United States District Court, N.D. Iowa, Cedar Rapids Division
LINDA R. READE, District Judge.
I. INTRODUCTION AND PROCEDURAL HISTORY
The matter before the court is Justin Seastrom'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 on October 22, 2013. On November 14, 2013, the court, among other things, directed the government to brief the claims in the movant's motion. November 14, 2013 Order (civil docket no. 2). On January 6, 2014, James Moriarty, the movant's counsel through the plea stage ("plea counsel"), filed an affidavit ("Moriarty affidavit") (civil docket no. 11). On January 15, 2014, the movant filed a supplement to the motion (civil docket no. 13). On February 20, 2014, sentencing counsel filed an affidavit ("Kelly affidavit") (civil docket no. 17). On March 12, 2014, the government filed a resistance to the motion ("resistance") (civil docket no. 18). The movant has not filed a reply and the time to do so has expired. See February 11, 2014 Order (civil docket no. 16) at 1 ("If he so chooses, the movant is directed to file a brief in reply to the government's response by no later than April 7, 2014."). The motion is fully submitted and ready for decision.
II. RELEVANT BACKGROUND OF CRIMINAL CASE
On April 23, 2012, the government filed a two-count information (criminal docket no. 2) charging the movant with: (1) knowingly possessing two firearms, that is, a loaded Bersa Thunder.380 caliber pistol, bearing serial number 791749, and a loaded Rock Island Armory.45 caliber pistol, bearing serial number RIA1215266,  while being an unlawful user of marijuana and after having been convicted of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 922(g)(3) (Count 1); and (2) knowingly and intentionally possessing pseudoephedrine with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(c)(1) (Count 2). Information at 1-2. The information also contains a forfeiture allegation. Id. at 2.
On April 27, 2012, the movant pled guilty to Counts 1 and 2 of the information before Judge Scoles pursuant to a plea agreement. April 27, 2012 Minute Entry (criminal docket no. 16). At the plea hearing, the parties estimated that the movant's offense level would be 26 prior to acceptance of responsibility with a criminal history category III or IV, which would result in a 57- to 71-month range or a 70- to 87-month range, respectively. Plea hearing transcript (criminal docket no. 52) at 21. On May 14, 2012, the court accepted Judge Scoles's Report and Recommendation (criminal docket no. 17), which recommended that the court accept the movant's guilty pleas. May 14, 2012 Order (criminal docket no. 20).
On July 13, 2012, the United States Probation Office ("USPO") filed a draft presentence investigation report ("draft PSIR") (criminal docket no. 21). In the draft PSIR, the USPO stated that "[b]ased upon a total offense level of 23 and a criminal history category of VI, the guideline imprisonment range is 92 months to 115 months." Draft PSIR ¶ 78. The government did not file any objections to the draft PSIR.
On July 23, 2012, plea counsel filed a motion to withdraw (criminal docket no. 23). In the motion to withdraw, plea counsel informed the court that he had not been paid the amount due under the retainer agreement and that, contrary to his advice, the movant had contacted federal authorities "in an attempt to directly negotiate his case disposition" when the movant's state charges were pending and before the federal government brought additional charges against the movant. Motion to withdraw at 2. Plea counsel also stated that he "delivered a copy [of the draft PSIR] to the [movant] on or about... July 13, 2012 at the Linn County Correctional Facility, and advised the [movant] he needed to review the report and advise [plea counsel] of any objections, corrections, additions or deletions by July 27, 2012." Id. Plea counsel noted that "no [indication] of dissatisfaction with the services of [plea counsel] were given by the [movant]." Id. On July 16, 2012, the movant left a telephone message with plea counsel, informing plea counsel that his services were no longer required. Id. On August 1, 2012, Judge Scoles granted the motion to withdraw, and on that same date, the judge ordered that new counsel should be appointed. August 1, 2012 Order (criminal docket no. 28).
On August 30, 2012, the movant filed objections to the draft PSIR. Objections (criminal docket no. 31). None of the objections challenged the advisory guideline sentence computation. On September 6, 2012, the USPO filed a final PSIR. On September 20, 2012, the government filed a sentencing memorandum (criminal docket no. 34). On September 25, 2012, the movant filed a sentencing memorandum (criminal docket no. 35). Both sentencing memoranda acknowledged that there were no contested sentencing issues that the court would have to address.
On October 5, 2012, the government filed a supplement to the government's sentencing memorandum (criminal docket no. 36) stating that it "obtained new evidence which it believes could impact the advisory guideline range, and create contested issues for the [c]ourt's consideration." Supplement to the government's sentencing memorandum at 1. The government attached an exhibit to the supplement to the government's sentencing memorandum, that is, a September 24, 2012 letter written by the movant and addressed to a target of an ongoing investigation by the government. In the letter, the movant told the target that Agent Steven Warner was asking the movant for information concerning the target. Letter to target (criminal docket no. 36-1) at 1. The movant stated that someone stole $7000 of his money from an acquaintance who was holding his money and that the acquaintance knows who stole the money. Id. The movant told the target that he needed him to do something about it. Id. The movant wrote the following:
Yeah, I cant cut my time back. Youre the only one they want me to tell on & I can't do it dawg! If I tell on you, who's gonna take care of me for 7 years? You better have me dawg. like 40$ a month will do me just fine dawg! Amanda took ALL my shit & broke bad. Lara broke bad. I aint got no one bro! So I need you to hold me down & try & get some of my 7 grand back for me!
Id. at 2. Due to this letter, the government stated that the movant might not be entitled to acceptance of responsibility, might have obstructed justice and might have violated a condition or term of his plea agreement, which would forfeit the movant's USSG §1B1.8 protection and potentially subject him to an offense level of 36. Supplement to the government's sentencing memorandum at 2.
On October 23, 2012, the parties filed a joint sentencing agreement (criminal docket no. 39). In the joint sentencing agreement, the parties agreed that, in light of the letter, "a reduction for acceptance of responsibility is not appropriate" and "without acceptance of responsibility, the advisory guideline range is 120 to 150 months." Joint sentencing agreement at 1-2. The government withdrew its request that the court impose an enhancement for obstruction of justice and also "agree[d] not to seek an increase in [the movant's] offense level based on information provided by [the movant and] protected under USSG §1B1.8." Id. at 2.
On October 24, 2012, the court sentenced the movant to 150 months in prison. Judgment (criminal docket no. 41) at 2. The term consisted of a 120-month term for Count 1 and a 150-month term for Count 2, to be served concurrently. Id.
A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255
28 U.S.C. § 2255 allows a prisoner in custody under the sentence of a federal court to move the sentencing court to vacate, set aside or correct a sentence. To obtain relief 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, 426-27 (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 (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. at 428; 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 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, 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, 165 (1982) (making clear a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service for an appeal). Consequently, "an 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).
B. 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, 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(b); 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 the movant's assertions fail because plea counsel and sentencing counsel represented the movant in a manner that comports with the requirements of the Sixth Amendment and that the movant's remaining claims are without merit. As such, the court finds that there is no need for an evidentiary hearing.
C. Ineffective Assistance of Counsel Claims
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.
The Sixth Amendment right to effective counsel is clearly established. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Ordinarily, a claim of ineffective assistance of counsel should be raised in a § 2255 proceeding rather than on direct appeal. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). In Strickland, the Supreme Court explained that a violation of the right to effective assistance of counsel has two components:
First, [a movant] 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 [movant] by the Sixth Amendment. Second, [a movant] must show that the deficient performance prejudiced the defense.
Strickland, 466 U.S. at 687; see also Williams v. Taylor, 529 U.S. 362, 390 (2000) (reasserting Strickland standard). In other words, the movant "must demonstrate: (1) his [or her] attorney's performance was deficient and fell outside the range of reasonable professional assistance; and (2) he [or she] 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." United States v. Taylor, 258 F.3d 815, 818 (8th Cir. 2001). Thus, Strickland requires a showing of both deficient performance and prejudice. Id. However, "a court deciding an ineffective assistance claim... [need not] address both components of the inquiry if the [movant] makes an insufficient showing on one." Strickland, 466 U.S. at 697. If a court finds "counsel's performance adequate, [it] need not address the issue of prejudice under the second prong of the Strickland test." Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002). Conversely, "[i]f it is easier to dispose of an ineffectiveness claim on ground of lack of sufficient prejudice, ... that course should be followed." Strickland, 466 U.S. at 670; see also Apfel, 97 F.3d at 1076 ("[A court] need not address the reasonableness of the attorney's behavior if the movant cannot prove prejudice.").
1. Ineffective assistance of plea counsel
In the motion, the movant argues that plea counsel was ineffective because
[o]n numerous occasions, [plea counsel] lied to and deceived me.... The Sixth Amendment states that I have the right to have effective counsel to help me through court proceedings. Effective counsel that I can trust, that I can rely on to ensure that I rec[ei]ve a fair trial. Effective counsel to perform as an independent lawyer devoted to me, the defendant. My Sixth Amendment right was ...