Clark v. United States

JURMONT CLARK Movant, v. UNITED STATES OF AMERICA, Respondent.

Case No: 4:19CV2305 HEA

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

December 22, 2020

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United States of America has responded to the motion pursuant to the Court's Show Cause Order. Movant has filed a supplement to his motion. For the reasons set forth below, the Motion to Vacate is denied.

FACTUAL HISTORY

The factual history of this matter is set out by respondent in its response.

PROCEDURAL HISTORY

Movant was charged on November 29, 2017 by a federal grand jury with with possessing with the intent to distribute cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) ("Count One"); possessing a firearm in furtherance of the drug-trafficking crime charged in Count One, in violation of 18 U.S.C § 924(c) ("Count Two"); and possessing a firearm after having been convicted previously of a felony crime punishable by a term of imprisonment exceeding one year, in violation of 18 US.C. § 922(g)(1)("Count Three").

On May10, 2018, Movant pled guilty to Count Three of the Indictment, which charged:

COUNT THREE

The Grand Jury charges that:

On or about October 25, in the City of St. Louis, within the Eastern District of Missouri,

JURMONT CLARK,

the Defendant herein, having been previously convicted of a felony crime punishable by a term of imprisonment exceeding one year under the laws of the State of Missouri, did knowingly and intentionally possess one or more firearms to wit: a Taurus make, International model .40 caliber semi-automatic pistol bearing serial number S1W76842, which traveled in interstate or foreign commerce prior to being in the defendant's possession.

In violation of Title 18, United States Code, Section 922(g)(1).

Movant entered a Guilty Plea Agreement in which he pled guilty to Count Three of the Indictment in exchange for dismissal by Respondent of Counts One and Two at sentencing.

Movant was sentenced on August 9, 2018. The Court imposed a term of imprisonment of 57 months to run consecutively to the parole revocation matter inDocket No. 1122-CR05760-01. The Court further imposed a term of two years supervised release.

Movant did not appeal his conviction or sentence.

CLAIMS FOR RELIEF

Movant sets out two grounds for relief in his Motion: Counsel was ineffective for not advising Movant that his federal sentence could be served consecutive to his yet to be imposed sentence for violating his state parole and that he would not receive credit for time spent in pretrial custody; ground two: Movant's guilty plea was invalid because he was not advised of the element of the offense of being a felon in possession of a firearm that he knew that he had been convicted of an offense punishable by imprisonment for more than one year presumably based on Rehaif v. United States, ___ U.S. ___, 139 S.Ct. 2191 (2019). In his supplement, Movant asks the Court to consider United States v. Gary, No. 954 F.3d 194 (4^th Cir. 2020).

STANDARD FOR RELIEF UNDER 28 U.S.C. §2255

A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on 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 thesentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. In order to obtain relief under § 2255, the movant must allege a violation constituting "'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).

Right to Evidentiary Hearing

The Court must hold an evidentiary hearing to consider claims in a § 2255 motion "'[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255). Thus, a movant is entitled to an evidentiary hearing "'when the facts alleged, if true, would entitle [the movant] to relief.'" Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim "without an evidentiary hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Shaw, 24 F.3d at 1043 (citing Larson v. United States, 905 F.2d 218, 220-21 (8th Cir. 1990)). Since the Court finds that Movant's claims can be conclusively determined based upon the parties' filings and the records of the case, no evidentiary hearing will be necessary.

Standard for Ineffective Assistance of Counsel

"The standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.E.2d 674 (1984), provides the framework for evaluating [Movant's] ineffective-assistance-of-counsel claim." Anderson v. United States, 762 F.3d 787, 792 (8th Cir. 2014). [Movant] "must show that his counsel's performance was deficient and that [he] suffered prejudice as a result" to prove a violation of his Sixth Amendment rights. Id.

"Deficient performance is that which falls below the range of competence demanded of attorneys in criminal cases." Bass v. United States, 655 F.3d 758, 760 (8th Cir. 2011) (internal quotation omitted). "Strickland sets a 'high bar' for unreasonable assistance." Love, 949 F.3d at 410 (quoting Buck v. Davis, 137 S. Ct. 759, 775 (2017)). Only a performance "outside the wide range of reasonable professional assistance" is constitutionally deficient. Id. (internal quotation omitted). "We make every effort to eliminate the distorting effects of hindsight and consider performance from counsel's perspective at the time." Id. (internal quotation omitted).

"Prejudice requires the movant to establish '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.' " Bass, 655 F.3d at 760 (quoting Strickland, 446 U.S. at 694).

O'Neil v. United States of Am., 966 F.3d 764, 770-71 (8th Cir. 2020).

It is well-established that a petitioner's ineffective assistance of counsel claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal. United States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009). The burden of demonstrating ineffective assistance of counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.2003).

Both parts of the Strickland test must be met in order for an ineffective assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749, 753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires a "showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment". Id. Review of counsel's performance by the court is highly deferential, "and the Court presumes counsel's conduct falls within the wide range of reasonable professional assistance". Id. The court does not second-guess trial strategy or rely on the benefit of hindsight, id., and the attorney's conduct must fall below an objective standard of reasonableness to be found ineffective, United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged deficient performance) would have been rejected, counsel's performance is not deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to "eliminate the distorting effects of hindsight" by examining counsel's performance from counsel's perspective at the time of the alleged error. Id.

The second part of the Strickland test requires that the movant show that he was prejudiced by counsel's error, and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different". Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at 694). A reasonable probability is a probability sufficient to undermine confidencein the outcome. Strickland, 466 U.S. at 694. When determining if prejudice exists, the court "must consider the totality of the evidence before the judge or jury". Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).

The first prong of the Strickland test, that of attorney competence, is applied in the same manner to guilty pleas as it is to trial convictions. The prejudice prong, however, is different in the context of guilty pleas. Instead of merely showing that the result would be different, the defendant who has pled guilty must establish that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial". Hill v. Lockhart, 474 U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.

Ground One

Movant claims counsel was ineffective for not telling him of the possibility of consecutive sentences and no credit for time served. Movant's claim is without merit. Movant admitted that he and his attorney reviewed the PreSentence Investigation Report, which specifically advised him of the possibility that his sentence would be imposed consecutively. Movant confirmed during the plea hearing that no promises were made to him with regard to the sentence he would receive. The Court advised Movant of the maximum sentence he could receive, 10 years. Movant received a sentence within that range.

With respect to Mov...