MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Steven Miles Sullivan (Sullivan) has filed a Motion to Vacate under 28 U.S.C. § 2255. After initial review,1 I deny portions of the motion and dismiss those portions with prejudice. I will withhold judgment. However, the claims that allege ineffective assistance of counsel survive initial review.

For the ineffective assistance of counsel claims, I will appoint counsel, require the government to answer, and refer this matter to Magistrate Judge Zwart for further proceedings including findings and recommendations.

I. BACKGROUND

After police seized powder containing 4-methylmethcathinone (mephedrone) from a vehicle he was driving during a traffic stop, the government charged Sullivan with possession with intent to distribute a controlled substance analogue.

The case against Sullivan at trial appeared to be strong, despite his claims to the contrary. In a car owned by someone else that Sullivan was driving, alone and without a driver's license, he had just under a pound of a controlled substance analogue called mephedrone, small plastic bags and almost $6,000 in cash folded over and rubber banded in bundles as opposed to being placed in a bank bag. There is no doubt that Sullivan actually possessed the controlled substance analogue as it is undisputed that he told the officer that he had "bath salts" in the vehicle.

Although Sullivan elected not to testify or call witnesses, he put the matter before a jury, and a jury found him guilty. He appealed claiming that (1) the evidence was insufficient to prove that he knew the powder was a controlled substance analogue and (2) the evidence was insufficient to prove he intended the powder for human consumption. The Court of Appeals rejected these arguments and affirmed. United States v. Sullivan, 714 F.3d 1104 (8th Cir. 2013).

Sullivan did not seek review before the Supreme Court. He filed his Motion to Vacate (filing no. 113) on May 5, 2014. Sullivan's motion is timely.

In a brief (filing no. 114), rather than in his motion, Sullivan raises 16 grounds for relief. They are:

INDEX OF GROUNDS

(Filing no. 114 at CM/ECF pp. 47-48.)

II. ANALYSIS

Except for the ineffective assistance of counsel claims, all of Sullivan's other claims (1) were raised on appeal, rejected by the Court of Appeals and as a result cannot be litigated again here, see, e.g., Davis v. United States, 673 F.3d 849, 852 (8th Cir.2012) ("claims that were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255.") (internal citation omitted); or (2) could have been raised on direct appeal, but were not, and as a consequence are barred from consideration in this action as I explicitly find and conclude that Sullivan is not actually innocent2 and he has failed to show cause for the procedural default. See, e.g., Meeks v. United States, 742 F.3d 841, 844 (8th Cir. 2014) ("A § 2255 petition is not a second direct appeal and issues raised for the first time in a § 2255 petition are procedurally defaulted.").

I therefore dismiss with prejudice claims 1, 2, 3, 5, 6, 10, 11, 13, 14, and 15. I next turn to the ineffective assistance of counsel claims.

A. Ineffective Assistance of Counsel Claims

The ineffective assistance of counsel claims are 4, 7, 8, 9, 12, and 16. Sullivan was represented at trial by Mr. Glenn A. Shapiro of Omaha, Nebraska. Shapiro was retained. Mr. Daniel Lynn Viets from Columbia, Missouri, represented Sullivan on appeal. Viets appears to have been retained as well.

B. Standard

The Strickland standard must be applied to Sullivan's ineffective assistance of counsel claims. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (announcing principles for evaluation of claims of ineffective assistance of counsel under the Sixth Amendment). In order to prevail on a claim that defense counsel rendered ineffective assistance of counsel under Strickland, the claimant must establish two things. He or she must establish (1) that "`counsel's representation fell below an objective standard of reasonableness,'"3 and (2) that "`there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"4 Nguyen v. United States, 114 F.3d 699, 703-04 (8th Cir. 1997) (quoting Strickland, 466 U.S. at 688, 694).

An evidentiary hearing is unnecessary if the claimant makes an insufficient preliminary showing on either or both prongs or the record clearly contradicts the claimant's showing on either or both prongs. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995) (affirming denial of § 2255 motion without a hearing in the face of an ineffective-assistance-of-counsel claim; stating that no evidentiary hearing is required where "(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").

C. Claims Eight and Nine

While all of the ineffective assistance of counsel claims will require more scrutiny by Judge Zwart, two of them are especially troubling. I therefore highlight those two claims while stressing again that all ineffective assistance of counsel claims will require further scrutiny.

Sullivan defended the case partially on the claim that he did not know that he was in possession of a controlled substance analogue and partially because he did not intend the powder for human consumption. However, as stressed by the Court of Appeals, Sullivan allegedly made an admission about the illegality of the substance and the Court of Appeals found this highly significant:

United States v. Sullivan, 714 F.3d at 1107-1108 (italics supplied by Kopf).

What the Court of Appeals did not know, and what the jury did not know, is that Parsons gave radically inconsistent testimony when he testified at a suppression hearing before Judge Zwart. In particular, Parsons did not say that Sullivan knew that bath powder was illegal. Here is pertinent testimony from the suppression hearing:

(Filing no. 37 at CM/ECF p. 30.) (Italics supplied by Kopf.)

In claim eight, Sullivan argues that Shapiro should have impeached Parsons based upon the prior inconsistent sworn testimony Parsons gave at the suppression hearing.5 Sullivan may well have a point.

The question of whether Sullivan knew that "bath salts" were illegal is closely related, as the Court of Appeals emphasized, to whether Sullivan knew he was in possession of a controlled substance analogue rather than mere bath powder and whether he intended the analogue for human consumption, elements of the offense. Thus, the failure to impeach Parsons on this seemingly pivotal question would, at this point, seem to go far toward establishing both prongs of Strickland. See, e.g., Steinkuehler v. Meschner, 176 F.3d 441, 444-446 (8th Cir. 1999) (defendant was prejudiced by trial counsel's deficient performance in failing to cross-examine sheriff as to evidence that sheriff pressured jailer supervisor to "forget" defendant's condition following shooting and sheriff's purported practice of "forgetting" facts favoring defendants, inasmuch as defendant faced first-degree murder conviction unless he could convince jury that he was intoxicated when he shot victim and destroying sheriff's credibility would have placed into question the veracity of only witness who testified that defendant was not intoxicated.).

But, whether Shapiro had a tactical reason for not impeaching Parsons is unknown and whether the impeachment would have made a difference in the outcome is not entirely clear. Thus, these and other issues will need to be addressed by Judge Zwart.

In claim nine, Sullivan attacks his appellate lawyer for failing to raise this impeachment point on direct appeal. Sullivan has presented as a part of his section 2255 motion a letter to appellate counsel (filing no. 114 at CM/ECF pp. 87-88) clearly apprising appellate counsel of this question and the importance of the inconsistency, although the notice may have been given after the reply brief was filed. Since the fact of the inconsistency was in a developed record (the transcript of trial and the transcript of the suppression hearing) at the time of the appeal, since Sullivan brought the matter to appellate counsel's attention (although apparently after the reply brief was filed) and since the Court of Appeals found that Sullivan's alleged admission to be very important, presumably not knowing that Parsons gave far different testimony at the suppression hearing, claim nine requires further scrutiny.

IT IS ORDERED that: