1:02-cr-00060 | N.D. Iowa | Mar 28, 2008
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
UNITED STATES OF AMERICA,
Plaintiff, No. CR02-0060-LRR
No. C05-0009-LRR
vs.
ORDER
CURTIS SWAYZE,
Defendant.
____________________________
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. RELEVANT BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 . . . . 15
B. Standards Applicable to Sixth Amendment . . . . . . . . . . . . . . . . . 17
IV. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Review of Motion for Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B. Review of Motion to Amend . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
C. Review of Motion for an Evidentiary Hearing . . . . . . . . . . . . . . 21
D. Review of Ineffective Assistance of Counsel Claims . . . . . . . . . . . 22
1. Ineffective Assistance of Trial Counsel . . . . . . . . . . . . . . . 22
2. Ineffective Assistance of Appellate Counsel: Improper
Admission of a Laboratory Report . . . . . . . . . . . . . . . . . . 27
3. Ineffective Assistance of Appellate Counsel:
Inadequate Representation during Plea Negotiations by Trial
Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
E. Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
I. INTRODUCTION
This matter comes before the court on the defendant’s motion to vacate, set aside
or correct his sentence (docket no. 105). The defendant filed such motion pursuant to 28
U.S.C. § 2255.1 Also before the court is the defendant’s motion for an evidentiary hearing
(docket no. 106), motion to amend (docket no. 113) and motion for ruling (docket no.
121). For the following reasons, the defendant’s motion for ruling shall be granted, and
the defendant’s motion to amend, motion for an evidentiary hearing and motion pursuant
to 28 U.S.C. § 2255 shall be denied. A certificate of appealability also shall be denied.
II. RELEVANT BACKGROUND
On April 10, 1977, the defendant committed burglary of a storehouse in
Mississippi. On April 20, 1977, the defendant escaped from custody and committed armed
robbery in Mississippi. On April 21, 1977, the defendant pled guilty to burglary and
armed robbery. On the same date, the defendant received a 4-year sentence for the
burglary conviction and a 10-year sentence for the armed robbery conviction. The
Mississippi state court ordered those sentences to run concurrently. On December 2,
1986, the defendant discharged his sentence. Officials released the defendant the same
date.
1
If a prisoner is in custody pursuant to a sentence imposed by a federal court and
such prisoner claims “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, [the prisoner] may move the court which imposed
the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255; see also
Daniels v. United States, 532 U.S. 374" date_filed="2001-04-25" court="SCOTUS" case_name="Daniels v. United States">532 U.S. 374, 377, 121 S. Ct. 1578, 149 L. Ed. 2d 590 (2001).
2
In 1987, the defendant committed armed robbery. The defendant subsequently pled
guilty to armed robbery in a Louisiana state court, and the defendant received a 99-year
sentence of hard labor without the benefit of parole, probation or suspension of his
sentence. Following an appeal and reversal of his conviction, the Louisiana state court
resentenced the defendant to a 25-year sentence. See State v. Swayze, 554, So.2d 249 (La.
App. 1989). On July 29, 2001, officials paroled the defendant.
On April 12, 2002, the government made an inquiry that revealed information
pertaining to the Mississippi convictions and the Louisiana conviction. Specifically, the
government learned that the defendant received a 4-year sentence for the 1977 burglary
conviction in Mississippi, a 10-year sentence for the 1977 armed robbery conviction in
Mississippi and a 99-year sentence for the 1988 armed robbery conviction in Louisiana.
The April 12, 2002 inquiry did not provide any release dates.
On or about June 25, 2002, the Circuit Clerk of the State of Mississippi provided
the government with certified copies of the charges, the pleas and the sentences that pertain
to the defendant’s Mississippi convictions.
On August 21, 2002, the grand jury returned and the government filed a two-count
indictment against the defendant. Such indictment charged the defendant with controlled
substance offenses that occurred on December 20, 2001. Specifically, count 1 charged that
the defendant did knowingly and intentionally possess with intent to distribute
approximately 10.72 grams of a mixture or substance containing a detectable amount of
cocaine base, commonly known as “crack” cocaine, a Schedule II controlled substance.2
And, count 2 charged that the defendant did knowingly and intentionally possess with
2
The conduct charged in count 1 of the indictment is in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 841(b)(1)(B).
3
intent to distribute approximately 2.03 grams of a mixture or substance containing a
detectable amount of cocaine, a Schedule II controlled substance.3 On October 3, 2002,
the court appointed Assistant Federal Public Defender JoAnne M. Lilledahl to represent
the defendant.4
On October 1, 2002, the government sent a letter to the defendant. The letter notes
that, pursuant to Federal Rule of Criminal Procedure 16, the government deemed it
appropriate to provide the defendant copies of the defendant’s criminal record, certified
felony convictions and a laboratory report. The copies of the defendant’s criminal record
and certified felony convictions contained information about the defendant’s 1977 burglary
conviction in Mississippi, 1977 armed robbery conviction in Mississippi and 1988 armed
robbery conviction in Louisiana.
Along with the letter and copies, the government enclosed a proposed plea
agreement. In exchange for pleading guilty to count 1 of the indictment, the government
offered to dismiss count 2 of the indictment. The plea agreement informed the defendant
that pleading guilty to count 1 subjected him to at least 5 years and up to 40 years
imprisonment, and it required the defendant to stipulate to specific facts. The plea
agreement also included several stipulations regarding the drug quantity sentencing
guidelines, the acceptance of responsibility sentencing guidelines and the career offender
sentencing guidelines. Concerning the career offender guidelines, the plea agreement
provided:
3
The conduct charged in count 2 of the indictment is in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 841(b)(1)(C).
4
Ms. Lilledahl represented the defendant from October 3, 2002 to January 22,
2003.
4
The parties stipulate and agree that defendant qualifies as a
“career offender,” as that term is defined in the U.S.
Sentencing Guidelines. As such, the defendant will be subject
to enhanced imprisonment. A person is a “career offender”
under USSG [§4B1.1] if: (1) defendant was at least eighteen
years old at the time of the present offense, (2) the present
offense is a felony that is either a crime of violence or a
controlled substance offense, and (3) defendant has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense.
Defendant stipulates and agrees that he has two qualifying
crimes of violence, specifically, defendant was convicted of:
(1) Burglary of a Storehouse on April 10, 1977, in the Adams
County Circuit Court of Mississippi, and (2) three counts of
Armed Robbery on February 2, 1988, in the Seventh Judicial
District Court of, Parish of Concordia, Louisiana.
An additional inquiry made on October 16, 2002 revealed essentially the same
information pertaining to the Mississippi convictions and the Louisiana conviction, that is,
the criminal history report indicated that the defendant received a 4-year sentence for the
1977 burglary conviction in Mississippi, a 10-year sentence for the 1977 armed robbery
conviction in Mississippi, a 99-year sentence for the 1988 armed robbery conviction in
Louisiana and no release dates for any of the convictions. It did not indicate that the
defendant ultimately received a 25-year sentence for the 1988 armed robbery conviction
in Louisiana. On November 1, 2002, the government sent the defendant a letter and a
copy of the defendant’s criminal history report.
On December 10, 2002, the defendant filed a motion to suppress. On December
16, 2002, Ms. Lilledahl wrote to the government to propose a counter-offer to the
proposed plea agreement. In her letter, she stated the following:
As you know, Mr. Swayze is on parole from the state of
Louisiana. If his parole is revoked, he is facing a [12.5-year]
5
sentence in Louisiana. As we have discussed, Mr. Swayze is
quite concerned about having to serve a federal sentence and
then a consecutive state sentence. He is willing to plead guilty
to the powder cocaine charge and stipulate that he violated the
conditions of his parole if he can go directly to Louisiana and
serve his sentence there. Because he is a career offender, he
is looking at a [12.5-year] sentence both federally and in
Louisiana. Essentially he would serve his sentence in a
Louisiana state facility rather than a federal facility. By doing
this, however, he would be assured that he would not be facing
a consecutive [12.5-year] sentence after serving his federal
sentence.
On December 23, 2002, Ms. Lilledahl wrote again to propose a counter-offer to the
proposed plea agreement. In her letter, she stated the following:
As we have discussed, Mr. Swayze is on parole from the state
of Louisiana. We have now confirmed with Greg Smith, who
is in charge of the interstate compact for the Louisiana Parole
Board that if Mr. Swayze is convicted in federal court the state
of Louisiana will place a detainer on him while he is in the
Bureau of Prisons. Once his federal time has been completed,
Mr. Swayze will be transferred back to the state of Louisiana
to serve his state sentence. Mr. Smith tells us there are no
exceptions to this policy. Therefore, if Mr. Swayze is
convicted in federal court and then his parole is revoked, he
will be facing a [25-year] sentence between the federal
sentence and the Louisiana sentence.
As we have discussed, Mr. Swayze is quite concerned about
having to serve a federal sentence and then a consecutive state
sentence. He is willing to plead guilty to the powder cocaine
charge and stipulate that he violated the conditions of his
parole if he can go directly to Louisiana and serve his sentence
there. Because he is a career offender, he is looking at a
[12.5-year] sentence both federally and in Louisiana.
Essentially he would serve his sentence in a Louisiana state
facility rather than a federal facility. By doing this, however,
6
he would be assured that he would not be facing a consecutive
12.5 year sentence after serving his federal sentence.
On December 30, 2002, the court held a hearing on the defendant’s motion to suppress.
On January 3, 2003, the court denied the defendant’s motion to suppress. The defendant
rejected the government’s proposed plea agreement,5 and the government rejected the
defendant’s proposed counter-offer.6
On January 7, 2003, the defendant’s jury trial commenced. On January 8, 2003,
the jury found the defendant guilty of both counts contained in the indictment.7
On January 15, 2003, the defendant filed a motion for a new trial and a motion for
judgment of acquittal. In both motions, the defendant argued that no direct evidence
5
Under the government’s proposed plea agreement, the defendant would have pled
guilty to count 1 and stipulated to being a career offender. Pursuant to USSG §4B1.1, the
applicable offense level would have been 34. After making an adjustment from USSG
§3E1.1, the defendant’s total offense level would have been 31. Pursuant to USSG
§4B1.1, the defendant’s criminal history category would have been VI. Given a total
offense level of 31 and a criminal history category of VI, the sentencing range would have
been 188 to 235 months imprisonment.
6
Under the defendant’s proposed counter-offer, the defendant would have pled
guilty to count 2 and stipulated to being a career offender. Pursuant to USSG §4B1.1, the
applicable offense level would have been 29. After making an adjustment from USSG
§3E1.1, the defendant’s total offense level would have been 26. Pursuant to USSG
§4B1.1, the defendant’s criminal history category would have been VI. Given a total
offense level of 26 and a criminal history category of VI, the sentencing range would have
been 120 to 150 months imprisonment.
7
The government’s resistance contains a detailed and accurate statement of the
evidence and testimony that the jury considered during the defendant’s trial. In addition,
the court thoroughly discussed the facts in its order dated November 18, 2003. See United
States v. Swayze, 2003 U.S. Dist. LEXIS 20974, 2003 WL 22741007 (N.D. Iowa 2003).
Rather than restate the facts or the evidence and testimony in this order, the court deems
it appropriate to rely on the government’s resistance and its prior order.
7
connected him to the cocaine that officers discovered in the toilet of a public bathroom.
On January 22, 2003, Alfred E. Willett filed an appearance on behalf of the defendant.8
On January 23, 2003, the government resisted the defendant’s motion for a new trial and
motion for judgment of acquittal. On February 20, 2003, officials revoked the defendant’s
parole and ordered him to serve the remainder of his Louisiana sentence because he
committed the offenses contained in the indictment while on parole. On July 28, 2003, the
court denied the defendant’s motion for a new trial and motion for judgment of acquittal.
On August 12, 2003, the government filed a sentencing memorandum in response
to the pre-sentence investigation report that probation filed on June 25, 2003. In its
sentencing memorandum, the government, among other things, notified the court that it
believed the court should utilize criminal history category VI, rather than criminal history
category III, because the defendant’s assessed criminal history did not accurately reflect
his criminal conduct over the last 25-years and a high likelihood of recidivism existed.9
To support its position, the government relied on USSG §4A1.3 and USSG §5K2.0. On
September 18, 2003, the defendant filed a sentencing memorandum. Such memorandum
resisted the government’s request for an upward departure based on understated criminal
history.
On the same date, the defendant filed a second motion for a new trial. In such
motion, the defendant argued newly discovered polygraph results showed one of his
witnesses testified truthfully, one of the government’s witnesses did not testify truthfully
and, without the testimony of the government’s witness, he would have been acquitted.
8
Mr. Willett represented the defendant from January 22, 2003 through the
defendant’s direct appeal.
9
Based on a total offense level of 26 and a criminal history category of VI, the
applicable guideline range would be 120 to 150 months imprisonment.
8
On September 22, 2003, probation filed another pre-sentence investigation report. On
September 24, 2003, the government resisted the defendant’s second motion for a new
trial. On September 25, 2003, the court held a hearing on the defendant’s second motion
for a new trial. On November 12, 2003, the defendant filed a supplemental sentencing
memorandum. On November 19, 2003, the court denied the defendant’s second motion
for a new trial.
On November 19, 2003, the court held a sentencing hearing. At such hearing,
neither party objected to the total offense level or the criminal history category that
probation calculated,10 and the parties only argued whether the court should grant a
departure. With respect to the government’s request for an upward departure based on
understated criminal history, the government argued:
United States Sentencing Guideline 4A1.3 provides that if the
criminal history category does not adequately represent the
criminal history of the defendant, then the court has the
authority to depart. Also, under 5K2.0, you have the authority
to depart when the case is outside the heartland of cases. First
of all, we would rely on the case United States v.
Chesborough, which is a 2003 Eighth Circuit case. The court
there stated that “We have previously held convictions
excluded from a defendant’s criminal history score because of
their age may be the basis of an upward departure based on
understatement of criminal history.” In this case, we believe
that the court should depart upward for the two convictions
that were not counted due to their age. In this case, [a 1977
10
The pre-sentence investigation report determined that a total offense level of 26
and a criminal history category of III applied to the defendant, and, therefore, the
applicable guideline range would be 78 to 97 months imprisonment. Under USSG
§4A1.2(e), the pre-sentence investigation report did not assess any criminal history points
for the 1977 burglary conviction and 1977 armed robbery conviction because the defendant
was not incarcerated during the applicable 15-year period.
9
burglary conviction and a 1977 armed robbery conviction were
not counted] because they were—the defendant was released
from prison [15-years] and [18-days] prior to the instant
offense. He was released on December 2 of 1986, and the
instant offense occurred on December 20 of 2001. Therefore,
the difference in his sentencing range is between 184 and
230[11] months just based on the fact that he was in prison
eight days—eighteen days, excuse me, longer than the
guidelines provide—we believe that the commission did not
intend for such a result. It’s just a huge discrepancy—[. . .]
In response, the defendant argued:
Mr. Swayze is looking at 78 to 97 months based upon the
current guideline range. [. . .] Now then, from other
sentencings I have had with this court, you realize one thing
based upon Eighth Circuit law, any sentence this court imposes
will be imposed consecutively to his state of Louisiana parole
revocation. 78 to 97 months in and of itself—whatever the
court imposes within that range will be imposed consecutive to
a [12.5-year] sentence. I do not believe there’s a likelihood of
recidivism. Mr. Swayze is slightly younger man than myself,
but suffice it to say, he will be a man in his middle-aged years
when he is released from his federal and state sentences, and
I think the likelihood of recidivism, at least my opinion is, is
there is none.
Now, then, what this boils down to, I believe, quite frankly,
is the fact that, my understanding of the history of this case
from speaking with my client, from speaking with Assistant
Federal Defender Lilledahl, is that there was always a belief
that my client was a career offender. That may in part have
driven my client’s decision to litigate this matter as opposed to
11
The difference between 262 to 327 months imprisonment, that is, total offense
level 26 and criminal history category VI, and 78 to 97 months imprisonment, that is, total
offense level 26 and criminal history category III, is 184 to 230 months imprisonment.
10
resolve it with plea negotiations, but there was always a belief
that he was.
After the verdict, there’s a realization or a learning, if you
will, that my client’s not a career offender. And as Ms.
Baumann points out, he’s not a career offender by eighteen
days. This is the government’s method to get back to that.
[. . .] I want to point out two things for the record, Your
Honor. I want to point out clearly that [the 1977 burglary
conviction and the 1977 armed robbery conviction] are beyond
the [15]-year time period that the court would utilize to count
prior offenses. Now, then, Ms. Baumann cites the
Chesborough case that we can do this. The other thing I want
to point out to the court is Ms. Baumann takes exception, I
believe, to [other conduct that did not get included when
calculating the defendant’s criminal history]. Now, I think
the—not only 4A1.3, but the guide—but the Eighth Circuit
case law is very clear, that you cannot use an arrest record to
bootstrap up, if you will, a motion for upward departure, and
I would ask the court respectfully to not consider [that
conduct].
Judge, [. . .] the government thought he was a career offender.
He’s not. Now they want to use two [15]-year-old-plus
convictions, when this man was eighteen and a drug addict, to
get there, based upon the fact that, you know, he has this
likelihood of recidivism. I would respectfully suggest the state
of Louisiana’s sentence that this man must serve is going to
mitigate against any need for the court to depart upward. A 78
to 97 month sentence in and of itself is a significant sentence,
especially when in the federal system he must serve 85 percent
of that time. When you couple that with the idea that Mr.
Swayze will serve that Louisiana sentence, at least in my mind,
Your Honor, I don’t see the court’s need to depart upward. [.
. .] If this court disagrees with me and says, “Mr. Willett, I’m
going to depart upward,” I think the appropriate ceiling is a
criminal history category five, not a six, not 120 to 150
months, but rather, 110 to 137 months.
11
The court denied the government’s request for an upward departure and indicated that it
would take into consideration all of the facts and circumstances, including the defendant’s
criminal history, when sentencing the defendant within the applicable guideline range.
During his allocution, the defendant stated: “I still maintain that I’m innocent, Judge, but
I don’t hold a grudge. I feel like I’ll still be vindicated someday.” The court sentenced
the defendant to 97 months imprisonment (97 month term on each count and terms to run
concurrently) and 4 years supervised release (4 years on count 1, 3 years on count 2 and
terms to run concurrently).12 The court ordered the defendant’s sentences to run
consecutively to the undischarged state term of imprisonment imposed in Louisiana.13 On
November 19, 2003, judgment entered against the defendant.
On November 24, 2003, the defendant filed an appeal. On appeal, the defendant
challenged the sufficiency of the evidence to support his convictions and the decision not
to grant a new trial based on newly discovered polygraph results that showed one of his
witnesses testified truthfully. On July 26, 2004, the Eighth Circuit Court of Appeals
affirmed the defendant’s convictions and resulting sentence. See United States v. Swayze,
378 F.3d 834" date_filed="2004-07-26" court="8th Cir." case_name="United States v. Curtis Swayze">378 F.3d 834 (8th Cir. 2004).
12
The court sentenced the defendant based on a total offense level of 26 and a
criminal history category of III. Before reaching the total offense level of 26, the court
determined: 1) the base offense level should be 26 pursuant to USSG §2D1.1; and 2) no
adjustments should be made to the base offense level. Utilizing USSG §4A1.1, the court
determined the defendant’s criminal history category to be III. The defendant’s total
offense level and criminal history category established a guideline range of 78 to 97
months imprisonment.
13
The defendant acknowledged, in his sentencing memorandum and at the
sentencing hearing, that, under USSG §5G1.3, his sentence should run consecutively to
the prior undischarged term of imprisonment. See United States v. Caldwell, 339 F.3d
680, 681 (8th Cir. 2003).
12
On January 12, 2005, the defendant filed the instant motion pursuant to 28 U.S.C.
§ 2255 and motion for an evidentiary hearing. In his 28 U.S.C. § 2255 motion, the
defendant challenges his conviction and resulting sentence on two grounds. Specifically,
the defendant asserts: 1) his trial counsel and appellate counsel provided ineffective
assistance in violation of the Sixth Amendment; and 2) his sentence is in violation of the
Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296" date_filed="2004-06-24" court="SCOTUS" case_name="Blakely v. Washington">542 U.S. 296, 124 S. Ct. 2531, 159
L. Ed. 2d 403 (2004). With respect to the former assertion, the defendant argues: 1) trial
counsel provided ineffective assistance during plea negotiations; 2) appellate counsel
provided ineffective assistance when he failed to assert improper admission of a laboratory
report; and 3) appellate counsel provided ineffective assistance when he failed to assert
trial counsel provided inadequate representation during plea negotiations. On April 27,
2005, the court conducted a preliminary review of the defendant’s 28 U.S.C. § 2255
motion pursuant to Rule 4 of the Rules Governing 2255 Proceedings, dismissed the
defendant’s claim which relied on Blakely v. Washington14 and ordered the government to
14
The court noted in its April 27, 2005 order that the Eighth Circuit Court of
Appeals had not addressed the impact of United States v. Booker, 543 U.S. 220" date_filed="2004-10-01" court="SCOTUS" case_name="United States v. Booker">543 U.S. 220, 125 S.
Ct. 738, 160 L. Ed. 2d 621" date_filed="2004-10-01" court="SCOTUS" case_name="United States v. Booker">160 L. Ed. 2d 621 (2005). The Eighth Circuit Court of Appeals, however, has
now determined “the ‘new rule’ announced in Booker does not apply to criminal
convictions that became final before the rule was announced, and thus does not benefit
[defendants] in collateral proceedings.” Never Misses A Shot v. United States, 413 F.3d
781, 783-84 (8th Cir. 2005). Moreover, when the court utilized USSG §4A1.1(d) to add
two points and USSG §4A1.1(e) to add one point to the defendant’s criminal history
category, no unlawful enhancement occurred. See Booker, 543 U.S. 220" date_filed="2004-10-01" court="SCOTUS" case_name="United States v. Booker">543 U.S. at 244-45, 125 S. Ct.
at 756, 160 L. Ed. 2d 621" date_filed="2004-10-01" court="SCOTUS" case_name="United States v. Booker">160 L. Ed. 2d at 650 (concluding the Sixth Amendment is violated by the
imposition of an enhanced sentence under the United States Sentencing Guidelines based
on the sentencing judge’s determination of a fact (other than a prior conviction) that was
not found by the jury or admitted by the defendant) (applying its decisions in Apprendi v.
New Jersey, 530 U.S. 466" date_filed="2000-06-26" court="SCOTUS" case_name="Apprendi v. New Jersey">530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v.
(continued...)
13
respond to the claim which asserted counsel provided ineffective assistance. On May 31,
2005, the government filed a resistance to the defendant’s 28 U.S.C. § 2255 motion. On
June 13, 2005, the defendant filed a reply to the government’s resistance.
On November 25, 2005, the defendant filed the instant motion to amend. In such
motion, the defendant raises another claim regarding ineffective assistance of counsel.
Specifically, he contends that trial counsel did not properly admit into evidence a police
report, and, consequently, the jury could not review it while deliberating. He also asks
the court to compel production of particular documents, including grand jury materials,
a police report and the complaint and report completed by an officer. The government did
not resist the motion to amend, and the court did not order the government to file a
resistance.
On May 15, 2006, the court entered an order that directed the government to
expand the record, that is, submit additional materials relating to the action or steps that
Ms. Lilledahl took to determine whether the defendant’s prior convictions met the
requirements of USSG §4A1.2(e) and/or the requirements of USSG §4B1.1. On May 31,
2006, the government responded by submitting the October 1, 2002 letter and November
1, 2002 letter that it sent to the defendant. On June 8, 2006, the court clarified its order
dated May 15, 2006 and directed the government to respond. On June 15, 2006, the
government complied with the court’s order and submitted an affidavit by Ms. Lilledahl.
Such affidavit, among other things, outlines the steps that she took to determine whether
the defendant’s prior felony convictions met the requirements of USSG §4A1.2(e) and the
requirements of USSG §4B1.1. Specifically, the affidavit, in pertinent part, states:
14
(...continued)
Washington, 542 U.S. 296" date_filed="2004-06-24" court="SCOTUS" case_name="Blakely v. Washington">542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), to the Federal
Sentencing Guidelines).
14
(1) In my representation of Mr. Swayze, I reviewed his
discovery file numerous times. I reviewed Mr. Swayze’s
criminal history printouts and the certified copies of his prior
felony convictions, including those associated with his 1977
Burglary of a Storehouse conviction, his 1977 Armed Robbery
conviction, and his [1988] Armed Robbery conviction. The
government sent me these documents, which I reviewed
personally and with Mr. Swayze. My investigator also met
with Mr. Swayze.
(2) I also spoke with Mr. Swayze regarding these convictions.
It was my understanding, after speaking with Mr. Swayze, that
he had served nearly the entire ten year sentence which he
received for the 1977 Armed Robbery conviction. Because of
this, and the records I had reviewed, it was my understanding
Mr. Swayze was a career offender, as both his 1977 Armed
Robbery conviction and his [1988] Armed Robbery conviction
met both the definition of a “crime of violence” under United
States Sentencing Guideline §4B1.2 and were within the time
limits of United States Sentencing Guideline §4A1.2(e).
On June 16, 2006 and June 29, 2006, the defendant responded to the additional
information provided by the government on May 31, 2006 and June 15, 2006.
On March 10, 2008, the defendant filed the instant motion for ruling on his 28
U.S.C. § 2255 motion. In such motion, he complains about the delay in addressing his
motion under 28 U.S.C. § 2255.
The court now turns to consider the defendant’s motion for ruling, motion to
amend, motion for an evidentiary hearing and motion pursuant to 28 U.S.C. § 2255.
III. LEGAL STANDARDS
A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255
28 U.S.C. § 2255 allows a prisoner in custody under sentence of a federal court to
move the sentencing court to vacate, set aside or correct a sentence. To obtain relief
15
pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) the sentence was
imposed in violation of the Constitution or laws of the United States; (2) the court was
without jurisdiction to impose such sentence; (3) the sentence was in excess of the
maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack.
See Hill v. United States, 368 U.S. 424" date_filed="1962-02-26" court="SCOTUS" case_name="Hill v. United States">368 U.S. 424, 426-27, 82 S. Ct. 468" date_filed="1962-02-26" court="SCOTUS" case_name="Hill v. United States">82 S. Ct. 468, 7 L. Ed. 2d 417 (1962)
(citing 28 U.S.C. § 2255).
Although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for
“all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S.
178, 185, 99 S. Ct. 2235" date_filed="1979-06-04" court="SCOTUS" case_name="United States v. Addonizio">99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979). Rather, 28 U.S.C. § 2255 is intended
to redress only “fundamental defect[s] which inherently [result] in a complete miscarriage
of justice” and “omission[s] inconsistent with the rudimentary demands of fair procedure.”
Hill, 368 U.S. 424" date_filed="1962-02-26" court="SCOTUS" case_name="Hill v. United States">368 U.S. at 428; see also United States v. Apfel, 97 F.3d 1074" date_filed="1996-10-07" court="8th Cir." case_name="United States v. Monte Allen Apfel">97 F.3d 1074, 1076 (8th Cir. 1996)
(“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and
for a narrow range of injuries that could not have been raised for the first time on direct
appeal and, if uncorrected, would result in a complete miscarriage of justice.”) (citing
Poor Thunder v. United States, 810 F.2d 817" date_filed="1987-02-06" court="8th Cir." case_name="Charles Poor Thunder v. United States">810 F.2d 817, 821 (8th Cir. 1987)). A collateral challenge
under 28 U.S.C. § 2255 is not interchangeable or substitutable for a direct appeal. See
United States v. Frady, 456 U.S. 152" date_filed="1982-05-24" court="SCOTUS" case_name="United States v. Frady">456 U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982)
(making clear a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service for
an appeal). Consequently, “[a]n error that may justify reversal on direct appeal will not
necessarily support a collateral attack on a final judgment.” Id. (internal quotation marks
and citation omitted).
In addition, defendants ordinarily are precluded from asserting claims they failed
to raise on direct appeal. See McNeal v. United States, 249 F.3d 747" date_filed="2001-05-03" court="8th Cir." case_name="Osker McNeal v. United States">249 F.3d 747, 749 (8th Cir. 2001).
“A defendant who has procedurally defaulted a claim by failing to raise it on direct review
16
may raise the claim in a [28 U.S.C. §] 2255 proceeding only by demonstrating cause for
the default and prejudice or actual innocence.” Id. (citing Bousley v. United States, 523
U.S. 614, 622, 118 S. Ct. 1604" date_filed="1998-05-18" court="SCOTUS" case_name="Bousley v. United States">118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998)); see also Massaro v. United
States, 538 U.S. 500" date_filed="2003-04-23" court="SCOTUS" case_name="Massaro v. United States">538 U.S. 500, 504, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003) (“[T]he general
rule [is] that claims not raised on direct appeal may not be raised on collateral review
unless the [defendant] shows cause and prejudice.”). “‘[C]ause’ under the cause and
prejudice test must be something external to the [defendant], something that cannot be
fairly attributed to him.” Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546" date_filed="1991-09-13" court="SCOTUS" case_name="Coleman v. Thompson">111 S. Ct. 2546, 115
L. Ed. 2d 640 (1991) (emphasis in original). If a defendant fails to show cause, a court
need not consider whether actual prejudice exists. McCleskey v. Zant, 499 U.S. 467" date_filed="1991-04-16" court="SCOTUS" case_name="McCleskey v. Zant">499 U.S. 467, 501,
111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). Actual innocence under the actual innocence
test “means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623-
24; see also McNeal, 249 F.3d 747" date_filed="2001-05-03" court="8th Cir." case_name="Osker McNeal v. United States">249 F.3d at 749 (“[A] defendant must show factual innocence, not
simply legal insufficiency of evidence to support a conviction.”).15
B. Standards Applicable to Sixth Amendment
The Sixth Amendment to the United States Constitution provides in pertinent part
that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his [or her] defen[s]e.” U.S. Const., amend. VI. Furthermore,
there is a constitutional right to effective assistance of counsel on direct appeal. Evitts v.
15
The procedural default rule applies to a conviction obtained through trial or
through the entry of a guilty plea. See United States v. Cain, 134 F.3d 1345" date_filed="1998-01-26" court="8th Cir." case_name="United States v. Errol Douglas Cain, United States of America v. Paul Stephen Cain">134 F.3d 1345, 1352 (8th
Cir. 1998); Walker v. United States, 115 F.3d 603" date_filed="1997-06-06" court="8th Cir." case_name="Kevin Allen Walker v. United States">115 F.3d 603, 605 (8th Cir. 1997); Matthews v.
United States, 114 F.3d 112" date_filed="1997-08-26" court="8th Cir." case_name="Todd Edward Matthews v. United States">114 F.3d 112, 113 (8th Cir. 1997); Thomas v. United States, 112 F.3d 365" date_filed="1997-04-25" court="8th Cir." case_name="Billy Darrell Thomas, Movant/appellant v. United States">112 F.3d 365,
366 (8th Cir. 1997); Reid v. United States, 976 F.2d 446" date_filed="1992-11-09" court="8th Cir." case_name="Lee Orville Reid v. United States">976 F.2d 446, 448 (8th Cir. 1992).
17
Lucey, 469 U.S. 387" date_filed="1985-03-18" court="SCOTUS" case_name="Evitts v. Lucey">469 U.S. 387, 393-95, 105 S. Ct. 830" date_filed="1985-03-18" court="SCOTUS" case_name="Evitts v. Lucey">105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Douglas v.
California, 372 U.S. 353" date_filed="1963-04-29" court="SCOTUS" case_name="Douglas v. California">372 U.S. 353, 356-57, 83 S. Ct. 814" date_filed="1963-04-29" court="SCOTUS" case_name="Douglas v. California">83 S. Ct. 814, 9 L. Ed. 2d 811 (1963).
The Sixth Amendment right to effective counsel is clearly established. See
Strickland v. Washington, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In
Strickland, the Supreme Court explained that a violation of that right has two components:
First, the defendant 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. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Id. at 687; see also Williams, 529 U.S. at 390 (reasserting Strickland standard). Thus,
Strickland requires a showing of both deficient performance and prejudice. However, “a
court deciding an ineffective assistance claim [need not] address both components of the
inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at
697. “If it is easier to dispose of an ineffectiveness claim on grounds of lack of sufficient
prejudice, . . . that course should be followed.” Id.; see also United States v. Apfel, 97
F.3d 1074, 1076 (8th Cir. 1996) (“[A court] need not address the reasonableness of the
attorney’s behavior if the [defendant] cannot prove prejudice.”).
To establish unreasonably deficient performance, a “defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” Strickland,
466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. at 688. The “reasonableness of counsel’s challenged conduct [must be reviewed]
on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690.
There is a strong presumption of competence and reasonable professional judgment. Id.;
see also United States v. Taylor, 258 F.3d 815" date_filed="2001-07-27" court="8th Cir." case_name="United States v. Henry Taylor, Jr.">258 F.3d 815, 818 (8th Cir. 2001) (operating on the
18
“strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance” (quoting Strickland, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. at 689)); Sanders v. Trickey, 875
F.2d 205, 210 (8th Cir. 1989) (stating that broad latitude to make strategic and tactical
choices regarding the appropriate action to take or refrain from taking is afforded when
acting in a representative capacity) (citing Strickland, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. at 694). In sum, the court
must “determine whether, in light of all the circumstances, the identified acts or omissions
were outside the range of professionally competent assistance.” Strickland, 466 U.S. at
690.
To establish prejudice, “[i]t is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, a
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. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Id. at 694. In other words, “the question is whether there is a reasonable probability that,
absent those errors, the fact finder would have had a reasonable doubt respecting guilt.”
Id. at 695. In answering that question, the court “must consider the totality of the
evidence before the judge or jury.” Id.
IV. ANALYSIS
A. Review of Motion for Ruling
In the motion for ruling, the defendant correctly points out that a substantial amount
of time has passed since the date he filed his 28 U.S.C. § 2255 motion. Accordingly, the
defendant’s motion for ruling shall be granted.
B. Review of Motion to Amend
The additional claims that are raised in the defendant’s motion to amend are
untimely. Under the Antiterrorism and Effective Death Penalty Act of 1996, a 28 U.S.C.
19
§ 2255 motion must be filed within one year of the date the conviction becomes final,
except in circumstances not present here. See 28 U.S.C. § 2255.16 Here, the defendant’s
conviction became “final” on October 24, 2004–the last day he could have timely filed a
petition for a writ of certiorari. See Clay v. United States, 537 U.S. 522" date_filed="2003-03-04" court="SCOTUS" case_name="Clay v. United States">537 U.S. 522, 527, 123 S. Ct.
1072, 155 L. Ed. 2d 88" date_filed="2003-03-04" court="SCOTUS" case_name="Clay v. United States">155 L. Ed. 2d 88 (2003) (“Finality attaches when [the Supreme Court] affirms a
conviction on the merits on direct review or denies a petition for a writ of certiorari, or
when the time for filing a certiorari petition expires.”). Although he timely filed his
original 28 U.S.C. § 2255 motion, the defendant did not file the motion to amend before
October 24, 2005, which is the last date he could have timely filed an amendment to his
28 U.S.C. § 2255 motion. See 28 U.S.C. § 2255. Consequently, any amendment would
have to sufficiently relate back to the defendant’s original 28 U.S.C. § 2255 motion. See
16
A 1-year period of limitation shall apply to a motion under this section.
The limitation period shall run from the latest of–
(1) the date on which the judgment of conviction becomes
final;
(2) the date on which the impediment to making a motion
created by governmental action in violation of the Constitution
or laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized
by the Supreme Court, if that right has been newly recognized
by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence.
28 U.S.C. § 2255.
20
United States v. Craycraft, 167 F.3d 451" date_filed="1999-02-03" court="8th Cir." case_name="United States v. Michael Lloyd Craycraft">167 F.3d 451, 457 (8th Cir. 1999) (concluding an otherwise
untimely amendment to a 28 U.S.C. § 2255 motion does not relate back to a timely filed
motion when the original claims are distinctly separate from the claims in the amendment);
see also Mandacina v. United States, 328 F.3d 995" date_filed="2003-05-16" court="8th Cir." case_name="John A. Mandacina v. United States">328 F.3d 995, 999-1000 (8th Cir. 2003) (citing
Craycraft, 167 F.3d 451" date_filed="1999-02-03" court="8th Cir." case_name="United States v. Michael Lloyd Craycraft">167 F.3d at 457); Moore v. United States, 173 F.3d 1131" date_filed="1999-04-16" court="8th Cir." case_name="Eric A. Moore v. United States">173 F.3d 1131, 1135 (8th Cir. 1999)
(discussing Craycraft, 167 F.3d 451" date_filed="1999-02-03" court="8th Cir." case_name="United States v. Michael Lloyd Craycraft">167 F.3d at 456-57). Because the defendant wants to introduce
entirely new claims or amendments which do not sufficiently relate back to his original
claims, the defendant’s motion to amend shall be denied. Further, the court declines to
expand the record as the defendant requests in his motion to amend.
C. Review of Motion for an Evidentiary Hearing
With respect to the defendant’s motion for an evidentiary hearing, a district court
is given discretion in determining whether to hold an evidentiary hearing on a motion
under 28 U.S.C. § 2255. See United States v. Oldham, 787 F.2d 454" date_filed="1986-04-03" court="8th Cir." case_name="United States v. Jeffrey L. Oldham">787 F.2d 454, 457 (8th Cir.
1986). In exercising that discretion, the district court must determine whether the alleged
facts, if true, entitle the defendant to relief. See Payne v. United States, 78 F.3d 343" date_filed="1996-05-22" court="8th Cir." case_name="John Alvin Payne v. United States">78 F.3d 343, 347
(8th Cir. 1996). “Accordingly, [a district court may summarily dismiss a motion brought
under 28 U.S.C. § 2255 without an evidentiary hearing] if (1) the . . . allegations,
accepted as true, would not entitle the [defendant] 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.” Engelen v. United States, 68 F.3d 238" date_filed="1995-10-13" court="8th Cir." case_name="Corey Earl Engelen v. United States">68 F.3d 238, 240-41
(8th Cir. 1995) (citations omitted); see also Delgado v. United States, 162 F.3d 981" date_filed="1999-03-18" court="8th Cir." case_name="Miguel Delgado v. United States">162 F.3d 981, 983
(8th Cir. 1998) (stating that an evidentiary hearing is unnecessary where allegations, even
if true, do not warrant relief or allegations cannot be accepted as true because they are
contradicted by the record or lack factual evidence and rely on conclusive statements);
United States v. Hester, 489 F.2d 48" date_filed="1973-12-17" court="8th Cir." case_name="United States v. William Hester">489 F.2d 48, 50 (8th Cir. 1973) (stating that no evidentiary
21
hearing is necessary where the files and records of the case demonstrate that relief is
unavailable or where the motion is based on a question of law). Stated differently, a 28
U.S.C. § 2255 motion can be dismissed without a hearing where “the files and records of
the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255;
see also Standing Bear v. United States, 68 F.3d 271" date_filed="1995-10-20" court="8th Cir." case_name="Leroy Clifford Standing Bear, Also Known as Clifford Leroy Standing Bear v. United States">68 F.3d 271, 272 (8th Cir. 1995) (per curiam).
The court’s review of the record leads it to conclude that it is able to resolve the
defendant’s claims from the record. Thus, there is no need for an evidentiary hearing.
See Rogers v. United States, 1 F.3d 697" date_filed="1993-09-10" court="8th Cir." case_name="Ricky Lee Rogers v. United States">1 F.3d 697, 699 (8th Cir. 1993) (holding “[a]ll of the
information that the court needed to make its decision with regard to [the defendant’s]
claims was included in the record . . . .” and, therefore, the court “was not required to
hold an evidentiary hearing”) (citing Rule Governing Section 2255 Proceedings 8(a) and
United States v. Raddatz, 447 U.S. 667" date_filed="1980-08-22" court="SCOTUS" case_name="United States v. Raddatz">447 U.S. 667, 674, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980)).
The evidence of record conclusively demonstrates that the defendant is not entitled to the
relief sought. Specifically, the record indicates the defendant’s ineffective assistance of
counsel claims are without merit. As such, the court finds that there is no need for an
evidentiary hearing, and the defendant’s motion for an evidentiary hearing shall be denied.
D. Review of Ineffective Assistance of Counsel Claims
1. Ineffective Assistance of Trial Counsel
The defendant claims that trial counsel provided ineffective assistance when she
failed to properly negotiate during plea negotiations. He believes trial counsel should have
taken steps to determine that he did not qualify as a career offender and should have
proposed a counter-offer that did not include a stipulation regarding his status as a career
offender. In response, the government argues such claim must fail for lack of proof to
satisfy the two-prong test established in Strickland. Specifically, the government contends
that trial counsel did not act unreasonably when she calculated the defendant’s criminal
22
history category and classified the defendant as a career offender during plea negotiations.
Further, the government contends that trial counsel’s conduct did not prejudice the
defendant.
The court concludes that counsel’s performance did not fall below a professional
standard of reasonableness. As the record establishes, both parties proceeded under the
mistaken understanding that the defendant qualified as a career offender under USSG
§4B1.1. When reaching such understanding, trial counsel relied on the defendant’s
statement that he had served nearly the entire sentence for the 1977 armed robbery
conviction,17 and she relied on the criminal history documents that the government sent on
October 1, 1002 and November 1, 2002.18 Nothing in the criminal history documents
indicates that the defendant completed his sentence for the 1977 armed robbery conviction
on December 2, 1986, and it is appropriate for trial counsel to rely on the defendant’s
assertions regarding the amount of time he served for the 1977 armed robbery conviction.
Further, it is clear that, on December 16, 2002 and December 23, 2002, trial
counsel attempted to negotiate a plea agreement on behalf of the defendant. In response
to the government’s October and November of 2002 correspondence which offered to
dismiss count 2 in exchange for a plea of guilty on count 1, the defendant countered by:
17
For the 1977 armed robbery conviction, the defendant served nearly 9 years and
8 months in prison, that is, he spent time in prison from April 21, 1977 to December 2,
1986.
18
The court notes that, despite the government’s repeated reliance on the 1977
burglary conviction or the conviction that correlated with a 4-year term of imprisonment,
trial counsel determined that the 1977 armed robbery conviction or the conviction that
correlated with a 10-year term of imprisonment impacted any determination under USSG
§4B1.1. The 1977 burglary conviction clearly did not meet the requirements of USSG
§4A1.2(e).
23
(1) asking the government to allow him to plead guilty to count 2 because he wanted to be
sentenced from 120 to 150 months imprisonment rather than 188 to 235 months
imprisonment and (2) asking if he could serve his sentence in the Louisiana Department
of Corrections because he did not want to serve a consecutive sentence after officials
revoke his parole on the 1988 armed robbery conviction. Clearly, before trial commenced
or January 7, 2003, the parties never reached an agreement as to: (1) the count or counts
that the defendant should enter a guilty plea; (2) the length of the defendant’s sentence; (3)
the consecutive or concurrent nature of the instant sentence in light of the sentence on the
defendant’s 1988 armed robbery conviction; (4) the place where the defendant would serve
his sentences; and (5) the appropriate facility, that is, the Bureau of Prisons or the
Louisiana Department of Corrections. See United States v. Ledezma-Rodriguez, 423 F.3d
830, 837 (8th Cir. 2005) (citing United States v. Barnes, 83 F.3d 934" date_filed="1996-05-20" court="7th Cir." case_name="United States v. Michael Leroy Barnes, and Cheryl Barnes">83 F.3d 934, 938 (7th Cir.
1996), for the proposition that there must be a meeting of the minds on all of the essential
terms that are contained in the plea agreement).
Moreover, any assertion by the defendant that he told trial counsel that he did not
qualify as a career offender and that he would plead guilty if he did not have to stipulate
to being a career offender is belied by the record. At no time during pre-trial proceedings,
during trial or on appeal did the defendant convey that he wanted to plead guilty and would
do so without a plea agreement. Prior to filing the motion under 28 U.S.C. § 2255, the
efforts undertaken by defendant concerned the effect that a federal conviction would have
on the defendant’s parole for the 1988 armed robbery conviction in Louisiana. The
defendant made clear numerous times that he did not want to serve approximately 25 years
in prison, that is, he did not want to serve a federal sentence and then a state sentence for
violating the terms and conditions of his parole on the 1988 armed robbery conviction.
Given the record regarding the defendant’s position prior to proceeding to trial and during
24
direct appeal, the court finds that the defendant’s ineffective assistance of counsel claim
is unsustainable.
With respect to the first prong of the applicable standard, trial counsel attempted to
discover within a relatively short time frame the facts that effected the defendant’s
sentencing, analyzed the facts in light of USSG §4B1.1 and USSG §4A1.2 and sought to
enter into a favorable plea agreement with the government after discussing the facts and
law with the defendant. The record indicates that trial counsel tried to further the
defendant’s interest in not having to serve two sentences, and, ultimately, she deemed it
appropriate to pursue such interest by proceeding to trial. Based on the record, the court
is unable to conclude that counsel’s failure to realize that the defendant’s 1977 armed
robbery conviction failed to meet the requirements of USSG §4A1.2(e) constitutes deficient
performance. Strickland, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. at 689; see also McMann v. Richardson, 397 U.S.
759, 770, 90 S. Ct. 1441" date_filed="1970-05-04" court="SCOTUS" case_name="McMann v. Richardson">90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970) (stating that a defense attorney’s good
faith and mistaken evaluation of or prediction about the relative advantages of pleading
guilty does not necessarily constitute ineffective assistance); Barnes, 83 F.3d 934" date_filed="1996-05-20" court="7th Cir." case_name="United States v. Michael Leroy Barnes, and Cheryl Barnes">83 F.3d at 939-40
(explaining what constitutes effective assistance when a defendant is considering a guilty
plea and acknowledging that, although gross mis-characterization of the sentencing
consequences of a plea may provide a strong indication of deficient performance, it is not
proof of a deficiency).
In addition, the court finds trial counsel’s performance did not prejudice the
defendant’s defense. Strickland, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. at 692-94. Although “[p]rejudice is possible
. . . where counsel failed to provide accurate advice regarding a plea agreement”,
Kingsberry v. United States, 202 F.3d 1030" date_filed="2000-03-28" court="8th Cir." case_name="Anthony Wilson Kingsberry v. United States">202 F.3d 1030, 1032 (8th Cir. 2000), the record establishes
that the defendant consistently maintained his innocence and he would not have pled guilty
absent trial counsel’s mistake regarding the defendant’s career offender status, see
25
Engelen, 68 F.3d 238" date_filed="1995-10-13" court="8th Cir." case_name="Corey Earl Engelen v. United States">68 F.3d at 241 (concluding that defendant failed to establish that he would have
acknowledged his guilt had he been properly advised). During pre-trial proceedings, trial,
post-trial proceedings and direct appeal, the defendant refused to admit guilt. Indeed, even
after learning of the fact that he did not qualify as a career offender, the defendant
adamantly denied guilt during his sentencing allocution, in post-trial motions and on direct
appeal. Thus, the defendant did not establish that, but for trial counsel’s error, the result
of the plea negotiation process would have been different; the defendant fails to show that
trial counsel’s conduct prejudiced his defense. Cf. Chesney v. United States, 367 F.3d
1055, 1060 (8th Cir. 2004) (finding no error in district court’s belief that defendant would
not have pled guilty even if the government’s pre-trial offer had been communicated);
Sanders v. United States, 341 F.3d 720" date_filed="2003-09-03" court="8th Cir." case_name="Shon Lamar Sanders v. United States">341 F.3d 720, 723 (8th Cir. 2003) (“A defendant who maintains
his innocence at all stages of his criminal prosecution and shows no indication that he
would be willing to admit his guilt undermines his [collateral] claim that he would have
[pled] guilty if only he had received better advice from his lawyer.”); United States v.
Stevens, 149 F.3d 747" date_filed="1998-06-10" court="8th Cir." case_name="United States v. Anton Fabian Stevens, Also Known as Tony Stevens, Also Known as Tommy Stevens">149 F.3d 747, 748 (8th Cir. 1998) (rejecting claim that trial counsel provided
ineffective assistance because defendant failed to establish reasonable probability that he
would have pled guilty if properly advised).19
In sum, because he failed to overcome the strong presumption that the conduct of
trial counsel fell within a wide range of reasonable professional assistance or show that any
deficiencies in trial counsel’s performance prejudiced his defense, the defendant’s
ineffective assistance of counsel claim fails.
19
The court notes that a reduction for acceptance of responsibility under USSG
§3E1.1 is not automatic and that eligibility is based on a clear demonstration of guilt.
26
2. Ineffective Assistance of Appellate Counsel: Improper
Admission of a Laboratory Report
The defendant claims that appellate counsel provided ineffective assistance when he
failed to assert on direct appeal a claim regarding the improper admission of a laboratory
report. He believes appellate counsel should have raised the error of admitting a
laboratory report which identified the substance he distributed as crack cocaine. To
support his claim, the defendant relies on Crawford v. Washington, 541 U.S. 36" date_filed="2004-03-08" court="SCOTUS" case_name="Crawford v. Washington">541 U.S. 36, 124 S.
Ct. 1354, 158 L. Ed. 2d 177" date_filed="2004-03-08" court="SCOTUS" case_name="Crawford v. Washington">158 L. Ed. 2d 177 (2004); United States v. Le, 272 F.3d 530" date_filed="2001-11-15" court="8th Cir." case_name="United States v. Duy Duc Le, Also Known as Trang, and Tuan Van Ung">272 F.3d 530 (8th Cir. 2001),
and United States v. Riley, 236 F.3d 982" date_filed="2001-01-18" court="8th Cir." case_name="United States v. Gary Jerome Riley">236 F.3d 982 (8th Cir. 2001). The government resists such
claim on the basis that appellate counsel’s performance met or exceeded a professional
standard of reasonableness and did not prejudice the defendant’s defense. In addition, the
government argues that the rule announced in Crawford is not retroactive, and, therefore,
the defendant is unable to rely on it. Finally, the government contends that, if an error
occurred, it is harmless.
At trial, the government called DEA Task Force Officer Anthony Robinson to
testify and moved to admit into evidence a laboratory report. With respect to such
testimony and such evidence, the following colloquy occurred:
Q. Was anything seized from Mr. Swayze that night?
A. Yes, there was.
Q. What was that?
A. They seized crack cocaine, powder cocaine, currency and
a cellular telephone.
...
Q. Was the crack cocaine, which is Exhibit 3, and the
cocaine, Exhibit 4, seized in this case sent to the laboratory for
analysis?
27
A. Yes, it was.
Q. Which laboratory?
A. It went to the DCI lab in Des Moines.
Q. I am showing you what has been marked as Government
Exhibit 5. Do you recognize that document?
A. This is the report given by the DCI lab in Des Moines
[that references] this evidence.
Q. Is it also accompanied by a self-authenticating affidavit?
A. Yes, it is.
Q. Who signed that affidavit?
A. Staci Schmeiser.
Q. And who signed the lab report itself?
A. Staci Schmeiser did. She was the criminologist that did
the result.
...
MS. BAUMANN: The Government moves to admit
Government Exhibit 5 into evidence.
THE COURT: Ms. Lilledahl?
MS. LILLEDAHL: No objection, Your Honor.
THE COURT: Government’s 5 is admitted without objection.
On direct appeal, the defendant submitted his brief on January 23, 2004, the government
filed its brief on March 5, 2004, the Supreme Court decided Crawford on March 8, 2004
and the defendant did not file a reply brief.
The defendant’s ineffective assistance of counsel claim fails for three reasons.
First, appellate counsel is not required to recognize and raise every conceivable
constitutional claim. See Anderson v. United States, 393 F.3d 749" date_filed="2005-01-04" court="8th Cir." case_name="Randy Anderson v. United States">393 F.3d 749, 754 (8th Cir. 2005)
28
(concluding no constitutional violation occurred when defense counsel failed to raise novel
argument based on Apprendi, 530 U.S. 466" date_filed="2000-06-26" court="SCOTUS" case_name="Apprendi v. New Jersey">530 U.S. at 466). Second, newly promulgated rules of
criminal procedure generally do not apply to cases on collateral review, see Evans v.
Luebbers, 371 F.3d 438" date_filed="2004-08-06" court="8th Cir." case_name="Rodney Clay Evans v. Allen Luebbers, Superintendent, Potosi Correctional Center">371 F.3d 438, 444-45 (8th Cir. 2004) (suggesting that Crawford does not appear
to be subject to retroactive application on collateral review). Finally, assuming a violation
of the Confrontation Clause occurred, any error that occurred is harmless because
substantial additional evidence supported the defendant’s conviction. See Middleton v.
Roper, 455 F.3d 838" date_filed="2006-07-06" court="8th Cir." case_name="John Middleton v. Don Roper, 1">455 F.3d 838, 857 (8th Cir. 2006) (stating that an alleged violation of the
Confrontation Clause is subject to harmless error analysis). Accordingly, the court
concludes that no violation of the defendant’s constitutional right to effective assistance of
counsel occurred; the defendant did not demonstrate that, but for appellate counsel’s error,
there is a reasonable probability that the result of the trial would have been different. See
Strickland, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. at 689-95.
3. Ineffective Assistance of Appellate Counsel: Inadequate Representation
During Plea Negotiations by Trial Counsel
The defendant claims appellate counsel provided ineffective assistance when he
failed to assert on direct appeal a claim regarding trial counsel’s inadequate representation
during plea negotiations. For the reasons set forth in part IV(D)(1), the court finds that
appellate counsel’s failure to raise a futile or frivolous issue cannot constitute ineffective
assistance. Strickland, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. at 689; see also United States v. Davis, 406 F.3d 505" date_filed="2005-05-05" court="8th Cir." case_name="United States v. Cleophus Davis, Jr.">406 F.3d 505,
510-11 (8th Cir. 2005) (stating that ineffective assistance of counsel claims are generally
raised in collateral proceedings and concluding that appellate counsel did not provide
ineffective assistance where no viable appellate claim existed). In addition, the court finds
that the defendant did not suffer prejudice in this regard. Strickland, 466 U.S. 668" date_filed="1984-06-25" court="SCOTUS" case_name="Strickland v. Washington">466 U.S. at 692-94.
Stated differently, the court must conclude that appellate counsel did not provide
29
ineffective assistance when he failed to raise during appellate proceedings a claim
regarding trial counsel’s representation. Because he did not prove either prong of the
Strickland test, the defendant’s ineffective assistance of counsel claim fails.
E. Certificate of Appealability
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
may issue only if a defendant has made a substantial showing of the denial of a
constitutional right. See Miller-El v. Cockrell, 537 U.S. 322" date_filed="2003-02-25" court="SCOTUS" case_name="Miller-El v. Cockrell">537 U.S. 322, 335-36, 123 S. Ct. 1029" date_filed="2003-02-25" court="SCOTUS" case_name="Miller-El v. Cockrell">123 S. Ct. 1029,
1039, 154 L. Ed. 2d 931 (2003); Garrett v. United States, 211 F.3d 1075" date_filed="2000-05-01" court="8th Cir." case_name="Tony D. Garrett v. United States">211 F.3d 1075, 1076-77 (8th
Cir. 2000); Carter v. Hopkins, 151 F.3d 872" date_filed="1998-08-11" court="8th Cir." case_name="George Carter v. Frank X. Hopkins">151 F.3d 872, 873-74 (8th Cir. 1998); Cox v. Norris, 133
F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523. To make such a showing, the
issues must be debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing Flieger
v. Delo, 16 F.3d 878" date_filed="1994-04-07" court="8th Cir." case_name="Robert Flieger v. Paul K. Delo, Superintendent">16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. 322" date_filed="2003-02-25" court="SCOTUS" case_name="Miller-El v. Cockrell">537 U.S. at 335-36
(reiterating standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [defendant] must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. 322" date_filed="2003-02-25" court="SCOTUS" case_name="Miller-El v. Cockrell">537 U.S. at 338 (quoting Slack v.
30
McDaniel, 529 U.S. 473" date_filed="2000-04-26" court="SCOTUS" case_name="Slack v. McDaniel">529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000)). When a
federal habeas petition is dismissed on procedural grounds without reaching the underlying
constitutional claim, “the [defendant must show], at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” See Slack, 529 U.S. 473" date_filed="2000-04-26" court="SCOTUS" case_name="Slack v. McDaniel">529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the
defendant failed to make the requisite “substantial showing” with respect to the claims he
raised in his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P.
22(b). Because the defendant does not present questions of substance for appellate review,
there is no reason to grant a certificate of appealability. Accordingly, a certificate of
appealability shall be denied. If he desires further review of his 28 U.S.C. § 2255 motion,
the defendant may request issuance of the certificate of appealability by a circuit judge of
the Eighth Circuit Court of Appeals in accordance with Tiedeman, 122 F.3d at 520-22.
V. CONCLUSION
The defendant’s motion for ruling (docket no. 121) is GRANTED. The defendant’s
motion for an evidentiary hearing (docket no. 106) and motion to amend (docket no. 113)
are DENIED. The court finds all of the defendant’s assertions in his 28 U.S.C. § 2255
motion to be without merit. Accordingly, the defendant’s motion pursuant to 28 U.S.C.
§ 2255 (docket no. 105) is DENIED. In addition, the court does not believe that appellate
review of the defendant’s claims is warranted, and, therefore a certificate of appealability
31
is DENIED.
IT IS SO ORDERED.
DATED this 28th day of March, 2008.
32