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Brewer v. United States

United States District Court, Eighth Circuit

January 7, 2014



LINDA R. READE, Chief District Judge.


This matter appears before the court on Edward Frank Brewer's (the "movant") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 ("motion") (civil docket no. 1). The movant filed the motion[1] on April 4, 2012.[2] On July 19, 2012, the court, among other things, directed the government to file a brief in response to the claims that the movant included in the motion.[3] See July 19, 2012 Order (civil docket no. 7). On August 17, 2012, Leslie Stokke, the movant's counsel through trial, filed an affidavit. Stokke Affidavit (civil docket no. 9). On August 24, 2012, JoAnne Lilledahl, the movant's counsel at his initial appearance and arraignment, filed an affidavit.[4] Lilledahl Affidavit (civil docket no. 12). On September 5, 2012, Wallace Taylor, the movant's counsel on appeal, filed an affidavit. Taylor Affidavit (civil docket no. 13). On October 11, 2012, the government filed a resistance to the motion (civil docket no. 22). On October 29, 2012, the movant filed a reply to the government's resistance (civil docket no. 27). On November 27, 2012, the movant filed an additional reply brief to the government's resistance (civil docket no. 31). The court now turns to consider the movant's motion.


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, 457 (8th Cir. 1986). In exercising that discretion, the district court must determine whether the alleged facts, if true, entitle the movant to relief. See 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 [movant] 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, 240-41 (8th Cir. 1995) (citations omitted); see also 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, 50 (8th Cir. 1973) (stating that no evidentiary 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, the court can dismiss a 28 U.S.C. § 2255 motion 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; accord Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir. 1995) (per curiam).

The court concludes that it is able to resolve the movant's claims from the record. See Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding that "[a]ll of the information that the court needed to make its decision with regard to [the movant'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, 674 (1980))). The evidence of record conclusively demonstrates that the movant is not entitled to the relief sought. Specifically, it indicates that counsel represented the movant in a manner that comports with the requirements of the Fifth and Sixth Amendments, there is no evidence of prosecutorial misconduct and the movant is not entitled to relief in light of any newly discovered evidence. As such, the court finds that there is no need for an evidentiary hearing.


With respect to the merits of the movant's claims, the court deems it appropriate to deny the motion for the reasons stated in the government's resistance. The government's brief adequately sets forth the law that is applicable to the facts in the movant's case. Specifically, the government correctly concludes that all of the movant's claims are without merit.

Moreover, the court thoroughly reviewed the record and finds that the denial of the movant's 28 U.S.C. § 2255 motion comports with the Constitution, results in no "miscarriage of justice" and is consistent with the "rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962); see also United States v. 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 on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987))).

A. Ineffective Assistance of Trial Counsel

First, the movant claims that Stokke was ineffective as the movant's counsel up to and throughout his trial. The movant argues that Stokke was ineffective at trial because he: (1) failed to offer defenses of vindictive and selective prosecution; (2) failed to challenge the Indictment; (3) failed to subpoena witnesses who would have provided an alibi for the movant during the controlled buys; (4) failed to suppress evidence of unrecorded phone calls and surveillance photographs; (5) failed to subpoena an allegedly exculpatory statement regarding the movant's alleged change of clothes on September 19, 2008; (6) failed to impeach government witness who the movant alleges lied in their testimony at trial and before the grand jury; (7) failed to identify and subpoena the government's confidential source; (8) failed to determine which officer was stationed near the location of a controlled buy that took place on September 30, 2008; (9) failed to move for a directed verdict; (10) conspired with the government to conceal exculpatory evidence; (11) failed to file for a bill of particulars; (12) failed to challenge the admissibility and/or validity of certain evidence; (13) failed to challenge testimony regarding the amount of money recovered from the movant on September 19, 2008, following the controlled buy; (14) failed to challenge various portions of his Presentence Investigation Report ("PSIR"); and (13) failed to present an adequate defense at sentencing.

The court concludes that the conduct of Stokke fell within a wide range of reasonable professional assistance, Strickland v. Washington, 466 U.S. 668, 689 (1984), and did not prejudice the movant's defense, id. at 692-94. The movant's assertions about Stokke do not lead the court to conclude that a violation of the Sixth Amendment occurred. Accordingly, the movant has failed to establish an ineffective assistance of trial counsel claim. See id. at 697 (holding that, to establish an ineffective assistance of counsel claim, the movant must first "show that counsel's performance was deficient" and then "show that the deficient performance prejudiced the defense"); see also United States v. Taylor, 258 F.3d 815, 818 (8th Cir. 2001) ("To establish ineffective assistance of counsel[, the movant] must demonstrate: (1) his attorney's performance was deficient... and (2) he suffered prejudice by showing that, absent counsel's ineffective assistance, there is a reasonable probability that the result of the proceeding would have been different.").

The court has reviewed the record in its entirety, including the record from the movant's trial, and concludes that each of the movant's arguments is without merit. Although the court has carefully considered each of the movant's claims, the court finds that it is unnecessary to address each of the movant's arguments that Stokke was ineffective at trial, several of which merely consist of baseless speculation. Nonetheless, the court will specifically address those that the movant emphasizes. With respect to the movant's claim that Stokke was ineffective because he failed to raise a claim of vindictive and selective prosecution, the movant asserts that he had a "racial and hostile relationship" with his state probation officer that he claims led to vindictive prosecution. Brief in Support of the Motion (civil docket no. 16-2) at 2. In his affidavit, Stokke states that he did not notice any "indication that the government had engaged in vindictive prosecution.'" Stokke Affidavit at 1. In addition, Stokke states that he believed it was "poor trial strategy" to emphasize that the movant was on probation prior to committing the offense for which he was on trial. Id. at 2. Stokke's strategic decision is reasonable and, thus, the movant has failed to show deficient performance. See Link v. Luebbers, 469 F.3d 1197, 1204 (8th Cir. 2006) ("Ordinarily, [the court] consider[s] strategic decisions to be virtually unchallengeable unless they are based on deficient investigation...."). In addition, because this argument would have been futile, the movant has failed to show prejudice.

The movant also contends that the government was vindictive for filing a Superseding Indictment (criminal docket no. 13), which included a conspiracy to distribute cocaine base charge, naming Rosina Rhodes as a co-conspirator. As the government points out in its brief, "a charge against Rhodes in the initial indictment may have been premature in light of the evidence against her at that time." Brief in Support of the Resistance (civil docket no. 22-1) at 19. The movant may establish vindictive prosecution "through objective evidence that the prosecutor's decision to seek a more severe sentence was intended to punish the defendant for the exercise of a legal right." United States v. Campbell, 410 F.3d 456, 461 (8th Cir. 2005). In the alternative, a "defendant is entitled to a presumption of vindictiveness where there exists a reasonable likelihood of vindictiveness, which may arise when prosecutors increase the number or severity of charges." Id. However, the bare fact that the government filed a Superseding Indictment, which added a conspiracy claim, does not support a conclusion that the government was engaged in vindictive prosecution. The movant makes no allegation that the Superseding Indictment was filed to punish the movant for ...

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