58, 59). The Court further considered eight character letters, including from several employees or former employees of Movant's company, Movant's mother, and other relatives. Crim. Doc. 64 at 18. Additionally, as set forth more fully below, Dr. Londe testified on Movant's behalf. Id. at 19.
After Movant addressed the Court and after arguments from both counsel, the Court noted some of the aggravating aspects of this offense, including that some of the children were very young, that there was a large collection of child pornography, and that some of the images were sadistic. Crim. Doc. 64 at 44. The Court noted Movant's 2006 history of being questioned about possession of child pornography and discredited any argument that Movant did not understand the nature of the offense. Id. at 44.
The Court additionally considered Movant's relatively steady work history and noted that it "differentiates him from many defendants that come in this building." Id. The Court also noted that defense counsel effectively pointed out factors that weigh in favor of Movant, including those in the articles that defense counsel provided. Id. at 45. The Court also gave "considerable weight" to the Government's argument the Court should vary downward. Id.
Ultimately, the Court varied downward based on the suggestions of both counsel, and sentenced Movant to 180 months' imprisonment, followed by 10 years' supervised release. Id.
Before the Court is Movant's second amended motion pursuant to § 2255 (Doc. 23),
Further facts are set forth as necessary.
Title 28 U.S.C. § 2255 provides that an individual in federal custody may file a motion to vacate, set aside, or correct his or her sentence by alleging "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[.]" A motion under this statute provides a statutory avenue through which to address constitutional or jurisdictional errors and errors of law that "constitute[] a fundamental defect which inherently results in a complete miscarriage of justice." Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (citations omitted).
A claim of ineffective assistance of counsel may be sufficient to attack a sentence under section 2255; however, the "movant faces a heavy burden." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). In such cases, the Court must scrutinize the ineffective assistance of counsel claim under the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). Id. Under Strickland, a prevailing defendant must prove "both that his counsel's representation was deficient and that the deficient performance prejudiced the defendant's case." Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988). As to the "deficiency" prong, the defendant must show that counsel "failed to exercise the customary skills and diligence that a reasonably competent attorney would [have] exhibit[ed] under similar circumstances." Id. (quoting Hayes v. Lockhart, 766 F.2d 1247, 1251 (8th Cir. 1985)). As to the "prejudice" prong, the defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Cheek, 858 F.2d at 1336 (quoting Strickland, 466 U.S. at 694). To be sure, "[c]ounsel's failure to advance a meritless argument cannot constitute ineffective assistance." Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994).
"A § 2255 motion can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (citation and quotation marks omitted). Additionally, a petition that consists only of "conclusory allegations unsupported by specifics [or] contentions that, in the face of the record, are wholly incredible," is insufficient to overcome the barrier to an evidentiary hearing on a § 2255 motion. Blackledge v. Allison, 431 U.S. 63, 74 (1977).
In Issue One, Movant alleges that counsel was ineffective for
Doc. 23 at 4.
Movant alleges his counsel should have sought a reduction under Guideline § 2G2.2(b)(1), which allows for a two-level decrease if the defendant's conduct was limited to receipt or solicitation and the defendant did not intend to distribute the material. To the extent Movant challenges the interpretation of the guideline, Respondent correctly notes that "ordinary questions of guideline interpretation falling short of the `miscarriage of justice' standard do not present a proper section 2255 claim." Sun Bear, 644 F.3d at 704 (citation omitted). In fact, this issue is properly raised on direct appeal. See United States v. Durham, 618 F.3d 921, 924 (8th Cir. 2010). To the extent Movant challenges the sufficiency of the evidence, any such claim is likewise not cognizable in this action. Anderson v. United States, 25 F.3d 704, 707 (8th Cir. 1994); see also Houser v. United States, 508 F.2d 509, 514 (8th Cir. 1974).
Movant cannot establish that counsel's performance was deficient for failing to object to the enhancement because the record supports the application of the enhancement. At the plea hearing, Movant agreed that the Government could prove in part that, "The defendant acknowledged owning the computer on which he installed the Ares file-sharing software and that he used it to download child pornography" and that "several videos depicting child pornography from a remote computer using a peer-to-peer file-sharing program" were on Defendant's computer. Crim. Doc. 44 at 7. Similarly, the offense conduct in the PSR states that Movant "acknowledged owning the computer on which he installed the Ares file-sharing software and that he used it to download child pornography," that his computer "was observed sharing several videos containing child pornography," and that an investigator "was able to obtain four video files from the suspect computer." Doc. 53 at 6. Movant thus admitted to the facts giving rise to the enhancement. See United States v. Abrica-Sanchez, 808 F.3d 330, 334 (8th Cir. 2015) ("[a] fact in a PSR to which the defendant has not specifically objected is a fact admitted by the defendant."). Counsel's performance was reasonable because any objection to the enhancement would have been meritless. Rodriguez, 17 F.3d at 226 (holding that counsel's failure to advance a meritless argument cannot constitute ineffective assistance).
Additionally, assuming the Court found counsel's performance deficient, Movant cannot meet his burden of establishing prejudice because even if an objection to the enhancement had been lodged and sustained, Movant's advisory Guidelines range would have been 151 to 188 months. Movant's sentence of 180 months is within that range. Similarly, Movant cannot show prejudice because he was adequately advised of the statutory range of punishment. Matthews v. United States, 114 F.3d 112, 114 (8th Cir. 1997) (noting that regardless of counsel's sentencing advice, movant could not show prejudice where court advised him of potential maximum sentence at plea proceeding and movant indicated he understood before pleading guilty). See also Meirovitz v. United States, 688 F.3d 369, 370 (8th Cir. 2012) (holding there is no miscarriage of justice where the sentence is below the statutory maximum and could be re-imposed if the relief requested was granted); Tinajero-Ortiz v. United States, 635 F.3d 1100, 1105 (8th Cir. 2011) (holding that movant did not meet his burden of establishing that counsel was ineffective as to either plea negotiations or sentencing where government and district court informed movant of his statutory sentencing range and that his advisory guideline range could differ from what his attorney predicted).
Movant is not entitled to relief as to Issue One.
Doc. 23 at 4.
Here, Movant broadly alleges that counsel failed to argue that Movant deserved a lesser sentence because he was needed to run the family business. The record indicates that during sentencing, defense counsel impressed upon the Court that Movant was the owner/operator of a successfully operating business that employed 11 people. In imposing the sentence, the Court praised Movant's steady work history and stated it would "deviate — vary downward based on the history and characteristics of the defendant and the nature and circumstances of the offense." Crim. Doc. 64 at 45. It is unclear what additional argument Movant's counsel could have undertaken on this matter so as to establish deficient performance. See Blackledge, 431 U.S. at 74 (a motion that consists only of "conclusory allegations unsupported by specifics [or] contentions that, in the face of the record, are wholly incredible," is insufficient to overcome the barrier to an evidentiary hearing on a § 2255 motion.)
Movant relies on United States v. Milikowsky, 65 F.3d 4 (2d Cir. 1995), in which the Court of Appeals for the Second Circuit rejected the Government's challenge to the sentence on direct appeal and affirmed the district court's determination that the loss of the defendant's "daily guidance would extraordinarily impact" his employees, unlike in other cases where "high-level business people" were sentenced. Id. at *8. However, the Second Circuit's decision to affirm the sentence in Milikowsky is inapposite to Movant's § 2255 ineffective of assistance of counsel claim. Regardless, for the reasons discussed above in Part III.A., Movant cannot establish prejudice.
Movant is not entitled to relief as to this issue.
Movant alleges in Issue Three that counsel was ineffective for "[f]ailing to present favorable computer forensic evidence that would have, inter alia, corroborated my claim that I did not know I was sharing files with the public and that I did not engage in a course of deleting illegal files from my computer." Doc. 23 at 5.
In support, Movant cites an email that counsel received from computer expert Greg Chatten stating "Based on the quantity of existing, shared files and those where a download was in progress[,] I would not say there was much effort put into deleting illegal material." Doc. 3-4 at 1. Movant alleges that this "clearly would have cut against the government's contention that he had possessed and deleted many more images that were on the computer when it was seized." Doc. 27 at 10. Movant avers that he is not challenging the sufficiency of the evidence or the misapplication of a Guideline. Id. He does not appear to dispute that his plea was knowing and voluntary. Id. at 11. Rather, as with the claim in Issue One, Movant contends that this information would have mitigated his degree of guilt at sentencing.
The record refutes Movant's claims that counsel was ineffective for failing to present favorable computer evidence at sentencing. First, to Movant's contention that he did not know about the file-sharing program, as detailed above, Movant admitted that he owned the computer on which he installed the Ares file-sharing software and that he used it to download child pornography and that "several videos depicting child pornography from a remote computer using a peer-to-peer file-sharing program" were on his computer. Crim. Doc. 44 at 7. Similarly, the offense conduct in the PSR states that Movant "acknowledged owning the computer on which he installed the Ares file-sharing software and that he used it to download child pornography," that his computer "was observed sharing several videos containing child pornography," and that an investigator "was able to obtain four video files from the suspect computer." Doc. 53 at 6. As explained above, Movant agreed to the factual basis of PSR, Abrica-Sanchez, 808 F.3d at 334. Movant's two- level distribution enhancement was based on: Movant's admissions that he installed the Ares file-sharing software; forensic evidence and admissions that Movant utilized the filesharing program to receive and view child pornography; and forensic evidence that Movant, via his computer, shared several videos containing child pornography. Any additional arguments, evidence, or presentations regarding Movant's computer skills would have been meritless or de minimus at best. Rodriguez, 17 F.3d at 226 (counsel's failure to advance a meritless argument cannot constitute ineffective assistance).
Second, as to Movant's contentions regarding the deletion of files, the record indicates that Movant agreed to facts in the PSR indicating that, during a post-Miranda interview, the investigator explained what Movant's IP address was and showed him a sheet of approximately 400 videos that he had viewed or downloaded since July 21, 2013. "The investigator went onto explain that he printed off the 400 but when he let it go up to 1,000 it listed them as well. The investigator advised that he stopped printing at 400 to save paper." Movant also admitted to downloading videos before he went to prison in 2010. Doc. 53 at 6. See Abrica-Sanchez, 808 F.3d at 334 ("[a] fact in a PSR to which the defendant has not specifically objected is a fact admitted by the defendant.").
Movant is not entitled to relief as to Issue Three.
Issue Four stems from counsel's "Motion for Downward Departure/Variance." Doc. 23 at 5; Crim. Doc. 58. Attachments to the motion presented in the criminal case included articles regarding sex offender sentencing and the low risk of recidivism for child pornography offenders. Relevant to this claim, also attached was an evaluation prepared by Dr. Londe. Crim. Doc. 59 at 55-71. Movant points out that the evaluation in part characterized him as being in the "Denier-Dissimulator child sexual abuse category" with an "Associated Probability" of 50 percent; the evaluation further stated that Movant was in the medium risk group of sexual recidivism because he had not completed a cognitive behavioral program; and the evaluation stated that Movant had a high "social desirability score," meaning that he was in the "high problematic range" for his unwillingness to admit a violation of common social mores. Crim. Doc. 59 at 57, 64, 66. However, the report also indicated, inter alia, that Movant "does not appear to have a serious persistent sexual addiction to child/adolescent pornography," and that Movant would be "an excellent candidate for outpatient treatment with the likelihood of reducing all recidivism risks." Crim. Doc. 59 at 66.
Defense counsel called Dr. Londe to testify at sentencing. Dr. Londe stated that he had treated Movant at least weekly for close to 12 months. Dr. Londe found a connection between Movant's alcoholism and the offense, noted that he had not committed any contact offenses against children, and stated that he was an excellent candidate for outpatient treatment. When Mr. Wampler asked whether Dr. Londe believed Movant would be "crime free or at least free from the addiction of child pornography," the doctor responded, "From the behavior I've seen from him in the year or so that I've worked with him, yes. He's very responsible in the position that he holds, spends a great deal of time with it." Doc. 64 at 24. Additionally, Dr. Londe testified that his assessment "does not indicate a danger of continued possession and distribution of child pornography" with continued treatment. Id. at 25. He further testified that Movant's prognosis is "excellent." Id.
On cross-examination, Dr. Londe acknowledged the "denier-dissimulator" finding, explaining that Movant was in the medium-risk group for abusing children if he is around them. Id. at 27. Dr. Londe additionally noted that Movant fell into the medium risk for sexual recidivism, and noted that Movant initially stated his problem started the prior year but that it became clear that the problem "extended further than that." Id. at 27-28. However, Dr. Londe also testified that if Movant still has a problem with child pornography, "I haven't seen it in the times that I have worked with him." Id. at 28.
Upon questioning by the Court, Dr. Londe stated that he had taken into account Movant's 2006 history of possessing child pornography and indicated that this was "something [the doctor] would certainly be concerned about to follow." Id. at 31-32.
After careful review, Movant's argument that his counsel was ineffective for submitting the doctor's report and for putting him on the stand fails. Although not every aspect of Dr. Londe's report and testimony was positive, the report and testimony in general were highly favorable. Regardless, it is well-established that strategic choices made after thorough investigation of law and facts relevant to plausible options are "virtually unchallengeable," Rodela-Aguilar v. United States, 596 F.3d 457, 464 (8th Cir. 2010). Additionally, for the reasons set forth above in Part III.A., Movant cannot establish prejudice.
Movant alleges in Issue Five that counsel was ineffective for failing to present statistics to the Court. Doc. 23 at 5. In support, Movant, who was sentenced to 180 months' incarceration, attaches analysis indicating that the median sentence imposed for defendants in Movant's situation nationwide result in 154.4 months and analysis indicating that the sentencing judge imposed a median sentence of 146 months in cases with similar charges.
The Supreme Court has rejected "the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence." Gall v. United States, 552 U.S. 38, 47 (2007). See also United States v. Hummingbird, 743 F.3d 636, 637 (8th Cir. 2014) (noting that a reviewing court can consider the extent of the deviation from the Guidelines but must also "give due deference to the district court's decision that the § 3553(a) factors, on a whole, justify the extent of the variance").
In this case, at sentencing the Court articulated sufficient reasons to support Movant's sentence. Additionally, for the reasons set forth above in Part III.A., Movant cannot show prejudice.
Movant alleges in Issue Six that counsel was ineffective for "inexplicably withdrawing all sentencing guideline objections, except for those relating to criminal history, at the time of sentencing." Doc. 23 at 5. Movant initially objected to the prepubescent, distribution, sadistic and computer enhancements, and to his criminal history score. Crim. Docs. 52, 53. At the sentencing hearing, Movant withdrew objections to the four enhancements, and the Court sustained his objection to the criminal history score.
Here again, the record establishes that Movant cannot meet his burden of showing unreasonable performance by counsel: as noted above, the PSR indicated that the § 2G2.2(b)(3)(F) distribution enhancement was supported by the factual basis as set out in the PSR, to which Movant agreed. Movant makes no argument concerning the applicability of the other three enhancements. Movant therefore has not shown a reasonable probability that his objections would have been sustained, resulting in a different base offense level, such that he would have received a different sentence. Apfel, 97 F.3d at 1076-77 (to obtain relief, a § 2255 movant must show there is a reasonable probability that if an objection had been made, it would have been sustained, and the result of the proceeding would have been different). Additionally, as set forth above in Part III.A., Movant cannot show prejudice.
Movant is not entitled to relief as to Issue Six.
In Issue Seven, Movant claims that counsel was ineffective for failing to file a notice of appeal, "although I told my mother to explicitly instruct him to do so." Doc. 23 at 5.
"An attorney's failure to file a notice of appeal upon the client's request constitutes ineffective assistance of counsel, and no specific showing of prejudice is required." United States v. Sellner, 733 F.3d 927, 930 (8th Cir. 2014). "When a district court receives conflicting statements — one from a § 2255 petitioner and one from her former counsel — the court cannot `mak[e] a factual determination based on the relative credibility of [these individuals] without the benefit of an evidentiary hearing.'" Witthar v. United States, 793 F.3d 920, 923 (8th Cir. 2015) (quoting Franco v. United States, 762 F.3d 761, 765 (8th Cir. 2014)). However, "for a petitioner to succeed, he must show that he made his desire to appeal evident to his attorney." Yodprasit v. United States, 294 F.3d 966, 969 (8th Cir. 2002). In other words, a movant "must show that [he] instructed [his] counsel to file an appeal." Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000). Further, "It is well established that, for an indigent defendant, the `right to be furnished counsel [for appeal] does not depend upon a request,' but the desire to appeal must be manifest." Barger, 204 F.3d at 1182 (citations omitted). "A bare assertion by the petitioner that she made a request is not by itself sufficient to support a grant of relief, if evidence that the fact-finder finds to be more credible indicates the contrary proposition." Id.
Movant's sentencing hearing was conducted on February 22, 2017. Crim. Doc. 64. At its conclusion, the Court instructed Movant that he had 14 days from the date of judgment to appeal his sentence or he would "forever lose your right to appeal." Id. at 46. The Court further informed Movant that if he wished to appeal, "Mr. Wampler or the clerk of the court can immediately file that notice of appeal on your behalf." Id.
Following sentencing, the following email chain transpired between Movant and/or his mother and defense counsel:
Docs. 3-8, 3-9 (non-substantive edits added for clarity).
On this record, the Court finds that Movant is not entitled to an evidentiary hearing as to Issue Seven. As noted above, the standard requires that a movant "must" show that he instructed counsel to file an appeal. Barger, 204 F.3d at 1182. Here, however, Movant's allegation is that counsel failed to file a notice of appeal after Movant instructed his mother to communicate that to counsel. Nowhere does Movant allege that he made such an instruction to counsel. For this reason alone, Movant has not established deficient performance. Id. Moreover, the uncontroverted record indicates that Movant was advised by the Court that he had a limited period of time to file a notice of appeal, and the Court additionally advised Movant on how to file a notice of appeal. The record further indicates that counsel communicated with Movant and/or to his mother to solicit Movant's wishes and that neither Movant nor his mother instructed counsel to file a notice of appeal; instead, Mr. Wampler's office was informed that another attorney was being consulted. Movant thus cannot meet his burden of establishing deficient performance.
Movant is not entitled to relief as to Issue Seven.
In Issue Eight, Movant claims that counsel was ineffective for "[f]ailing to consult with me directly, as opposed to providing conclusory and inaccurate information to my mother, and failing to speak to me directly to ascertain my wishes regarding my right to appeal." Doc. 23 at 5. The "inaccurate information" appears to refer to defense counsel's statement that Movant had 10 days rather than 14 days to file a notice of appeal and defense counsel's statement that "there are no grounds to appeal in my opinion." Docs. 3-8, 3-9.
In Issue Nine, Movant alleges that counsel was ineffective for
Doc. 23 at 5.
Where a defendant has not specifically requested an appeal, the reasonableness of counsel's conduct is judged by whether counsel had a duty to "consult" about the possibility of an appeal. Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000). "[C]ounsel has a constitutionally imposed duty to consult . . . when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." 528 U.S. at 480. In making this determination, courts must consider all of the information counsel knew or should have known; in other words, courts consider the totality of the circumstances. Id. One "highly relevant factor" is whether the conviction follows a trial or a guilty plea, because a plea "reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to the judicial proceedings." Id. "[T]o show prejudice in these circumstances, a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 484. In other words, "[c]ounsel's deficient performance must actually cause the forfeiture of the defendant's appeal. If the defendant cannot demonstrate that, but for deficient performance, he would have appealed, counsel's deficient performance has not deprived him of anything, and he is not entitled to relief." Id.
Here, in reviewing the totality of the circumstances, the Court finds that Movant has not met his burden of establishing the counsel was deficient regarding counsel's alleged failure to consult with Movant about the possibility of an appeal and to appeal certain issues. As an initial matter, there is no reason to believe that a rational defendant would want to appeal this proceeding after entering a plea of guilty and after having received a sentence that was significantly below the Guidelines. Further, there is no indication that Movant "reasonably demonstrated to counsel that he was interested in appealing" inasmuch as counsel communicated with Movant and/or his mother about the possibility of appealing, and counsel was not provided a reason to believe he needed to assist in filing a notice of appeal. To the contrary, counsel's office was told that another attorney was looking into it. The determination that counsel was not deficient is supported by the fact that the Court advised Movant of his right to file a notice of appeal, how to file the notice, and the correct deadline for doing so. See Roe, 528 U.S. at 480 (a sentencing court's instructions to a defendant about his appeal rights can be so clear and informative as to substitute for counsel's duty to consult such that counsel might reasonably decide he need not repeat the information).
Further, because Movant cannot demonstrate a reasonable probability that he would have timely appealed but for counsel's failure to consult with him, he cannot show prejudice. Id. at 484. As noted above, the email communications indicate that Movant and/or his mother was consulting with another attorney about the possibility of filing an appeal, and the record at sentencing definitively indicates that Movant was aware of the deadline and how to file a notice of appeal. Movant thus cannot show that he would have timely appealed but for his counsel's failure to consult with him.
Issues Eight and Nine are without merit.
In Issues Ten and Eleven, Movant argues that he is entitled to relief based on counsel's performance as to "all aspects . . . with all stages of the case" and the "aggregate effect" of the alleged ineffectiveness. Doc. 23 at 5. After review of the record, not only does the Court detect no ineffective assistance of counsel as to any of Movant's individual claims, but also Eighth Circuit precedent forecloses argument based on cumulative effect. Cole v. Roper, 623 F.3d 1183, 1196 (8th Cir. 2010) (citing Hall v. Luebbers, 296 F.3d 685, 692-93 (8th Cir. 2002).
Issues Ten and Eleven are without merit.
Because the Court finds Movant has failed to demonstrate that a fundamental defect occurred that resulted in a complete miscarriage of justice, and his contentions are contrary to the record and without merit, Movant's motion to vacate his sentence is denied. Additionally, since the motions, files, and records conclusively show Movant is not entitled to relief, Movant's request for an evidentiary hearing is denied. See Roundtree v. United States, 751 F.3d 923, 925 (8th Cir. 2014) ("A Section 2255 movant is entitled to an evidentiary hearing . . . unless the motion, files, and record conclusively show he is not entitled to relief.").
Additionally, pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must issue or deny a certificate of appealability when it enters a final order adverse to Movant. A certificate of appealability may be issued "only if [Movant] has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Because Movant has made no such showing, the Court declines to issue a certificate of appealability.
For the foregoing reasons, Movant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is DENIED, a certificate of appealability is DENIED, and this case is DISMISSED.
"Cause" under the cause and prejudice test "must be something external to the [movant], something that cannot fairly be attributed to him," for example, a showing that the factual or legal basis for a claim was not reasonably available, or that some interference by officials made compliance with the procedural rule impracticable. Stanley v. Lockhart, 941 F.2d 707, 709 (8th Cir. 1991) (citing Coleman v. Thompson, 501 U.S. 722 (1991)); see also Greer v. Minnesota, 493 F.3d 952, 957-58 (8th Cir. 2007). To establish "actual prejudice," a petitioner must demonstrate that the claimed errors "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982).
Here, Movant does not claim actual innocence and does not appear to seek review of his allegations under the standard of cause and actual prejudice. Nevertheless, Movant cannot show prejudice (or actual prejudice) and therefore any such claim is procedurally barred.