United States District Court, N.D. Iowa, Central Division
MEMORANDUM OPINION AND ORDER REGARDING
MARK W. BENNETT, District Judge.
This case is before me on petitioner Roy James Keough's pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. Keough claims that his trial counsel provided him with ineffective assistance by failing to challenge the prosecution's notice of intent to seek a sentencing enhancement based on Keough's prior drug felony convictions, pursuant to 21 U.S.C. § 851(a)(1). The respondent denies that Keough is entitled to relief on his claim.
A. Criminal Case Proceedings
On August 10, 2010, Keough was charged by a one-count Indictment with possessing with intent to distribute 12.60 grams of methamphetamine which contained 12.348 grams of pure methamphetamine, having previously been convicted of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 851. On September 14, 2010, the prosecution filed a Notice of Intent to Seek Enhanced Penalties Pursuant to 21, U.S.C. § 851. The § 851 notice contained the correct charge and date but, incorrectly identified the drug involved as crack cocaine when it should have stated methamphetamine. The § 851 notice also correctly identified Keough's prior felonies. On October 13, 2010, Keough entered a plea of guilty to the charged offense. A probation officer then prepared a presentence report ("PSR"). The PSR identified the correct drug charged in the Indictment. The PSR identified Keough's prior drug felony convictions.
On March 7, 2011, Keough's counsel filed a Motion For Downward Variance. Keough appeared before me on March 21, 2011, for sentencing. The prosecution made a motion for downward departure based on Keough's substantial assistance under U.S.S.G. § 5K1.1. I found that Keough's total offense level was 34 with a criminal history category of VI, for an advisory United States Sentencing Guideline range of 262 to 327 months I granted both the prosecution's § 5K1.1 motion and Keough's motion for downward variance, and sentenced him to 190 months imprisonment, and 8 years of supervised release. Keough did not appeal.
B. The Petitioner's § 2255 Motion
On December 19, 2011, Keough filed a pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. After respondent filed its answer, I set a briefing schedule and counsel was appointed to represent Keough on the § 2255 motion. Keough then sought, and was granted, an extension of time in which to file a supplemental brief in support of his § 2255 motion. Keough filed a pro se supplemental brief on March 14, 2012. On March 16, 2012, Keough's counsel filed an Anders brief. Respondent then filed its response to Keough's § 2255 motion on May 14, 2012. On May 29, 2012, Keough filed a pro se reply.
II. LEGAL ANALYSIS
A. Standards For § 2255 Relief
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground  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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255; see Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) ("Under 28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief on the ground that his sentence was imposed in the absence of jurisdiction or in violation of the Constitution or laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack."); Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir. 2003) ("To prevail on a § 2255 motion, the petitioner must demonstrate a violation of the Constitution or the laws of the United States."). Thus, a motion pursuant to § 2255 "is intended to afford federal prisoners a remedy identical in scope to federal Habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson ).
One "well established principle" of § 2255 law is that "[i]ssues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.'" Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780. One exception to that principle arises when there is a "miscarriage of justice, " although the Eighth Circuit Court of Appeals has "recognized such an exception only when petitioners have produced convincing new evidence of actual innocence, " and the Supreme Court has not extended the exception beyond situations involving actual innocence. Wiley, 245 F.3d at 752 (citing cases, and also noting that "the Court has emphasized the narrowness of the exception and has expressed its desire that it remain rare' and available only in the extraordinary case.'" (citations omitted)). Just as § 2255 may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily "is not available to correct errors which could have been raised at trial or on direct appeal." Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in Habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
"Cause and prejudice" to resuscitate a procedurally defaulted claim may include ineffective assistance of counsel, as defined by the Strickland test, discussed below. Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when brought for the first time pursuant to § 2255, because of the advantages of that form of proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003). Otherwise, "[t]he Supreme Court recognized in Bousley that a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default.'" United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (quoting Bousley, 523 U.S. at 622, with emphasis added, in turn quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). The "actual innocence" that may overcome either procedural default or allow relitigation of a claim that was raised and rejected on direct appeal is a demonstration "that, in light of all the evidence, it is more likely than not that no reasonable juror would Have convicted [the petitioner].'" Johnson v. United States, 278 F.3d 839, 844 (8th Cir. 2002) (quoting Bousley, 523 U.S. at 623); see also House v. Bell, 547 U.S. 518, 536-37 (2006). "This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a [conviction on the challenged offense].'" Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001)).
With these standards in mind, I turn to analysis of Keough's ...