USA v. Foster

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF/RESPONDENT
V. 	CASE NO. 5:19-cr-50037-TLB-MEF-1
CHARLIE FOSTER 	DEFENDANT/MOVANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court is Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody filed on August 14, 2023.1 	(ECF No. 50).
Defendant simultaneously filed a Memorandum Brief in support of his § 2255 motion. (ECF No.
50-1). The United States filed its response on September 27, 2023. (ECF No. 53). Counsel was
appointed to represent Defendant on March 6, 2024, and an evidentiary hearing was held on July
26, 2024. (ECF Nos. 56, 65). The matter is ready for report and recommendation.
I. 	BACKGROUND
On May 8, 2019, Defendant, Charlie Foster (“Foster”), was named in an Indictment
charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). (ECF No. 1). He was arrested on June 3, 2019, and appeared for arraignment on
June 5, 2019, entering a not guilty plea to the Indictment. 	(ECF Nos. 12, 17). 	Mr. Joe Alfaro
(“Alfaro”), an Assistant Federal Public Defender (“AFPD”), was appointed to represent Foster.
1 The motion was received and docketed on August 21, 2023, but Foster declared under penalty
of perjury that he placed the motion in the prison mailing system on August 14, 2023, so by virtue
of the “prison mailbox rule” it is considered filed on that date. Rule 3(d) of the Rules Governing
Section 2255 Proceedings.
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 1 of 20 PageID #:
<pageID>

2
(ECF Nos. 12, 14).
Foster filed a Motion to Suppress on August 26, 2019. 	(ECF No. 20). 	He argued the
arresting officer (1) lacked probable cause to initiate a traffic stop and (2) did not have reasonable
suspicion to extend the traffic stop. 	(Id.). 	The motion was denied by Memorandum Order and
Opinion entered on September 20, 2019. (ECF No. 23).
On October 15, 2019, Foster appeared with counsel before the Hon. Timothy L. Brooks,
United States District Judge, for a change of plea hearing. 	(ECF Nos. 26, 44). 	A written Plea
Agreement was presented to the Court, in which Foster agreed to plead guilty to the one count
Indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). (ECF No. 27, ¶ 1). Foster’s guilty plea was made pursuant to Fed. R. Crim. P. 11(a)(2),
and he reserved the right to appeal from the Court’s denial of his motion to suppress. (Id., ¶ 2).
Relevant here, Foster acknowledged the penalty could be enhanced by statute if the Court
determined predicate offenses qualified him as an armed career criminal. (ECF No. 44, pp. 10-
12). The Court explained that the maximum penalty for the felon-in-possession charge is not more
than 10 years of imprisonment, but that, if the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), applied, the statutory sentencing range is 15 years to life imprisonment. (Id.). Foster
acknowledged his understanding. The Court determined that Foster’s guilty plea was voluntary
and supported by an independent factual basis, his guilty plea was accepted, and the Court deferred
approval of the Plea Agreement pending completion of a presentence report. (ECF Nos. 26, 44).
An initial Presentence Investigation Report (“PSR”) was prepared by the United States
Probation Office on December 12, 2019. (ECF No. 28). The Government had no objections. (ECF
No. 31). Foster made two objections, seeking only to correct his mailing address and the spelling
of his father’s name. (ECF No. 32).
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 2 of 20 PageID #:
<pageID>

3
In an Addendum to the final PSR, the Probation Officer noted making the requested
revisions in response to Foster’s objections. 	(ECF No. 32-1). 	The final PSR, along with the
Addendum and a letter of support from Foster’s father, was submitted to the Court on January 3,
2020. (ECF Nos. 33, 33-1, 33-2). Pursuant to U.S.S.G. § 2K2.1(a)(2), Foster’s offense called for
a base offense level of 24. (ECF No. 33, ¶ 23). Because he possessed a firearm in connection with
another felony offense, a four-level enhancement was assessed under U.S.S.G. § 2K2.1(b)(6)(B),
and this resulted in an adjusted offense level of 28. (Id., ¶¶ 24, 28). Having determined that Foster
was an armed career criminal under 18 U.S.C. § 924(e), his offense level was raised to 34. (Id., ¶
29). 	A three-level reduction for acceptance of responsibility was given. 	(Id., ¶¶ 30, 31). 	This
reduced Foster’s total offense level to 31. 	(Id., ¶ 32). 	Foster’s extensive criminal history,
beginning at age 19 and spanning 13 pages of the PSR, resulted in a criminal history score of 25,
but two additional points were assessed because he was under a criminal justice sentence at the
time of the instant offense, resulting in a total criminal history score of 27, placing him in criminal
history category VI. (Id., ¶¶ 76-78). Criminal history category VI was also reported pursuant to
U.S.S.G. § 4B1.4(c) since Foster was determined to be an armed career criminal. (Id., ¶ 79). The
statutory minimum term of imprisonment for the offense of conviction was 15 years with a
maximum term of life. (Id., ¶ 124)2. Based upon a total offense level of 31 and a criminal history
category of VI, Foster’s advisory guidelines imprisonment range was reported to be 188 to 235
months. (Id., ¶ 125).
Foster appeared with counsel for sentencing on January 28, 2020. 	(ECF Nos. 35, 45).
2 The PSR states: “The maximum term of imprisonment is 15 years and the maximum term of
imprisonment is life. 	18 U.S.C. § 924(e)(1).” 	(ECF No. 33, ¶ 124) (emphasis added). 	This is
clearly a typographical error; the statutory range of imprisonment under 18 U.S.C. § 924(e)(1) is
a mandatory minimum of 15 years with a maximum of life imprisonment.
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 3 of 20 PageID #:
<pageID>

4
Upon inquiry by the Court, Foster stated that he continued to be satisfied with his attorney. (ECF
No. 45, p. 2). The Court determined that Foster had an opportunity to read and discuss the PSR
and revisions with his counsel. (Id. at 4). The Court then confirmed that the final PSR resolved
all of Foster’s objections to the initial PSR, the final PSR was adopted and approved without any
additional revisions or changes, and the Court gave final approval to the Plea Agreement. (Id. at
4-5).
The Court explained how the Guidelines calculation was arrived at, stating that Foster’s
adjusted offense level was 34, and the Government’s motion for a third level of downward
adjustment for Foster’s acceptance of responsibility was granted, taking Foster’s total offense level
down to 31. 	(ECF No. 45, pp. 5-8). 	Foster’s lengthy and substantial criminal history was
reviewed, placing Foster in the highest criminal history category of VI. (Id. at 8-9). The Court
summarized the Guidelines range for a total offense level of 31 and a criminal history category of
VI, finding the advisory range of imprisonment to be 188-235 months. 	(Id. at 9). 	The Court
explained the purposes of sentencing and the § 3553(a) factors to be considered. (Id. at 10-11).
Following argument from counsel and a brief statement from Foster, the Court acknowledged and
discussed the § 3553(a) factors, both aggravating and mitigating, finding that despite numerous
opportunities to learn from his criminal history, “you have not been deterred … so this is going to
be a substantial sentence.” 	(Id. at 22-31). 	The Court imposed a sentence of 210 months
imprisonment, followed by three years of supervised release, a $9,900.00 fine, and a $100 special
assessment. (ECF No. 35; ECF No. 45, pp. 32-35). Judgment was entered the next day on January
29, 2020. (ECF No. 36).
Foster timely appealed to the Eighth Circuit Court of Appeals. (ECF No. 38). He argued
the District Court erred in denying his Motion to Suppress. 	(ECF No. 47-1). 	Finding that a
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 4 of 20 PageID #:
<pageID>

5
reasonable police officer could have believed on initial observation that the cracked windshield of
the vehicle constituted a safety defect, even if that initial observation turned out to be mistaken,
the Eighth Circuit held that the officer’s mistake of fact was an objectively reasonable one, and
thus Foster was not unreasonably seized when the officer conducted the traffic stop. (Id. at 4-6).
Foster also argued that the officer unreasonably extended the traffic stop by asking for
identification, but that argument was foreclosed by Eighth Circuit precedent. (Id. at 6). The Eighth
Circuit’s Opinion and Judgment affirming Foster’s conviction and sentence were entered on
October 12, 2021. (ECF Nos. 47-1, 47-2). The Mandate from the Eighth Circuit was issued on
December 8, 2021. (ECF No. 47). Foster filed a Petition for a Writ of Certiorari in the United
States Supreme Court on March 1, 2022. (ECF No. 48). The petition was denied by the Supreme
Court on March 28, 2022. (ECF No. 49). Foster v. United States, 142 S.Ct. 1434 (2022).
On August 14, 2023, Foster filed his § 2255 motion now before the Court. (ECF No. 50).
Arguing that he did not qualify as an Armed Career Criminal under the ACCA, Foster asserts
claims of ineffective assistance of counsel for (1) failing to properly advise him of his status under
the ACCA, and (2) in failing to challenge his prior Arkansas drug convictions as predicate offenses
under the ACCA. (ECF Nos. 50, 50-1). The United States responded to the motion on September
27, 2023. (ECF No. 53). Foster sought and obtained leave to file a reply (ECF Nos. 54, 55), but
he did not file a reply. The Court appointed counsel, Kenneth Osborne, to represent the Defendant
on March 6, 2024, and an evidentiary hearing was held on July 26, 2024. (ECF Nos. 56, 65).
II. 	DISCUSSION
“A prisoner in custody under sentence ... 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
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 5 of 20 PageID #:
<pageID>

6
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(a). “If
the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral attack, or that there has been such a
denial or infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge
the prisoner or resentence him or grant a new trial or correct the sentence as may appear
appropriate.” 28 U.S.C. § 2255(b). A thorough review of Foster’s § 2255 motion and the files
and records of this case conclusively shows that he is not entitled to relief, and the denial and
dismissal of his § 2255 motion with prejudice is recommended.
A. 	Timeliness
The Government first argues Foster’s § 2255 motion should be denied because it was filed
outside of the one-year limitation period. (ECF No. 51, pp. 5-7). It was.
A one-year period of limitation applies to motions under 28 U.S.C. § 2255. This period
runs 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(f).
Under § 2255(f)(1), the limitation period runs from the date when the conviction becomes
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 6 of 20 PageID #:
<pageID>

7
final. “Finality attaches when [the Supreme Court] affirms a conviction on the merits on direct
review or denies a petition for writ of certiorari, or when the time for filing a certiorari petition
expires.” Clay v. United States, 537 U.S. 522, 527 (2003) (internal citations omitted). Here, the
Supreme Court denied Foster’s petition for a writ of certiorari on March 28, 2022. (ECF No. 49).
His conviction became “final” on that date and the one-year period of limitation began to run. Any
motion under § 2255 was due on or before March 28, 2023. Foster’s § 2255 motion was filed on
August 14, 2023 (ECF No. 50), over four months after the limitation period had expired.
Accordingly, unless either statutory or equitable tolling applies, Foster’s § 2255 Motion
was not timely filed and should be dismissed.
1. 	Statutory Tolling
The Government contends there is no statutory basis for tolling the limitations period.
Since Foster does not allege that any governmental action in violation of the Constitution or laws
of the United States impeded the timely filing of a § 2255 motion, the Government asserts the
provisions of § 2255(f)(2) do not apply. The Court agrees.
Next, pursuant to § 2255(f)(3), the one-year limitation period may be tolled until 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. 	Foster, though, relies on United States v. Lee, 2023 U.S. Dist. LEXIS 26735 (E.D.AR.
Feb. 16, 2023) (upholding a defendant’s objection to being designated an Armed Career Criminal
in the PSR based on two separate convictions for possession of methamphetamine or cocaine with
purpose to deliver and finding that Arkansas’s definition of methamphetamine is broader than its
federal counterpart), but this is not a decision of the United States Supreme Court made retroactive
to cases on collateral review, and it affords Foster no relief from his untimely filing.
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 7 of 20 PageID #:
<pageID>

8
And while § 2255(f)(4) permits tolling the limitations period to the date on which the facts
supporting the claim or claims presented could have been discovered through the exercise of due
diligence, the “fact” relied upon by Foster relates to when he learned of the Lee case, supra. He
testified at the evidentiary hearing that he first learned of the Lee decision in August 2023, which
was after his one-year limitations period had expired. But § 2255(f)(4) may not be used to extend
or reopen the period for filing a § 2255 motion based on new legal authority; instead, “subsequent
interpretations of the law ‘can be the basis of delay in filing a § 2255 motion only in accordance
with § 2255(f)(3).’” Sun Bear v. United States, 644 F.3d 700, 702 n. 5 (8th Cir. 2011) (en banc)
(quoting district court opinion). 	Thus, § 2255(f)(4) does not apply to extend or reopen the
limitations period in the instant case.
2. 	Equitable Tolling
That no statutory grounds for tolling apply does not end the inquiry. The Eighth Circuit
recognizes that the doctrine of equitable tolling is available to a § 2255 movant, but only “under
limited conditions, for example, where extraordinary circumstances beyond a prisoner’s control
prevent the timely filing.” See Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001); United States
v. Martin, 408 F.3d 1089, 1092 (8th Cir. 2005). 	The use of equitable procedures should be
infrequent, see Flanders v. Graves, 299 F.3d 974, 976 (8th Cir. 2002), and will not be applied if
the habeas movant has not diligently pursued his rights, see Finch v. Miller, 491 F.3d 424, 427
(8th Cir. 2007). “Equitable tolling is an exceedingly narrow window of relief.” Maghee v. Ault,
410 F.3d 473, 476 (8th Cir. 2005).
Here, Foster has not alleged that any extenuating circumstances beyond his control
prevented a timely filing, nor has he even relied on the doctrine of equitable tolling. He does not
claim anything the Government has done made it impossible or difficult for him to timely file his
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 8 of 20 PageID #:
<pageID>

9
§ 2255 motion. He does not allege some action of the Government lulled him into inaction. He
does not refer to any extraordinary circumstances, attributable to the Government or to any other
cause, that prevented him, in the exercise of reasonable diligence, from discovering the facts upon
which his claims are based soon enough to enable him to bring a timely habeas petition.
Foster’s only position is that he learned of the Lee case, upon which he relies for relief, in
August 2023, after his one-year limitations period had already passed. The Court notes, however,
that Lee was decided on February 16, 2023, approximately six weeks before the expiration of
Foster’s limitations period. Foster’s failure to timely file his § 2255 Motion is his fault alone. He
has failed to allege and establish any factual basis for his case to fit within the “exceedingly narrow
window of relief” equitable tolling provides.
Moreover, Foster’s circumstances do not fit within the demanding standard of the actual
innocence gateway to excuse his untimely habeas filing. In McQuiggin v. Perkins, 569 U.S. 383,
386 (2013), the Supreme Court recognized an additional exception to the one-year statute of
limitations for prisoners asserting a claim of actual innocence. Under this exception “a credible
showing of actual innocence may allow a prisoner to pursue his constitutional claims … on the
merits notwithstanding the existence of a procedural bar to relief.” Id. at 392. The Court stressed
that this is a “demanding” standard, and the gateway “should open only when a petition presents
‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial
…’” Id. at 401. The Court also notes that “actual innocence” means factual innocence and not
mere legal insufficiency. 	Bousley v. United States, 523 U.S. 614, 623 (1998) (citing Sawyer v.
Whitley, 505 U.S. 333, 339 (1992)).
Foster urges that he is actually innocent of his enhanced sentence under the ACCA because,
under Lee, neither of his prior Arkansas drug convictions used to enhance his sentence are a
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 9 of 20 PageID #:
<pageID>

10
“serious drug offense” under the ACCA. To be clear, Foster does not contend he did not commit
the crime to which he pleaded guilty, nor has he alleged and shown factual innocence of either
prior state court drug offense used to enhance his federal sentence, so his claim presents a question
of legal insufficiency and not factual innocence.
Even so, the Eighth Circuit also recognizes an exception to threshold barriers for
considering habeas petitions based on the “manifest injustice” of an “illegal sentence.” Jones v.
Arkansas, 929 F.2d 375, 381 (8th Cir. 1991) (“It would be difficult to think of one who is more
‘innocent’ of a sentence than a defendant sentenced under a statute that by its very terms does not
even apply to the defendant.”); Lofton v. United States, 920 F.3d 572, 576-77 (8th Cir. 2019) (a
sentence carrying an illegal ACCA enhancement presented a “miscarriage of justice” that § 2255
permitted the court to correct, even though the claim was procedurally defaulted). 	But here, as
discussed below, there is no miscarriage of justice because at the time of his sentencing on January
28, 2020, Foster’s prior Arkansas drug convictions did qualify as “serious drug offenses” under
the ACCA and existing Eighth Circuit precedent.
Consequently, since no statutory tolling under § 2255(f) applies, there is no basis for
equitable tolling, Foster’s claims concern mere legal insufficiency and not factual innocence, and
his sentence does not present a manifest injustice, no exception from the one-year limitations
period saves the untimely filing of Foster’s § 2255 Motion.
Nevertheless, the undersigned will address the merits of Foster’s habeas claims below.
B. 	Standards Applicable to Ineffective Assistance of Counsel Claims
To prove a claim of ineffective assistance of counsel, a criminal defendant must
demonstrate 	both 	that 	counsel’s 	performance 	was 	deficient, 	and 	that 	counsel’s 	deficient
performance prejudiced the defense. 	Strickland v. Washington, 466 U.S. 668, 687 (1984). 	To
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 10 of 20 PageID #:
<pageID>

11
establish the deficient performance prong of the Strickland test, one must show that counsel’s
representation fell below the “range of competence demanded of attorneys in criminal cases.” Id.
at 688. Review of counsel’s performance is highly deferential, and there is a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance. Id. at 689.
Moreover, “[s]trategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” 	United States v. Rice, 449 F.3d 887, 897 (8th
Cir. 2006) (quoting Strickland, 466 U.S. at 690). Courts also “do not use hindsight to question
counsel’s performance,” but instead must analyze it according to counsel’s situation at the time of
the allegedly incompetent act or omission. Kenley v. Armontrout, 937 F.2d 1298, 1303 (8th Cir.
1991). If one fails to establish deficient performance by counsel, the court need proceed no further
in its analysis of an ineffective assistance of counsel claim. 	United States v. Walker, 324 F.3d
1032, 1040 (8th Cir. 2003).
To establish the prejudice prong of the Strickland test, one must demonstrate “that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. The United States Supreme Court has clarified that the
proper prejudice analysis is whether “counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” 	Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)
(quoting Strickland, 466 U.S. at 687).
C. 	Ineffective Assistance Claims Regarding Foster’s Status Under the ACCA
Foster claims he received ineffective assistance of counsel regarding his status as an Armed
Career Criminal under the ACCA, stating that if he had known he did not qualify as an Armed
Career Criminal under the ACCA he would not have pleaded guilty and would have insisted on
going to trial. (ECF No. 50, p. 4).
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 11 of 20 PageID #:
<pageID>

12
Pursuant to a written Plea Agreement, Foster pleaded guilty to being a felon in possession
of a firearm on October 15, 2019. (ECF Nos. 26, 27, 44). The Court determined Foster was fully
competent and capable of entering an informed plea; that he was aware of the nature of the charge
and the consequences of a guilty plea; that his guilty plea was both knowing and voluntary; and
that it was supported by an independent basis in fact containing all the essential elements of the
offense. (ECF No. 26; ECF No. 44, p. 23). A presentence investigation was ordered. (ECF No.
26; ECF No. 44, p. 24).
In the initial PSR issued on December 12, 2019 (ECF No. 28), it was reported that Foster
had the following relevant prior convictions:
• 	Delivery of a Controlled Substance (Methamphetamine) (two counts),
occurring on July 25, 2007, and August 13, 2007. 	Washington County
Circuit Court, Fayetteville, AR. 	Docket No. CR-07-2088. 	Sentenced on
February 11, 2008, to 180 months incarceration, with an additional 180
months Suspended Imposition of Sentence, concurrent with CR-07-2340
and 	CR-07-2276. 	According 	to 	court 	records, 	the 	defendant 	sold
methamphetamine to a confidential informant working for the Drug Task
Force on the above-mentioned dates. (ECF No. 28, ¶ 59).
• 	Delivery of a Controlled Substance (Methamphetamine), occurring on
August 28, 2007. 	Washington County Circuit Court, Fayetteville, AR.
Docket No. CR-07-2340. Sentenced on February 11, 2008, to 180 months
incarceration, with an additional 180 months Suspended Imposition of
Sentence, concurrent with CR-07-2088 and CR-07-2276. 	According to
court records, the defendant sold methamphetamine to a confidential
informant working for the Drug Task Force on the above-mentioned date.
(Id., ¶ 63).
Foster offered no objections to these prior Arkansas convictions. (ECF No. 32). “A fact
in a PSR to which the defendant has not specifically objected is a fact admitted by the defendant.”
See United States v. Abrica-Sanchez, 808 F.3d 330, 334 (8th Cir. 2015) (quoting United States v.
White, 447 F.3d 1029, 1032 (8th Cir. 2006)).
The initial PSR also reported that the guideline for 18 U.S.C. § 922(g)(1) offenses is found
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 12 of 20 PageID #:
<pageID>

13
in USSG § 2K2.1 and called for a base offense level of 24 if the defendant committed any part of
the instant offense after sustaining at least two felony convictions of either a crime of violence or
controlled substance offense. (ECF No. 28, ¶ 23). Further, it was reported that a defendant who
is subject to an enhanced sentence under 18 U.S.C. § 924(e) is an armed career criminal, pursuant
to USSG § 4B1.4(a), and if the defendant used or possessed the firearm in connection with either
a crime of violence, as defined in USSG §4B1.2(a), or a controlled substance offense, as defined
in USSG §4B1.2(b), the offense level is 34. (Id., ¶ 23). Again, Foster offered no objections. (ECF
No. 32).
Pursuant to 18 U.S.C. § 924(e)(2)(A)(ii), a “serious drug offense” is “an offense under
State law, involving manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance …, for which a maximum term of imprisonment of ten years or
more is prescribed by law.”
Foster’s prior Arkansas drug convictions were for violations of Ark. Code Ann. § 5-64-
401 (repealed 2011), as reflected in the Judgment and Commitment Order. (ECF No. 53-1).3 As
noted by the Government in its Response, Ark. Code Ann. § 5-64-401(a) (2007) made it unlawful
for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled
substance, but § 5-64-401(c) (2007) made it unlawful for any person to merely possess a controlled
substance. Therefore, the version of Ark. Code Ann. § 5-64-401 in effect at the time of Foster’s
convictions on February 11, 2008, was overbroad, as subsection (c) criminalized the mere
possession of a controlled substance, thereby criminalizing more conduct than the conduct set forth
in the federal definition. The Eighth Circuit, however, held that Ark. Code Ann. § 5-64-401 is a
3 The Judgment and Commitment Order was also introduced as Government Exhibit 3 at the
evidentiary hearing.
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 13 of 20 PageID #:
<pageID>

14
“divisible” statute, meaning that the subsection (a) and subsection (c) offenses are separate
offenses, with each having its own punishment. United States v. Meux, 918 F.3d 589, 591 (8th
Cir. 2019). As such, courts apply a modified categorial approach and may consider the charging
document, plea agreement, plea colloquy transcript, or some comparable judicial record of this
information to determine under which portion of the statute the conviction arose. 	Shepard v.
United States, 544 U.S. 13, 26 (2005).
In the instant case, the Judgment and Commitment Order shows that on February 11, 2008,
Foster pleaded guilty in the Circuit Court of Washington County, Arkansas, in Docket No. 07-
2088-1, to Delivery of a Controlled Substance (Meth) (two counts), in violation of Ark. Code Ann.
§ 5-64-401, for offenses committed on July 25, 2007, and August 13, 2007, and in Docket No. 07-
2340-1, to Delivery of a Controlled Substance (Meth), in violation of Ark. Code Ann. § 5-64-401,
for an offense committed on August 28, 2007, and he was sentenced to 180 months imprisonment
with an additional 180 months suspended imposition of sentence. 	(ECF No. 53-1; Government
Exhibit 3). These offenses were listed as Class Y felonies, which exposed Foster to imprisonment
for not less than 10 years nor more than 40 years, or life. (Id.). The Judgment and Commitment
Order does not, however, specify under which subsection of the statute Foster was convicted.
The 	Government 	also 	introduced 	Shepard 	documents 	at 	the 	evidentiary 	hearing.
Government Exhibit 1, being a Felony Information filed on September 14, 2007, in Docket No.
CR-2007-2088-1, shows that Foster was charged with two counts of Delivery of a Controlled
Substance (Methamphetamine) (Y Felony), in violation of Ark. Code Ann. § 5-64-401, for sales
of methamphetamine to a confidential informant on July 25, 2007, and on August 13, 2007.
Government Exhibit 2, being a Felony Information filed on October 25, 2007, in Docket No. CR-
2007-2340-1, shows that Foster was charged with one count of Delivery of a Controlled Substance
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 14 of 20 PageID #:
<pageID>

15
(Methamphetamine) (Y Felony), in violation of Ark. Code Ann. § 5-64-401, for a sale of
methamphetamine to a confidential informant on August 28, 2007. 	As with the Judgment and
Commitment Order, neither of these charging documents specifies under which subsection of the
statute Foster was charged.
While neither the Judgment and Commitment Order nor the charging documents identify
the specific subsection of Ark. Code Ann. § 5-64-401 Foster was charged with and convicted of,
the Court can reasonably infer from these documents that Foster was charged with, pleaded guilty
to, and was convicted of, the delivery of a controlled substance (methamphetamine), a Class Y
felony, pursuant to Ark. Code Ann. § 5-64-401(a), and not with simple possession of a controlled
substance as prohibited in Ark. Code Ann. § 5-64-401(c). And the Eighth Circuit in Meux, 918
F.3d at 591, held that a conviction under Ark. Code Ann. § 5-64-401(a) qualifies as a predicate
offense under the Armed Career Criminal Act. 	Thus, at the time of Foster’s guilty plea in the
instant case on October 15, 2019, and pursuant to Meux decided seven months prior, his previous
Arkansas convictions for delivery of a controlled substance (methamphetamine) constituted
“serious drug offenses” under the ACCA.
During the evidentiary hearing, Foster testified that his counsel, AFPD Joe Alfaro,
explained the ACCA enhancement to him, but he complained that no objections were made to the
PSR, nor any challenge made to the ACCA enhancement. For his part, AFPD Alfaro testified he
is familiar with the ACCA, which he described as “a fairly complicated area of the law,” and which
has seen some changes over the years. He stated he went over Foster’s prior convictions with him,
and he told Foster on four occasions that he would qualify for the ACCA enhancement. He was
familiar with the Meux case, and at the time he thought Foster’s prior convictions would count
under the ACCA.
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 15 of 20 PageID #:
<pageID>

16
Any reasonable investigation by counsel into the matter would have shown counsel that
the Eighth Circuit in Meux held that Ark. Code Ann. § 5-64-401 is a divisible statute subject to the
modified categorical approach; that a review of the Shepard documents would establish that Foster
had three prior convictions for delivery of a controlled substance (methamphetamine) pursuant to
Ark. Code Ann. § 5-64-401(a), committed on occasions different from one another; and that those
prior convictions qualified as predicate “serious drug offenses” under the ACCA. AFPD Alfaro
came to that conclusion based on existing law and properly informed Foster of his status under the
ACCA. Foster has, therefore, failed to show that his counsel provided him with erroneous advice
concerning his status as an armed career criminal under the ACCA, and that counsel’s performance
fell below the “range of competence demanded of attorneys in criminal cases” on this issue.
Further, Foster’s right to be informed of the Court’s sentencing options is no greater than
the provisions of Fed. R. Crim. P. 11(c)(1), which requires only that the Court inform a defendant
of the applicable mandatory minimum and maximum sentences. 	United States v. Quiroga, 554
F.3d 1150, 1155 (8th Cir. 2009). The Court did so inform Foster during his change of plea hearing
held on October 15, 2019. 	The Court explained to Foster that whether a mandatory minimum
sentence applied to his case depended on his prior criminal history, and the Court then informed
Foster what the statutory maximum sentence would be if no enhanced penalties applied (10 years
imprisonment), and what the statutory mandatory minimum and maximum sentence would be if
the enhanced penalties did apply (mandatory minimum of 15 years imprisonment and a maximum
of life). (ECF No. 44, pp. 10-12). Foster told the Court he understood. (Id. at 11-12). The Court
pointed out that, “no one in the courtroom at this point knows what your sentence is going to be in
this case, and we don’t have enough information yet - - certainly the Court does not - - to make
that decision.” 	(Id. at 15). 	See Thomas v. United States, 27 F.3d 321, 326 (8th Cir. 1994)
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 16 of 20 PageID #:
<pageID>

17
(defendant not denied effective assistance of counsel for failing to inform defendant of the
possibility of an enhanced sentence as a career offender; at the plea hearing it was impossible to
know, or even predict, whether defendant would be sentenced as career offender).
Important to the analysis in this § 2255 proceeding, the Court “must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of
the time of counsel’s conduct.” 	Strickland, 466 U.S. at 690. 	On federal habeas review, courts
must examine counsel’s challenged conduct under the circumstances prevailing and given the state
of the law as it existed at the relevant time and avoid making judgments based on hindsight. Fields
v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (citing Strickland, 466 U.S. at 688).
“[C]ounsel [is] not required to make meritless objections under then-existing precedent, anticipate
changes in the law, or raise every potentially meritorious claim.” United States v. Holdford, No.
4:18-cr-00278 KBG, 2024 WL 4350792, *3 (E.D. Ark. Sept. 30, 2024) (internal citations omitted).
At the time of Foster’s guilty plea and sentencing, the state of existing law concerning
whether a conviction under A.C.A. § 5-64-401(a) counted as a predicate offense under the ACCA
was set forth in Meux, in which the Eighth Circuit held that a conviction under that statute
constituted a “serious drug offense” for purposes of the ACCA. As previously mentioned, AFPD
Alfaro testified he was familiar with Meux, and at the time of Foster’s guilty plea and sentencing,
he thought Foster’s prior convictions under A.C.A. § 5-64-401(a) would count under the ACCA.
The argument now presented by Foster - that his convictions under Ark. Code Ann. § 5-
64-401(a) should not count as a “serious drug offenses” for purposes of ACCA enhancement
because the Arkansas definition of methamphetamine is overbroad when compared to federal law
- is based on a district court decision, Lee, made over three years after Foster’s sentencing. The
Court recognizes the current wave of Eighth Circuit decisions involving a comparison of the
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 17 of 20 PageID #:
<pageID>

18
definitions of cocaine, MDMA, and methamphetamine which, along with Lee, tend to support the
argument Foster is now making. 	See, e.g., United States v. Perez, 46 F.4th 691 (8th Cir. 2022)
(defendant’s prior state convictions for delivery of controlled substance under Iowa law were not
“serious drug offenses” under the ACCA because Iowa’s definition of cocaine, which included
Ioflupane, was overbroad); United States v. Owen, 51 F.4th 292 (8th Cir. 2022) (defendant’s two
prior convictions for selling cocaine under Minnesota law did not qualify as predicate “serious
drug offenses” under the ACCA because Minnesota’s definition of cocaine, which covered “salts
and isomers of cocaine,” was unambiguously much broader than federal law, which criminalized
only optical and geometric isomers of cocaine); United States v. Myers, 56 F.4th 595 (8th Cir.
2022) (defendant’s Missouri conviction for sale of cocaine was not a “serious drug offense” for
ACCA purposes because Missouri law defined cocaine to include all isomers, including positional,
optical, and geometric, whereas federal law criminalized only optical and geometric isomers);
United States v. Heard, 62 F.4th 1109 (8th Cir. 2023) (defendant’s prior drug convictions
involving MDMA were not “serious drug offenses” under the ACCA because Minnesota law
criminalized MDMA isomers more broadly than federal law); United States v. Henry, No. 22-
1036, 2023 WL 3861791 (8th Cir. 2023) (district court’s determination that defendant’s prior
convictions were not “serious drug offenses” under the ACCA affirmed; Minnesota law defining
methamphetamine “isomers” was overbroad compared to federal law); and Lyles v. United States,
Crim. No. 6:19-CR-03025-MDH, 2024 WL 203331 (W.D. MO Jan. 18, 2024) (relying on Myers,
defendant’s prior conviction for manufacturing methamphetamine under Missouri law not a proper
predicate for ACCA enhancement because the Missouri definition of methamphetamine is broader
than the federal definition). But Foster does not receive the benefit of these later decided cases in
this § 2255 habeas proceeding because the Court must assess the reasonableness of counsel’s
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 18 of 20 PageID #:
<pageID>

19
conduct at the time of counsel’s conduct, and as discussed above, the Eighth Circuit’s decision in
Meux was controlling law at the relevant time. See Holdford, 2024 WL 4350792 at *4, n. 2. And
an attorney’s failure to anticipate changes in the law does not constitute constitutionally ineffective
assistance. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999).
When a sentencing argument has no merit, there is no ineffective assistance of counsel in
declining to advance it. 	Haney v. United States, 962 F.3d 370, 374 (8th Cir. 2020). 	Foster’s
argument that his prior Arkansas drug convictions were not “serious drug offenses” for purposes
of ACCA enhancement had no merit at the time of his guilty plea and sentencing as Meux was
controlling law, and the decision of counsel not to make that argument, or to anticipate a change
in the law, cannot be faulted.
Accordingly, as Foster has not shown constitutionally deficient performance by his
counsel, the Court need not address the prejudice element. Walker, 324 F.3d at 1040.
III. 	CERTIFICATE OF APPEALABILITY
A Certificate of Appealability may issue under 28 U.S.C.§ 2253 only if the applicant has
made a substantial showing of the denial of a constitutional right. A “substantial showing” is one
demonstrating that reasonable jurists could debate whether the petition should have been resolved
in a different manner or the issues presented deserved further proceedings even though the
petitioner did not prevail on the merits in the court considering his case. Slack v. McDaniel, 529
U.S. 473 (2000). 	While dismissal of Foster’s § 2255 Motion is recommended for the reasons
discussed above, the undersigned acknowledges that the issues presented may deserve further
proceedings even though Foster did not prevail on the merits, and the issuance of a Certificate of
Appealability would be appropriate.
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 19 of 20 PageID #:
<pageID>

20
IV. 	CONCLUSION
For the reasons and upon the authorities discussed above, Foster’s § 2255 Motion is
untimely, and his grounds for relief are unsupported by the record in this case.
It is, therefore, RECOMMENDED that Foster’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 50) be DISMISSED
with PREJUDICE.
It is further recommended that a request for a Certificate of Appealability be granted.
The parties have fourteen (14) days from receipt of this Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
written objections may result in waiver of the right to appeal questions of fact. The parties
are reminded that objections must be both timely and specific to trigger de novo review by
the district court.
DATED this 30th day of January 2025.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
Case 5:19-cr-50037-TLB Document 66 Filed 01/30/25 Page 20 of 20 PageID #:
<pageID>