USA v. Owen

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
KRYSTLE MARIE OWEN 	PETITIONER
v. 	Case No. 5:22-CR-50024-TLB-CDC
UNITED STATES OF AMERICA 	RESPONDENT
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
On October 8, 2024, Petitioner Krystle Owen (“Owen”), proceeding pro se, filed a Motion
to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 50). This matter
was referred to the undersigned for the purposes of making a Report and Recommendation1 and
for reasons explained below, it is recommended that Owen’s Motion be DENIED.
I. BACKGROUND
Owen was indicted by a federal grand jury on April 20, 2022, on three counts: (1)
conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2)
distribution of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and (3)
possession with intent to distribute fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). (ECF No. 1).
1 Pursuant to General Order 2024-05, filed on December 3, 2024, the Western District of Arkansas’
practices with respect to Section 2255 Motions was amended and General Order No. 22, dated
October 19, 2010, was superseded. 	The above-captioned matter was referred to a U.S. Magistrate
Judge for report and recommendation on October 8, 2024, prior to the district’s enactment of
General Order 2024-05. 	Recognizing the continued shortage of a district judge and increased
workloads, and considering the need for judicial efficiency, the Magistrate Judge did not seek
reassignment but enters this report and recommendation pursuant to General Order No. 22.
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Owen, incarcerated at that time in the Benton County Detention Center, was arrested on a
federal arrest warrant. Owen appeared for arraignment on May 10, 2022 (ECF No. 10), with her
retained counsel, Herb Southern (Southern). On September 16, 2022, after two continuances of
the trial date, Owen pled guilty to Count 2 of the Indictment – distribution of methamphetamine
on January 28, 2022. (ECF Nos. 18-19). On February 9, 2023, Owen was sentenced by Chief U.S.
District Judge Timothy L. Brooks to 137 months imprisonment, 3 years supervised release, a
$1,900 fine and $100 special assessment. (ECF Nos. 28, 29). On February 23, 2023, Southern
filed an appeal of Owen’s sentence. (ECF No. 31). After the undersigned determined Owen was
indigent (ECF No. 34), the Court of Appeals for the Eighth Circuit appointed Southern to continue
his representation of Owen, who filed an Anders brief. (ECF No. 37). On December 6, 2023, the
Court of Appeals issued its mandate, having affirmed Owen’s sentence on October 18, 2023. (ECF
Nos. 48, 48-1, 48-2). On May 24, 2024, Judge Brooks denied Owen’s Motion to Reduce Sentence
(ECF Nos. 47, 49), finding Owens ineligible for a reduction because her criminal history category
was unchanged after removal of status points. This pro se Motion to Vacate followed on October
8, 2024.
II. OWEN’S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Owen asserts multiple grounds for § 2255 relief. 	Owen first alleges that Southern was
ineffective when failing to file a suppression motion with respect to a search and seizure Owen
believes violated the Fourth Amendment. (ECF No. 50, Ground One). She next complains that
Southern was ineffective because he did not “fully inform” her of the consequences of accepting
the Plea Agreement including her “sentence exposure,” “possible enhancements” and “giving up
her rights.” Owen now explains she would have proceeded with a jury trial rather than a plea had
she understood these consequences. (ECF No. 50, Ground Two). Owen alleges that Southern did
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not review the Presentence Investigation Report (PSIR) wither or explain it to her, leaving her to
review it “alone in [her] cell.” 	(ECF No. 50, Ground Three). 	Owen says she prepared 15
objections to the PSIR, but Southern failed to file them as Owen had instructed and as Southern
had agreed. (ECF No. 50, Ground Four). Owen further complains that Southern failed to
investigate or prepare a “competent defense,” failed to challenge and/or conduct discovery, failed
to request laboratory testing of evidence, and refused to obtain “information regarding (sic) entire
accusations against” Owen. (ECF No. 50, Ground Five).
In support, Owen provides an Affidavit dated September 26, 2024. 	(ECF No. 50-1).
Therein, Owen avers that she and Southern agreed he would file a motion to suppress the evidence
from a February 22, 2022, traffic stop which Owen believed lacked probable cause, but that
Southern never filed the motion. Owen says she agreed to plead guilty to Count 2 (distribution of
methamphetamine established by a controlled buy) despite the lack of a suppression motion when
her counsel repeatedly advised the Government was considering a superseding indictment against
her; Owen describes that Southern “pressured [her] into taking the deal” to avoid additional
charges. (ECF No. 50-1, p. 1). Owen says she signed the Plea Agreement despite counsel never
explaining “any consequences of signing the plea agreement.” 	(ECF No. 50-1, pp. 1-2).
Subsequently, following the death of Southern’s wife, Owen says that Southern dropped off the
PSIR at the jail for her to review and to “write down everything that was incorrect.” Owen says
she asked Southern if he was well and/or wanted to withdraw from her case, describing in her
Affidavit that Southern was “mentally unstable in [her] conversation with him due to the loss of
his wife.” (ECF No. 50-1, p. 2). Owen says Southern told her he needed to “stay busy” and advised
Owen that he would get her criminal history category reduced to a Category III2 and reduce the
2 Owen’s Criminal History Category was Category VI. (ECF No. 41, p. 10).
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base offense level due to drug impurity.3 Owen says she prepared and provided Southern with “all
15 objections” to the PSIR. 	(ECF No. 50-1, p. 2). Owen describes that she was surprised, on
February 9, 2022, to learn that counsel predicted she would receive a 10-year sentence; that her
objections would not be considered; that no mitigating evidence would be presented; and that
relevant conduct from the traffic stop would be considered. (ECF No. 50-1, p. 2). Owen alleges
that Southern “abandoned [her] case at all the very critical stages” and that he was “ineffective
throughout the entire criminal process of [her] case.”
III. UNITED STATES’ RESPONSE
With respect to Grounds One and Five – that Southern failed to file a motion to suppress
and failed to investigate and prepare a defense, the Government argues that Owen’s guilty plea
forecloses both as guilty pleas waive all non-jurisdictional defenses. United States v. Stewart, 972
F.2d 216, 217 (8th Cir. 1992). Where a defendant pleads guilty, the focus of a collateral attack is
limited to the nature of counsel’s advice and the voluntariness of the plea. Bass v. United States,
739 F.2d 405, 406 (8th Cir. 1984) (citing Tollett v. Henderson, 411 U.S. 258, 266 (1973)). Citing
Lefkowitz v. Newsome, 420 U.S. 282, 288 (1975), the Government argues that the Plea Agreement
and the entire undisputed record fully support that Owen’s guilty plea was intelligently and
voluntarily made – with Owen affirming that Southern had fulfilled his duties as counsel and that
she was well-pleased with his legal services – thus barring any constitutional challenges to the
pretrial proceedings.
Moreover, says the Government, failure to file a motion to suppress does not automatically
demonstrate constitutionally ineffective assistance of counsel, Kimmelman v. Morrison, 477 U.S.
3 	Owen 	was 	found 	accountable 	for 	778.70 	kilograms 	of 	a 	converted 	drug 	weight
(methamphetamine and fentanyl). (ECF No. 25, ¶ 81) (ECF No. 41, p. 9). Owen’s offense level
was calculated to be 25. (ECF No. 41, p. 10).
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365, 384 (1986), and Owen’s Motion is entirely silent as to the legal grounds whereby counsel
could successfully challenge the traffic stop. 	And fatal to her claim of ineffective assistance is
illustration of any prejudice – the Government points out that even had Southern successfully
suppressed evidence from the February 22, 2022, traffic stop4 for trial, Judge Brooks was permitted
to consider the circumstances of the stop as relevant conduct at the time of sentencing. See United
States v. Tauil-Hernandez, 88 F.3d 576, 581 (8th Cir. 1996) (“Extending the exclusionary rule to
sentencing would have a detrimental effect on the traditional judicial prerogative of sentencing an
offender based upon all the relevant and reliable information that is available.”); see also United
States v. Lynch, 934 F.2d 1226, 1234-37 (11th Cir. 1991), cert. denied, 502 U.S. 1037 (1992)
(declining to extend the exclusionary rule to sentencing).
With respect to the Ground Three – wherein Owen argues that Southern failed to discuss
the PSIR with her – the Government again argues that the undisputed record from Judge Brooks’
Sentencing Hearing is plainly to the contrary. 	And with respect to Ground Four, where Owen
alleges Southern failed to file her objections, the Government points out that Southern filed twenty-
one (21) objections to the PSIR which U.S. Probation assembled into (15) unresolved (i.e.,
rejected) objections which were pending at the time of the Sentencing Hearing. See (ECF No. 24).
It was not until the Hearing – where Owen was present – that Southern withdrew the objections.
Citing Toledo v. United States, 581 F.3d 678, 681 (8th Cir. 2009), the Government argues it is not
ineffective assistance of counsel to “withdraw objections that have no support in the law.”
Moreover, the Government argues that Owen should not now be permitted to make self-serving
conclusory allegations when the record reflects her multiple statements to Judge Brooks that she
4 Evidence from this traffic stop (fentanyl pills) was the evidentiary basis for Count 3 of the
Indictment which was subsequently dismissed by the United States at Owen’s Sentencing Hearing.
(ECF No. 41, p. 36).
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was pleased with her counsel, affirming Southern explained and answered her questions related to
sentencing.
Finally, with respect to Ground Five, the Government argues Owen has failed to illustrate
what relevant facts would have supported a defense had Southern developed those facts; Owen
similarly fails to establish how additional discovery or testing of the evidence (allegedly, the drugs)
would have been exculpatory. Through those failures, says the Government, Owen cannot
establish a reasonable probability of a different outcome, citing Hollis v. United States, 796 F.2d
1043, 1046 (8th Cir.) (vague and conclusory allegations are not sufficient to state a ground for
relief under § 2255), cert. denied, 479 U.S. 965 (1986). Once again, the Government points out
that Owen’s failure to object to her counsel’s performance at Judge Brooks’ change of plea hearing
“refutes any claim of ineffective assistance of counsel as a basis” for relief. 	United States v.
Hughes, 16 F.3d 949, 951 (8th Cir. 1994). 	The Government urges Owen’s Motion be denied
because (1) counsel’s performance was not constitutionally deficient, and (2) Owen fails to
demonstrate any prejudice caused by counsel’s conduct.
With respect to Owen’s evidentiary hearing request, the Government states that § 2255 and
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Court
(“Rule 4(b)”) provide the framework for determining whether an evidentiary hearing should be
granted. Under § 2255, prisoners are not entitled to a hearing where the record conclusively
illustrates the prisoner’s ineligibility for relief. Relying on Rule 4(b), the Government contends
no evidentiary hearing is needed given that all the information necessary to decide Owen’s § 2255
claims is already in the record, citing Blankenship v. United States, 159 F.3d 336, 337 (8th Cir.
1998). (ECF No. 53, pp. 28-29).
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IV. DISCUSSION
When federal prisoners believe their sentence is in violation of the Constitution or laws of
the United States, or that their sentence exceeded the maximum sentence by law, or is otherwise
subject to collateral attack, they may move the court which imposed the sentence to either vacate,
set aside or correct the sentence. 28 U.S.C. § 2255(a). Courts may grant § 2255 motions if they
find the law does not authorize the judgment or if denials and infringements upon the constitutional
rights of the prisoner exist which render the judgment vulnerable to collateral attack. 28 U.S.C. §
2255(b). As the Eighth Circuit has stated, “[r]elief 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.”
Walking Eagle v. United States, 742 F.3d 1079, 1081–82 (8th Cir. 2014) (quoting United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).
A review of Owen’s § 2255 Petition, considering the district court’s record, conclusively
illustrates that Owen is not entitled to relief. The undersigned recommends dismissal of her § 2255
Motion with prejudice and without conducting an evidentiary hearing.
A. Timeliness
Section 2255(f) imposes a 1-year limitation period for filing this particular type of motion.
Time begins to run from the latest of the following: (1) the date when the conviction judgment
becomes final; (2) the date when the impediment to making a motion created by the governmental
action in violation of the Constitution of law of the United States is removed, if the movant was
prevented from making a motion by such governmental action; (3) the date when the right asserted
was initially recognized by the Supreme Court and made retroactively applicable to cases on
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collateral review; or (4) the date when the facts supporting the claim or claims presented could
have been discovered through exercise of due diligence. 28 U.S.C. § 2255(f).
Owen filed her § 2255 Motion on October 8, 2024. The Eighth Circuit Court of Appeals
issued an opinion and judgment on October 18, 2023. 	Robinson’s conviction became final on
January 16, 2024; therefore, Owen’s § 2255 Motion was filed within the 1-year period of finality
and the timeliness of her Motion is not at issue.
B. Procedural Bars
In a § 2255 motion, petitioners can only raise constitutional or jurisdictional issues.
Anderson v. United States, 25 F.3d 704, 704 (8th Cir. 1994). Petitioners “cannot raise a
nonconstitutional or nonjurisdictional issue in a § 2255 motion if the issue could have been raised
on direct appeal but was not.” Id., at 706. 	Furthermore, “a guilty plea waives all defects except
those that are jurisdictional.” United States v. Todd, 521 F.3d 891, 895 (8th Cir. 2008) (internal
quotation omitted); see also Walker v. United States, 115 F.3d 603, 604 (8th Cir. 1997) (“[A] valid
guilty plea forecloses an attack on a conviction unless on the face of the record the court had no
power to enter the conviction or impose the sentence.”) (cleaned up); Bousley v. United States, 523
U.S. 614, 621 (1998) (it is “well settled” that a voluntary and intelligent guilty plea “may not be
collaterally attacked.”). “When a criminal defendant has solemnly admitted in open court that he
is in fact guilty of the offense with which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior to the entry of the
guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Owen raises no jurisdictional issues, and thus, Owen’s § 2255 challenges concerning
pretrial matters – Southern’s failure to move to suppress evidence from a 2022 traffic stop (Ground
One) along with Southern’s alleged failure to investigate, conduct discovery and test evidence for
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a possible defense (Ground Five) – are procedurally barred, affording Owen no relief. 	The
Government is also correct that – to the extent Owen complains about Judge Brooks considering
evidence of the traffic stop in connection with sentencing – the law permitted its consideration as
relevant conduct even had Southern successfully excluded it for purposes of trial. See United States
v. Tauil-Hernandez, supra.
C. Ineffective Assistance of Counsel Claims
Where federal prisoners believe their constitutional right to an effective attorney was
violated, they may raise an ineffective assistance of counsel claim to argue a Sixth Amendment
violation. Strickland v. Washington, 466 U.S. 668, 699, 701 (1984). When determining whether a
prisoner’s right to effective counsel was violated, the court must apply a two-part test: (1)
performance – whether the defendant’s attorney acted in a manner unreasonable to prudent
counsel; and (2) prejudice – but for defendant’s attorney’s action, defendant would have a different
outcome. Id., at 687-88. When considering the first element, there is a “strong presumption that
counsel's conduct falls within the wide range of professionally reasonable assistance and sound
trial strategy.” Toledo v. United States, 581 F.3d 678, 680 (8th Cir. 2009) (quoting Garrett v.
United States, 78 F.3d 1296, 1301 (8th Cir.1996)). Where a defendant is unable to prove prejudice,
the reviewing court does not need to address the deficiency of counsel’s performance. Strickland,
466 U.S. at 688. Regarding prejudice, the standard is one of “reasonable probability.” Id., at 694.
“The burden of proving ineffective assistance of counsel rests with the defendant.” United States
v. White, 341 F.3d 673, 678 (8th Cir. 2003) (citing United States v. Cronic, 466 U.S. 648, 658
(1984)). To satisfy a showing of prejudice in cases involving guilty pleas, the defendant must
show that “there is a reasonable probability that, but for counsel's errors, [he] would not have
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pleaded guilty and would have insisted on going to trial.” York v. Lockhart, 856 F.2d 61, 63 (8th
Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985))
In Ground Two, Owen complains Southern was ineffective because he did not “fully
inform” her of the consequences of accepting the Plea Agreement including her “sentence
exposure,” “possible enhancements” and that she was “giving up her rights.” (ECF No. 50, Ground
Two). Before deciding whether to plead guilty, a defendant is entitled to “the effective assistance
of competent counsel.” McMann v. Richardson, 397 U.S. 759, 771 (1970). 	Based on the
undersigned’s review of the undisputed record, the undersigned does not believe counsel’s
assistance to Owen fell “below an objective standard of reasonableness.” Strickland, 466 U.S. at
688.
When signing her Plea Agreement and then again during her Change of Plea Hearing,
Owen affirmed that she had entered into the plea agreement knowingly and voluntarily. (ECF No.
19, p. 11; ECF No. 40, p. 10). When asked by Judge Brooks, Owen acknowledged that she “was
satisfied with the amount of time Mr. Southern ha[d] spent representing [her] and working on [her]
case; that Southern had “explained the nature of the proceedings where [she had] appeared;” and
that Southern had “answered any and all questions” Owen had, affirming she was “fully satisfied
with [Southern’s] legal services.” (ECF No. 40, pp. 6-7). Owen specifically acknowledged that
Southern had explained what the Government would have to prove at trial to obtain a conviction
of her on Count Two. (ECF No. 40, p. 9). These “[s]olemn declarations in open court carry a strong
presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Unsupported conclusory
allegations to the contrary are subject to summary dismissal. Id.
In her Plea Agreement, Owen affirmed she had read the Agreement in its entirety before
she signed it (ECF No. 19, pp. 10-11) and during the Plea Hearing, Owen affirmed that Southern
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had reviewed and explained the terms of the Plea Agreement, answering her questions about it.
(ECF No. 40, pp. 10-11). 	The Plea Agreement enumerates the constitutionally protected rights
Owen possessed but was giving up by pleading guilty to Count Two, (ECF No. 19, pp. 3-4), and
this waiver of rights was subsequently reaffirmed by Owen during her Plea Hearing with Judge
Brooks. (ECF No. 40, pp. 7-8). The maximum penalties Owen faced were set forth in the Plea
Agreement (ECF No. 19, pp. 5-6) that Owen acknowledged having read, and these maximum
penalties were reviewed again by Judge Brooks at the hearing (ECF No. 40, p. 9). At no time did
Owen ask questions of Judge Brooks, request to consult with her counsel, seek any clarification,
or illustrate any hesitation. On this record, Owen’s assertions that she was not fully informed of
her rights, the maximum penalties, and the consequences of pleading guilty to Count Two are
futile. “Courts should not upset a guilty plea simply because of post hoc assertions from a
defendant about how [she] would have pleaded but for [her] attorney's deficiencies.” Meza-Lopez
v. United States, 929 F.3d 1041, 1045 (8th Cir. 2019) (citing Lee v. United States, 583 U.S. 357
(2017), cert. denied, 589 U.S. 1157 (2020)). Rather, “[j]udges should ... look to contemporaneous
evidence to substantiate a defendant's expressed preferences.” Id.
Owen contends in her Motion that she felt coerced to plead guilty by Southern’s advising
her the Government might seek a superseding indictment from the grand jury. Assuming Southern
provided this information and/or advice, Owen has not established that such advice was outside
the wide range of acceptable professional assistance. Southern had a duty to inform Owen of the
applicable law and procedure which would include sharing any discussions with the Government
concerning superseding charges. See Hill v. Lockhart, 474 U.S. 52, 62 (1985) (White, J.,
concurring). 	Furthermore, courts are deferential to counsel’s professional discretion when it
comes to matters of trial strategy. See United States v. Villalpando, 259 F.3d 934, 939 (8th Cir.
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2001). Owen’s burden is to show “that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466
U.S. at 687. And where a defendant complains that ineffective assistance led her to accept a plea
offer as opposed to proceeding to trial, the defendant must show “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, 57 (1985). First, Owen has failed to illustrate that Southern erred.
It is nonsensical for Owen to argue that Southern should have concealed either his legal advice or
any information acquired from the prosecutor concerning the possibility of superseding charges.
And, other than a conclusory statement that she would have otherwise gone to trial, Owen has
failed to establish any reasonable probability she would have proceeded to trial on the three (3)
counts of the Indictment absent Southern’s information about superseding charges.
Turning to Ground Three – where Owen argues Southern failed to discuss the PSIR – and
Ground Four – where Owen argues Southern failed to file her objections to the PSIR – the
undersigned observes that, once again, the record supports neither.
When Judge Brooks commenced the Sentencing Hearing, one of his early questions elicited
Owen’s satisfaction with Southern and Owen answered that she was “fully satisfied” with his
“legal services.” 	(ECF No. 41, p. 3). 	Judge Brooks then reviewed the procedural history of
Owen’s case, including a review of the presentence investigation phase, Southern’s filing of
objections to the PSIR on Owen’s behalf, and the U.S. Probation Office’s Addendum, which found
all Owen’s objections were “non-meritorious.” (ECF No. 41, p. 4). Here, the record eviscerates
Owen’s § 2255 Ground Four that Southern failed to filed objections to the PSIR despite agreeing
to do so.
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Judge Brooks specifically advised Owen that Southern “had an obligation to review the
contents of the presentence documents with you and [Judge then asked] whether in fact Mr.
Southern did review those documents with you. Did he?” (ECF No. 41, p. 5). To this question,
Owen responded “Yes, your honor.” 	Id. 	Judge Brooks then asked Owen whether Southern
“answer[ed] any and all questions that you may have had about these presentence report
documents?” Again, Owen’s answer was “yes.” (ECF No. 41, p. 5). Judge Brooks was satisfied
with Owen’s responses, and this undisputed record is inapposite to Owen’s Ground Three.
Judge Brooks acknowledged receiving Southern’s Sentencing memorandum, along with
“very nice” letters from family and friends in support of Owen that were being considered in
mitigation. 	(ECF No. 41, p. 5). Again, the record directly contradicts Owen’s allegations in her
Affidavit that Southern offered no mitigation for sentencing. (ECF No. 50-1, p. 2).
Subsequently, in open court and in the presence of Owen, Southern withdrew all objections
made to the PSIR, leading Judge Brooks to give final approval of it. “Strategic 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). Owen said nothing and asked no questions
when her counsel withdrew the objections, (ECF No. 41, p. 6) and she possesses no basis to argue
that Southern’s withdrawal of unmeritorious objections was ineffective assistance of counsel. See
Whitaker v. United States, 2025 WL 3676983 * 2 (E.D. Mo. Dec. 18, 2025) (citing Toledo, supra).
On Owen’s behalf, Southern then argued for “a sentence on the lower end, if not a little bit below,”
the applicable guideline range. (ECF No. 41, p. 21). Following these arguments and allocution by
Owen, Judge Brooks reviewed the entirety of Owen’s case, including a consideration of
aggravating and mitigating factors (ECF No. 41, pp. 22-33), and imposed a sentencing guideline
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range sentence of 137 months incarceration; supervised release of 3 years; a $1,900 fine; and a
$100 special assessment. (ECF Nos. 28, 29).
From this record, the undersigned observes that Owen satisfies neither prong of Strickland
– Owen has not illustrated that Southern acted in a manner unreasonable to prudent counsel or that
Owen suffered any prejudice – i.e., she has not established that, but for Southern’s action, the
outcome of Owen’s criminal case probably would have been different. Owen’s § 2255 arguments
are contradicted by the undisputed record from her Plea and Sentencing Hearings, and the
undersigned is unwilling to simply “cast aside” or ignore “the strong presumption” that Owen’s
multiple statements during Judge Brooks’ colloquies are true. United States v. Gonzalez-Mercado,
808 F.2d 796, 800 n. 8 (11th Cir. 1987); Zilich v. Reid, 36 F.3d 317, 320 (3d Cir. 1994).
To the extent procedurally barred Ground Four requires additional analysis under
Strickland, Owen’s description of her unexplored trial defense is conclusory, self-serving and non-
specific and the undersigned does not view it meritorious in any respect. In evaluating counsel's
decision not to investigate, the Court “appl[ies] a heavy measure of deference to counsel's
judgments.” Ford v. United States, 917 F.3d 1015, 1022 (8th Cir. 2019) (quoting Strickland, 466
U.S. at 691). Owen must show prejudice from counsel's alleged failure to investigate or consult
with her by demonstrating the existence of evidence that counsel could have discovered through
further investigation or by producing exculpatory information Owen could have conveyed to
counsel through additional consultations. Neal v. Acevedo, 114 F.3d 803, 806 (8th Cir. 1997).
Owen must also demonstrate that the purported undiscovered evidence would have been sufficient
to undermine confidence at trial. Payne v. United States, 78 F.3d 343, 348 (8th Cir. 1996).
Owen’s Motion does not say what exculpatory evidence should have been discovered but
was not for lack of adequate investigation by Southern; Owen does not identify any viable defense
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theories for which Southern failed to develop evidence. Vague and conclusory allegations are not
sufficient to state a ground for relief under 28 U.S.C. § 2255. Hollis v. United States, 796 F.2d
1043, 1046 (8th Cir. 1986). 	Moreover, Owen pled guilty to Count Two, a charge factually
premised on Owen’s controlled sale of 22.7 gross grams of methamphetamine to a confidential
informant on January 28, 2022, which was arranged and surveilled by detectives of the Rogers
Police Department. (ECF No. 19, ¶ 4). 	“A reasonable attorney could have determined that the
record, including the government's uncontested evidence and [Defendant's] own colloquy with the
[Court], established an adequate factual basis for [Defendant's] guilty plea.” Meza-Lopez, 929 F.3d
at 1046 (citing United States v. Brown, 331 F.3d 591, 595 (8th Cir. 2003)).
Owen does not describe what alternative trial strategy Southern should have employed or
explain how hypothetically exculpatory evidence reasonably would have prompted a probable
differing outcome in her case. Owen does not describe how Southern’s additional “testing” of the
methamphetamine (or the fentanyl pills from the 2022 traffic stop) would have benefitted her
defense. Importantly, even if Southern’s investigation was unsatisfactory, Owen has not illustrated
that she was prejudiced by it. See Palmer v. Clarke, 408 F.3d 423, 445 (8th Cir. 2005) (movant
could not show prejudice because he had failed to demonstrate specifically what further evidence
would have been uncovered and how it would have affected the outcome at trial).
Finally, in her Affidavit, Owen contends Southern advised she would receive a 10-year
sentence. 	Even had counsel provided Owens “a mistaken impression about the length” of her
potential sentence – this would not have rendered Owen’s plea involuntary considering Judge
Brooks’ comprehensive conversation with Owen about the maximum sentence (240 months)
during the plea hearing and prior to Owen’s change of plea. (ECF No. 40, p. 9); see United States
v. Quiroga, 554 F.3d 1150, 1155 (8th Cir. 2009). Moreover, Owen’s contention founders on
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abundant circuit precedent holding that inaccurate advice of counsel about the likely punishment
does not render involuntary a defendant's decision to plead guilty, so long as the defendant is
informed of the maximum possible sentence permitted by statute and the court's ability to sentence
within that range. In United States v. Granados, 168 F.3d 343 (8th Cir.1999) (per curiam), for
example, the Eighth Circuit held that “a defendant's reliance on an attorney's mistaken impression
about the length of sentence is insufficient to render a plea involuntary as long as the court
informed the defendant of his maximum possible sentence.” Id. at 345. Other decisions are to the
same effect. See United States v. Gomez, 326 F.3d 971, 975 (8th Cir.2003) (rejecting a defendant's
contention that a guilty plea was not “knowing and voluntary” where counsel did not advise him
that he would be sentenced as a career offender, because, inter alia, “the sentencing stipulations in
the plea agreement were clearly stated to be non-binding on the sentencing court”); United States
v. Spears, 235 F.3d 1150, 1152 (8th Cir.2001) (holding that a defendant's guilty plea was “knowing
and voluntary,” despite “any confusion about how he would fare under the Sentencing
Guidelines”); United States v. Bond, 135 F.3d 1247, 1248 (8th Cir.1998) (per curiam) (“A defense
counsel's erroneous estimate of a guidelines sentence does not render an otherwise voluntary plea
involuntary.”); Roberson v. United States, 901 F.2d 1475, 1478 (8th Cir.1990) (holding that a
defendant's reliance on defense counsel's erroneous prediction that he would receive a more lenient
sentence if he pled guilty did not make his plea involuntary, where the defendant was fully
informed of the maximum sentence on each count); Hollis v. United States, 687 F.2d 257, 260 (8th
Cir.1982) (rejecting a defendant's claim that his plea was involuntary, as “[t]he rule is clear that a
defendant cannot set aside a guilty plea merely because he relied on his attorney's opinion that the
sentence would be a lenient one”).
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D. Evidentiary Hearing
A § 2255 motion may be dismissed without a hearing if: (1) Defendant's allegations, if
accepted as true, would not entitle her to relief; or (2) the allegations cannot be accepted as true
because they are contradicted by the record, are inherently incredible, or are conclusions, rather
than statements of fact. Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998). Moreover,
where the record includes all the information necessary for the court to rule on the motion, an
evidentiary hearing is unnecessary. Covey v. United States, 377 F.3d 903, 909 (8th Cir. 2004)
(citations omitted).
Applying this standard to the allegations and the record, the undersigned finds Owen fails
to meet the requirements identified in Delgado, 162 F.3d at 983, and the record here includes all
the information necessary for the Court to rule. Covey, 377 F.3d at 909. Accordingly, no
evidentiary hearing is required in this case.
E. Certificate of Appealability
To appeal an adverse decision on a § 2255 motion, a movant must first obtain a certificate
of appealability. See 28 U.S.C. § 2253(c)(1)(B). A court cannot grant a certificate of appealability
unless the applicant has made “a substantial showing of the denial of a constitutional right.” Id. §
2253(c)(2). Upon review, the undersigned observes that issuance of a certificate is not appropriate
here as no issue raised by Owen is “debatable among reasonable jurists.” Flieger v. Delo, 16 F.3d
878, 882–83 (8th Cir. 1994) (citing Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam)).
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that Owen’s Motion to Vacate, Set Aside, or
Correct Sentence (ECF No. 50) be DENIED. It is also recommended that Owen’s request for an
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evidentiary hearing be DENIED and any future request for a certificate of appealability be
DENIED.
The parties have fourteen (14) days from receipt of our report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). he failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must both be timely and specific to trigger de novo review by the
district court.
RECOMMENDED this 20th day of January 2026.
____________________________________
CHRISTY COMSTOCK
U.S. MAGISTRATE JUDGE
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