Burns v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
TIMOTHY JAMES BURNS,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
4:22-CV-04036-KES
REPORT AND RECOMMENDATION
INTRODUCTION
This matter is before the court on the pro se motion of Timothy James
Burns to vacate, correct, or set aside his sentence pursuant to 28 U.S.C.
§ 2255. See Docket No. 1.1 Pending is a motion by the United States
(“government”) to dismiss Mr. Burns’ motion without holding an evidentiary
hearing. See Docket No. 17. This matter was referred to this magistrate judge
for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
Rule 57.11.
FACTS
The government recites the facts laid out by the court of appeals in its
opinion affirming Mr. Burns’ conviction and sentence. Docket No. 17 at
1 Documents cited from this civil habeas file will be cited using the court’s
assigned docket number. Documents from Mr. Burns’ underlying criminal
case, United States v. Timothy Burns, 4:18-CR-40001-KES-2 (D.S.D.), will be
cited using the court’s assigned docket number preceded by “CR.”
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 1 of 34 PageID #: <pageID>

2
pp. 2-4. Mr. Burns does not object. Docket No. 19. Therefore, the court starts
with the Eighth Circuit’s factual statement.
Tobias Ritesman operated Ritesman Enterprises, Inc., which, in
turn, was the parent company of Global Aquaponics, Inc., and
South Dakota Food Security, LLC (SDFS). Global and SDFS
purportedly intended to build an aquaponics facility worth $11
million.2 Global was to own 51 percent of the facility and
contribute $5.6 million to the project. SDFS was to own 49
percent of the facility and contribute $5.4 million to the project.
SDFS planned to raise its portion by selling shares. Thus, it
created a private placement memorandum, which detailed the
purported project and investment opportunities for potential
investors.
Burns entered the picture as Global’s chief operating officer and
the general contractor for construction on the aquaponics facility.
Burns hired two people, Jeremiah Charlson and Gregg Selberg, to
find investors for SDFS to accumulate SDFS’s $5.4 million
contribution. Burns instructed Charlson and Selberg to use the
private placement memorandum in their presentations to
investors. Burns also gave Charlson and Selberg additional
information not included in the private placement memorandum to
tell investors. For example, Burns told Charlson and Selberg that
Global already had its $5.6 million contribution either on hand or
in assets; it had purchased land for the facility; it had secured
contracts to sell fish and produce; and the project had a funded
bond from the State of South Dakota. But none of these
representations were true. Defrauded investors later testified they
relied on these statements when deciding to invest.
Burns operated other unrelated businesses. Burns's other
businesses experienced financial troubles during the time he
promoted Global and SDFS. Thus, Burns took investor funds
intended for SDFS and used them to cover expenses related to his
other businesses. Burns or his bookkeeper, Jackie Voelker, would
transfer the money from SDFS’s or Global’s accounts to Burns's
other businesses.
2 Aquaponics combines aquaculture (raising and breeding aquatic animals) and
hydroponics (growing plants without soil), using the aquatic animals to fertilize
water for the plants and the plants to purify it for the aquatic animals.
Aquaponics, Oxford English Dictionary (3d ed. 2012).
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 2 of 34 PageID #: <pageID>

3
Charlson and Selberg eventually became suspicious of Burns.
They noticed Burns was visibly stressed and would offer them
double commission if they got a new investor within a day. During
this time, they also saw Burns looking at negative bank accounts
for SDFS. The company’s apparent insolvency concerned them
given their successful efforts to secure investors. Charlson and
Selberg knew they had raised $200,000 to $300,000 for SDFS and
been told Global had $5.6 million ready. So Charlson and Selberg
discussed their concerns with Voelker. Voelker informed the two
that SDFS’s bank account was empty. The three decided to meet
with Ritesman, the supposed originator of the project. Ritesman
replied to their concerns by saying he would talk to Burns. Then,
Charlson and Selberg decided to confront Burns directly. Burns
claimed that he was entitled to a $1 million down payment as
general contractor and that the transfers were simply advances for
that sum. No one, however, had heard about or seen a contract for
the purported down payment. Burns later showed them a contract
addressing the down payment. Burns had drafted the contract
himself and signed it as the chief operating officer of Global and as
president of one of his other businesses.
After the confrontation, the scheme unraveled. SDFS filed a
statement of dissociation from Burns. And several months later,
the Federal Bureau of Investigation (FBI) interviewed Burns for his
involvement with the scheme.
After the FBI investigation, a grand jury indicted Burns and
Ritesman for wire fraud under 18 U.S.C. § 1343. Ritesman
pleaded guilty. Burns went to trial. At trial, following the close of
the evidence, the district court gave an actual-knowledge and a
willful-blindness jury instruction for the intent element. It also
gave the remainder of the wire-fraud instruction. Burns’s counsel
objected to the instruction, arguing it constructively amended or
varied from the indictment to an impermissible degree. The
district court overruled the objection, concluding that the wire-
fraud jury instruction did not constructively amend the indictment
or constitute a variance.
United States v. Burns, 990 F.3d 622, 625 (8th Cir. 2021).
On appeal, Mr. Burns argued, among other things, that the district
court’s willful blindness jury instruction was improper. Id. The Eighth Circuit
held that the district court had not abused its discretion by instructing the jury
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 3 of 34 PageID #: <pageID>

4
on willful blindness. Id. at 628-29. The court noted that a willful blindness
instruction was relevant because Mr. Burns “assert[ed] a lack of guilty
knowledge in the face of immense evidence supporting an inference of
deliberate indifference.” Id. at 628 (quoting United States v. Atkins, 881 F.3d
621, 627 (8th Cir. 2018)).
Mr. Burns filed this motion under 28 U.S.C. § 2255 on March 7, 2022,
when he placed it in the mail. Docket No. 1. The motion raises three claims
for relief. They are:
1. “Counsel was ineffective by not presenting an additional jury
instruction to modify the willful blindness instruction asking
the jury to decide whether defendant is to be found guilty on
the grounds of specific intent or on the grounds of willful
blindness, prejudicing defendant.” Docket No. 1 at p. 4.
Mr. Burns asserts a similar claim of ineffective assistance
against his appellate lawyer. Id.
2. “Counsel was ineffective at sentencing by not researching or
investigating evidence and submittals, not properly objecting
to the PSR, and not presenting a due process violation
arguement [sic] to the Court, thus prejudicing defendant at
sentencing. Id. at p. 5.
3. “Counsel was ineffective by [not] properly impeaching
government’s key witness, Gregg Selberg, or raising a
prosecutorial misconduct claim, prejudicing defendant.”
Id. at p. 7.
The court ordered Mr. Burns’ trial attorney, Michael Butler, to submit an
affidavit addressing Mr. Burns’ claim of ineffective assistance. Docket No. 9.
Mr. Butler submitted his affidavit, Docket No. 15, and the government now
moves to dismiss Mr. Burns’ habeas motion, Docket No. 17. Mr. Burns
responded. Docket No. 19.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 4 of 34 PageID #: <pageID>

5
DISCUSSION
A. Scope of a § 2255 Motion
Section 2255 of Title 28 of the United States Code was enacted to
supersede habeas corpus practice for federal prisoners. Davis v. United States,
417 U.S. 333, 343-44 (1974). Section “2255 was intended to afford federal
prisoners a remedy identical in scope to federal habeas corpus.” Id. at 343.
Before the enactment of ' 2255, habeas claims had to be brought in the district
where the prisoner was confined, resulting in overburdening those districts
where federal correctional institutions were located and presenting logistical
issues because the record in the underlying criminal case was often in a
distant location. United States v. Hayman, 342 U.S. 205, 212-16 (1952). The
enactment of ' 2255 resolved these issues by requiring that the motion be filed
in the sentencing court. Id.
The scope of a ' 2255 motion is seemingly broader than the scope of a
habeas petition, the latter of which is typically limited to allegations of a
constitutional dimension. Section 2255 allows a federal prisoner “claiming the
right to be released” to “vacate, set aside or correct” a federal sentence under
specific grounds. See 28 U.S.C. ' 2255(a) (“upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.”). When a claim for relief is not based on a
violation of a Constitutional or federal statutory right or regarding a lack of
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 5 of 34 PageID #: <pageID>

6
jurisdiction, the Supreme Court has read a “fundamentality” requirement into
' 2255—relief is available for only those errors which constitute a “fundamental
defect which inherently results in a complete miscarriage of justice” or “an
omission inconsistent with the rudimentary demands of fair procedure.” Hill v.
United States, 368 U.S. 424, 428 (1962); see Peguero v. United States, 526 U.S.
23, 27-30 (1999) (noting collateral relief may be appropriate when a movant is
prejudiced by a court’s error).
Generally, petitioners are precluded from asserting claims under ' 2255
that they failed to raise on direct appeal. United States v. Darden, 915 F.3d
579, 586 (8th Cir. 2019) (citations omitted); United States v. Frady, 456 U.S.
152, 167-68 (1982). When a ' 2255 petitioner asserts a claim that is
procedurally defaulted because it was not raised on direct appeal, the claim
can only proceed after the petitioner has shown either: (1) actual innocence or
(2) that the procedural default should be excused because there was both
cause for the default and actual prejudice to the petitioner. Bousley v. United
States, 523 U.S. 614, 621-22 (1998); McNeal v. United States, 249 F.3d 747,
749 (8th Cir. 2001). Therefore, barring a claim of actual innocence, a
petitioner must show both cause for why he failed to raise an issue on direct
appeal as well as actual prejudice caused by the alleged errors. If a movant
fails to demonstrate prejudice, the court need not address whether cause exists
to excuse a procedural default. Moore-El v. Luebbers, 446 F.3d 890, 898
(8th Cir. 2006).
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 6 of 34 PageID #: <pageID>

7
Appellate courts generally refuse to review claims of ineffective assistance
of counsel on direct appeal; such claims are, therefore, properly addressed in a
28 U.S.C. ' 2255 motion such as the one here. See United States v. Campbell,
6 F.4th 764, 776 (8th Cir. 2014); United States v. Lee, 374 F.3d 637, 654 (8th
Cir. 2004) (citations omitted) (“[I]neffective assistance of counsel [claims] are
generally not cognizable on direct appeal” and “may be heard only if a
miscarriage of justice would otherwise result, . . . or if the district court has
developed a record on the issues.”). Therefore, no procedural default analysis
is required before examining Mr. Burns’ claims of constitutionally
deficient counsel.
B. Mr. Burns’ Motion Is Timely
There is a one-year statute of limitations for filing a § 2255 motion which
began to run in Mr. Burns’ case at the time his conviction and judgment
became final. See 28 U.S.C. § 2255(f). The Eighth Circuit decided Mr. Burns’
case on March 8, 2021. See United States v. Burns, 990 F.3d 622 (8th Cir.
2021). His conviction became final when the time to file a petition for writ of
certiorari to the United States Supreme Court expired, which in his case was
150 days after the appellate court issued its decision. See Miscellaneous
Supreme Court Order 589 (extending the deadline for petitions for writ of
certiorari due on or after March 19, 2020, from 90 to 150 days) and
Miscellaneous Supreme Court Order 594 (rescinding Order 589 as to lower
court judgments issued on or after July 19, 2021). Therefore, Mr. Burns’
conviction became final on August 5, 2021, when the time to file a petition for
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 7 of 34 PageID #: <pageID>

8
writ of certiorari expired. Mr. Burns had until August 5, 2022, to file his
§ 2255 motion, and he timely filed his motion by mailing it on March 7, 2022.
See Moore v. United States, 173 F.3d 1131, 1135 (8th Cir. 1999) (applying the
mailbox rule to § 2255 motions).
C. Mr. Burns’ Ineffective Assistance of Counsel Claims
Each of Mr. Burns’ three grounds for habeas relief allege Sixth
Amendment ineffective assistance of counsel related to his trial and appellate
attorneys.
1. Standard Applicable to Ineffective Assistance Claims
The Sixth Amendment of the Constitution of the United States affords a
criminal defendant with the right to assistance of counsel. U.S. Const.
amend. VI. The Supreme Court “has recognized that ‘the right to counsel is the
right to the effective assistance of counsel.’ ” Strickland v. Washington, 466
U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970)). Strickland is the benchmark case for determining whether “counsel’s
assistance was so defective as to” violate a criminal defendant’s Sixth
Amendment rights and “require reversal of a conviction.” Id. at 687.
“When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 687-88. The
defendant must also show that counsel’s unreasonable errors or deficiencies
prejudiced the defense and affected the judgment. Id. at 691-92. The
defendant must show “there is a reasonable probability that, absent the errors,
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 8 of 34 PageID #: <pageID>

9
the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695.
In sum, a defendant must satisfy a two-prong test. Id. at 687.
First, the defendant 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 defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result
unreliable.
Id.
“There is a presumption that any challenged action was sound trial
strategy and that counsel rendered adequate assistance and made all
significant decisions in the exercise of professional judgment.” Hall v.
Luebbers, 296 F.3d 685, 692 (8th Cir. 2002) (quotation omitted). It is the
petitioner’s burden to overcome this presumption, and a “petitioner cannot
build a showing of prejudice on a series of errors, none of which would by itself
meet the prejudice test.” Id. (citing Wainwright v. Lockhart, 80 F.3d 1226,
1233 (8th Cir. 1996)). Courts may address deficient performance and prejudice
in any order, and courts need not “address both components . . . if the
defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697.
Counsel’s conduct must be judged by the standards for legal
representation which existed at the time of the representation, not by
standards promulgated after the representation. See Bobby v. Van Hook, 558
U.S. 4, 7-9 (2009). “ ‘American Bar Association standards and the like’ are
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 9 of 34 PageID #: <pageID>

10
‘only guides’ to what reasonableness [of counsel’s conduct] means, not its
definition.” Id. (quoting Strickland, 466 U.S. at 688). “[T]he reasonableness of
counsel's challenged conduct [must be judged] on the facts of the particular
case, viewed as of the time of counsel's conduct.” Strickland, 466 U.S. at 690;
see also Rompilla v. Beard, 545 U.S. 374, 381 (2005) (emphasizing that
“hindsight is discounted by pegging adequacy to ‘counsel's perspective at the
time’ investigative decisions are made.”; Bell v. Cone, 535 U.S. 685, 698 (2002),
(reiterating that “every effort [must] be made . . . to evaluate the conduct from
counsel's perspective at the time.”).
The Supreme Court distinguishes between those cases “in which the new
evidence ‘would barely have altered the sentencing profile presented to the
sentencing judge,’ ” and those that would have had a reasonable probability of
changing the result. Porter v. McCollum, 558 U.S. 30, 41 (2009) (quoting
Strickland, 466 U.S. at 700). In assessing the prejudice prong, courts should
consider “the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding—and reweigh it
against the evidence in aggravation.” Id. at 41 (internal quotation omitted,
cleaned up). It is not necessary for the movant to show “that counsel’s
deficient conduct more likely than not altered the outcome” of his case, only
that there is “a probability sufficient to undermine confidence in [that]
outcome.” Id. at 44 (quotation omitted). “Judicial scrutiny of counsel’s
performance must be highly deferential” with “a strong presumption that
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 10 of 34 PageID #: <pageID>

11
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689.
2. The Willful Blindness Instruction
Mr. Burns asserts counsel was ineffective for failing to propose “an
additional jury instruction to modify the willful blindness instructions asking
the jury to decide whether defendant is to be found guilty on the grounds of
specific intent or on the grounds of willful blindness” there by prejudicing him.
Docket No. 1 p. 4. Mr. Burns claims that both trial and appellate counsel “did
not research or investigate the issues related with willful blindness jury
instruction.” Id. Mr. Burns states in his motion that “[c]ounsel was
unprepared to such an extent to even recognize the Judge erred” when quoting
case law that established the willful blindness instruction. Id.
In Mr. Burns’ direct appeal, the Eighth Circuit affirmed that the willful
blindness instruction was proper. Burns, 990 F.3d at 628-29. The court held,
“[e]ven if the jury believed [Burns’] implausible explanation that he had no
knowledge of the criminal activity . . . ,‘there was sufficient evidence that he
deliberately turned a blind eye to . . . clearly illicit activity to warrant’ a willful
blindness instruction.” Id. (citing United States v. Atkins, 881 F.3d 621, 627
(8th Cir. 2018).
The question before this court in the habeas proceeding is whether
another instruction clarifying the proper willful blindness instruction was
warranted under the circumstances. Outside the presence and hearing of the
jury, the district court judge met with Mr. Burn’s counsel, Michael Butler, and
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 11 of 34 PageID #: <pageID>

12
counsel for the government to discuss the final jury instructions. CR Docket
No. 103 at p. 2. Mr. Butler objected to the willful blindness jury instruction,
stating, “I do not believe the government has put on evidence that would
support the giving of that instruction.” Id. at p. 8. A discussion on the willful
blindness instruction and case law followed. Id. The trial transcript attributes
this statement to the court:
The U.S. Supreme Court found in Global-Tech Appliances v. SEB
S.A. at 131 S.Ct., page 2060, —it’s from 2011—that the willful
blindness instruction can be given if there are two basic
requirements that are met. The defendant must objectively believe
that there’s a high probability that a fact exists. And two, the
defendant must take deliberate actions to avoid learning of that
fact.
CR Docket No. 103 at p. 10 (emphasis added).
The Supreme Court’s actual holding in Global-Tech refers to subjective,
not objective, belief for the first requirement of the willful blindness instruction.
See Global-Tech, 563 U.S. 754, 769 (2011). The doctrine of willful blindness
includes two basic requirements: “(1) The defendant must subjectively believe
that there is a high probability that a fact exists and (2) the defendant must
take deliberate actions to avoid learning of that fact.” Id. (emphasis added).
The government provided the court with examples of submitted evidence
that would validate the willful blindness instruction under the Global-Tech
rule. CR Docket No. 103 at p. 10-11. Mr. Butler disagreed with the
government’s application of the evidence to justify the willful blindness
instruction. Id. at p. 11. The court concluded that “it’s a jury question as to
whether [Burns] deliberately avoided learning of [the facts], in essence, sticking
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 12 of 34 PageID #: <pageID>

13
his head in the stand.” Id. at p. 12. The court ultimately overruled
Mr. Butler’s objection and gave the willful blindness jury instruction. Id. at p.
13.
The apparent misquote by the court, Mr. Burns claims under his first
ground, “allowed the jury to decide guilt to two separate theories,” thereby
undermining the unanimity of the jury verdict, and prejudicing him. Docket
No. 1 p. 4. Mr. Burns clarifies in his response in opposition to the
government’s motion that he believed the court’s jury instructions allowed
some jurors to find he acted knowingly, and some jurors to find he acted with
willful blindness, thus giving rise to a nonunanimous verdict. Docket No. 19 at
p. 2. Mr. Burns believes that Mr. Butler should have asked for an additional
instruction directing the jury to find him unanimously guilty of willful
blindness or unanimously guilty of acting knowingly.3 Id. This court holds
that such an addition to the jury instructions was unnecessary, and its
absence did not violate Mr. Burns’ Sixth Amendment right.
A jury instruction, taken as a whole and viewed in light of the evidence
and applicable law, must fairly and adequately reflect the issues in the case.
Preston v. United States, 312 F.3d 959, 961 (8th Cir. 2002). The element
required to sustain a conviction for wire fraud under 18 U.S.C. §1343 is intent
3 In his petition, Mr. Burns contrasted the concepts of “specific intent” and
“willful blindness.” Docket No. 1 at p. 4. In his brief in opposition to the
government’s motion to dismiss, he contrasted the concepts of “knowingly” and
“willful blindness,” arguing that the government misconstrued his claim in his
petition. Docket No. 19 at p. 2. Whichever argument Mr. Burns is in fact
making, both fail to entitle Mr. Burns to relief.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 13 of 34 PageID #: <pageID>

14
to defraud. Burns, 990 F.3d at 627 (quoting United States v. Roberts, 881
F.3d 1049, 1052 (8th Cir. 2018)). A jury instruction defining intent to defraud
as “to act knowingly and with the intent to deceive someone for the purpose of
bringing about some financial gain to oneself or another to the detriment of
another person” is in accordance with Eighth Circuit law. United States v.
Thomas, 791 F.3d 889, 893 (8th Cir. 2015) (emphasis added).
Willful blindness is a limited exception to the requirement that actual
knowledge be proved beyond a reasonable doubt. Global-Tech, 563 U.S. at
768. Thus, contrary to Mr. Burns’ apparent understanding, willful blindness is
not a concept in opposition to the concept of acting knowingly; instead, it is a
subset of “knowingly.” It provides an alternate basis for the government to
satisfy the element of a “knowing” violation. See United States v. Lalley, 257
F.3d 751, 755 (8th Cir. 2001) (quotation and citation omitted) (holding, in the
context of the money-laundering statute, that “Congress intended the ‘knowing’
scienter requirements [of the statute] to be construed, like existing ‘knowing’
scienter requirements, to include instances of ‘willful blindness.’ ”). Under the
willful blindness instruction, a defendant is willfully blind who takes deliberate
actions to avoid confirming a high probability of wrongdoing and who can
almost be said to have actually known the critical facts. Id. The jury
instructions related to willful blindness presented at Mr. Burns trial were as
follows:
Instruction No. 3 - Wire Fraud
One, that Burns voluntarily and intentionally devised, made up, or
participated in a scheme to defraud, or devised or participated in a
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 14 of 34 PageID #: <pageID>

15
scheme to obtain money from another by means of material false
representations or promises. . . .
Two, that Burns did so with the intent to defraud. . . .
To act with “intent to defraud” means to act knowingly and with
the intent to deceive someone for the purpose of causing some
financial loss or loss of property to another or bringing about some
financial gain to oneself of another to the detriment of a third
party.
Instruction No. 6 – Willful Blindness
The government may prove that Burns acted “knowingly” by
proving, beyond a reasonable doubt, that Burns deliberately closed
his eyes to what would otherwise have been obvious to him. No
one can avoid responsibility for a crime by deliberately ignoring
what is obvious. A finding beyond a reasonable doubt of an intent
of Burns to avoid knowledge or enlightenment would permit the
jury to find knowledge. Stated another way, a person’s knowledge
of a particular fact may be shown from a deliberate or intentional
ignorance or deliberate or intentional blindness to the existence of
that fact. A willfully blind defendant is one who takes deliberate
action to avoid confirming a high probability of wrongdoing.
It is, of course, entirely up to you as to whether you find any
deliberate ignorance or deliberate closing of the eyes and any
inferences to be drawn from any such evidence.
You may not conclude that Burns had knowledge, however, from
proof of mistake, negligence, carelessness, recklessness, or a belief
in an inaccurate position.
CR Docket No. 93 pp. 3-4, 12.
Mr. Burns has failed to show evidence that the jury could have decided
his case on split theories of acting knowingly and willful blindness. The
element required to sustain a conviction for wire fraud is intent to defraud,
which—as the court instructed—required proof that Mr. Burns “acted
knowingly.” Burns, 990 F.3d at 630 (quoting Thomas, 877 F.3d at 1079). The
willful blindness instruction as presented to the jury, appropriately expands
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 15 of 34 PageID #: <pageID>

16
the definition of “knowingly” to include Mr. Burns’ “deliberately clos[ing] his
eyes to what would otherwise have been obvious to him.” CR Docket No. 93
p. 12. As the Eighth Circuit concluded, the jury could find that the
government satisfied the intent element if either Mr. Burns had actual
knowledge or was intentionally ignorant of the criminal conduct underlying the
offenses of his conviction. Burns, 990 F.3d at 627.
Mr. Burns further argues that a question proposed during jury
deliberations is evidence that the jury was split on the intent theories. This
court finds that the proposed question is not sufficient evidence that the jury
was considering multiple theories of intent as Mr. Burns claims. Outside the
presence and hearing of the jury, counsel and the court addressed the
following jury question: “Regarding Element 1, would willful blindness come to
bare [sic] that. Would it satisfy Element 1 if we are otherwise uncertain?”4
CR Docket No. 94.
The court proposed this answer to the jury: “The government can prove
that Burns acted ‘knowingly’ regarding any element by proving, beyond a
reasonable doubt, that Burns acted with willful blindness as fully described in
Final Instruction No. 6. Willful blindness applies any time you need to find
that Burns acted knowingly.” CR Docket No. 95. Mr. Butler objected to the
inclusion of the second statement. The court agreed stating,
“I think Mr. Butler is correct with regard to the last sentence . . . that willful
4 The jury question and answer were under seal in the CR, however the
government disclosed the contents of the question and answer in their publicly
filed brief. Docket No. 18 p. 10.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 16 of 34 PageID #: <pageID>

17
blindness applies any time . . . that broadens the jury’s findings.” Id. The final
answer to the jury’s question was as follows:
The government can prove that Burns acted 'knowingly' regarding
any element by proving, beyond a reasonable doubt, that Burns
acted with willful blindness as fully described in Final Instruction
Number 6.
This instruction should be taken together with the instructions I
previously gave you. The instructions must be considered as a
whole.
CR Docket 186-4 p. 82.
There is no indication in the record that the jury verdict was not
unanimous. See Burns, 990 F.3d at 630 (noting the trial court told the jury it
needed to reach a unanimous finding, the jury instructions specified the jury
should reach a unanimous verdict, the verdict form stated that the jury found
unanimously, and the trial court asked about the verdict’s unanimity before
announcing the guilty verdict). Courts presume the jury followed the trial
court’s instructions. See Thomas, 877 F.3d at 1079. “[T]he mere fact
that . . . an instruction could conceivably permit a jury to reach a
nonunanimous verdict is not sufficient to require reversal when the jury has
been instructed that it must reach a unanimous verdict.” United States v.
Hiland, 909 F.2d 1114, 1140 (8th Cir. 1990) (quoting Berrisford v. Wood, 826
F.2d 747, 754 (8th Cir. 1987)).
Mr. Burns has failed to rebut the presumption that Mr. Butler’s decision
not to propose an additional instruction was reasonably competent
representation. See Strickland, 466 U.S. at 688-89. Mr. Butler objected to the
willful blindness instruction at trial. Counsel addressed the question from the
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 17 of 34 PageID #: <pageID>

18
jury by limiting the definition of willful blindness to the published jury
instructions. Any other clarification regarding the jury instructions would
likely have confused rather than aided the jury. Further, without any
indication in the record that the jury’s verdict was not unanimous, Mr. Burns
has not shown that he was prejudiced by Mr. Butler’s alleged failure to offer an
additional jury instruction. Id.
The court notes that the challenged misquote (objective vs. subjective)
occurred outside the presence of the jury. The jury never heard the misquote
and could not have been swayed by it. Second, the willful blindness
instruction given to the jury, CR Docket No. 93 at p. 13,5 reflects an accurate
statement of the law as it requires subjective, not objective, belief, which
follows the Global-Tech rule.
To the extent Mr. Burns raises this claim as to appellate counsel, he has
not shown prejudice. His attorney on appeal argued that the trial court erred
in giving the willful blindness instruction and should have, sua sponte, given
an explicit unanimity instruction. Burns, 990 F.3d at 628-29, 630-31. He has
not shown that, had counsel framed the issue slightly differently on
appeal—e.g., by alleging that the district court erred when quoting Global-Tech
or should have given an instruction clarifying the difference between specific
intent and willful blindness—there is any probability of a different outcome.
5 Citations to the final jury instructions refer to the page numbers affixed to the
document by the court’s electronic docketing system, CM/ECF, not to the
numbers printed at the bottom of the page.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 18 of 34 PageID #: <pageID>

19
See Porter, 558 U.S. at 44. Therefore, with no showing of prejudice, Mr. Burns’
claim as to appellate counsel without merit.
This magistrate judge respectfully recommends granting the
government’s motion to dismiss this claim because there has been no showing
of deficient performance or prejudice.
3. Ineffective Assistance at Sentencing
Mr. Burns asserts “counsel was ineffective by not researching or
investigating evidence and submittals, not properly objecting to the PSR, and
not presenting a due process violation argument [sic] to the Court, thus
prejudicing [Burns] at sentencing.” Docket No. 1 p. 5.
a. Failing to Present Evidence
Mr. Burns claims that at his sentencing, Mr. Butler failed to present five
reference letters and failed to acquire two victim statements all which
Mr. Burns believed would have shown the court his ability to pay restitution.
Id. Although Mr. Burns does not identify specific persons in his habeas
petition, in his response in opposition he asserts counsel should have obtained
letters from: Bill Sutton, Dean Krogman, Dave Kosbau, Cody Bozied, Brent
Anderson, Matt Kurtenbach, and Sheriff Marty Stanwich.
The court notes that counsel did obtain letters of support from the latter
four persons named by Mr. Burns. See CR Docket Nos. 138 (Sherriff
Stanwich); 141 (Matt Kurtenbach); 145 (Cody Bozied); and 162 (Brent
Anderson). Also, Dave Kosbau submitted a victim impact statement indicating
that he believed Mr. Burns had “good intentions” but was misled about
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 19 of 34 PageID #: <pageID>

20
finances. Docket No. 107 at p. 1. Mr. Burns does not submit affidavits or
other evidence that the other two persons (Bill Sutton and Dean Krogman)
would have been willing to submit letters on his behalf or what they would
have been willing to say in those letters. Thus, from the inception, much of
Mr. Burns’ claim is affirmatively refuted by the record herein.
Courts refer to the United States Sentencing Guidelines6 (USSG), as
advisory authority in sentencing. See United States v. Booker, 543 U.S. 220,
245 (2005) (a sentencing court must consider USSG ranges, however a court
may tailor the sentence given other statutory concerns as well). Restitution is
a separate consideration from imprisonment in sentencing proceedings. United
States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005); 18 § U.S.C. 363A; USSG
§ 5E1.1. The purpose of restitution is not to punish the defendant, rather to
compensate victims of crime. United States v. Crawford, 115 F.3d 1397, 1403
(8th Cir. 1997). The sentencing court shall consider “the need to provide
restitution to any victims of the offense” when determining imprisonment.
18 U.S.C. § 3553(a)(7).
The presentence investigation report (PSR) prepared for Mr. Burns’
sentencing hearing calculated Mr. Burns’ advisory sentencing range under the
USSG. CR Docket No. 174. Based on a total offense level of 25 and a criminal
history category of I, the advisory USSG range for Mr. Burns’ imprisonment
6 The USSG is a tool for calculating sentencing based on various factors
including, but not limited to the type of offense, the defendant’s role in the
offense, the number of victims impacted by defendant’s actions, and the
defendant’s criminal history. Payne v. Tennessee, 501 U.S. 808, 820 (1991).
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 20 of 34 PageID #: <pageID>

21
was 57 to 71 months. Id. at p. 22. Under the USSG and statutory provisions,
restitution was to be ordered. Id. at 24.
Mr. Butler addressed Mr. Burns’ habeas claim in his affidavit saying,
“evidence was presented to the court that at least two persons were prepared to
hire [Burns] . . . these two persons . . . declined to be identified. Additionally,
another letter was submitted to the court stating Burns could be hired to do
business.”7 Docket No. 15 p. 1. Mr. Butler could not address Mr. Burns’
specific allegation herein because Mr. Burns failed to identify the five authors
of the letters and the two victims by name.8 Id. at p. 2; Docket No. 1 at p. 5.
The record reveals that Mr. Butler submitted twenty-one letters on Mr. Burns’
behalf before the sentencing hearing, at least four of which were from persons
Mr. Burns asserts counsel should have solicited letters from. CR Docket No.
132, 138, 141, 145, 153, 162, 164.
Of those twenty-one letters, six members of the Brookings regional
business community stated that they would hire Burns for future projects. “I
am aware of his recent conviction, yet I do not hesitate to continue to do
7 Not only did counsel mention these potential business partners of Mr. Burns
at sentencing, but Mr. Burns in his personal allocution to the court also
mentioned them. Like his counsel, Mr. Burns did not “name names” as he
indicated to the court that the potential business partners did not want to be
identified. CR Docket No. 187 at pp. 109-10.
8 As noted previously, Mr. Burns did not identify the persons he alleges should
have been contacted to write letters of support in his habeas petition. Docket
No. 1 at p. 5. It was from this document that Mr. Butler prepared his affidavit.
Only after Mr. Butler’s affidavit and the government’s motion to dismiss was
filed did Mr. Burns identify specific persons he asserts should have been
contacted to submit letters. Docket No. 19 at p. 3.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 21 of 34 PageID #: <pageID>

22
business with him.” CR Docket No. 162. “I would not hesitate to work with
him on future business projects. There are opportunities for him.” CR Docket
No. 153. “I am certainly aware of the current status of what Tim has been
convicted of but wouldn’t hesitate to bring him into my business if the correct
opportunity arose.” CR Docket No. 145. “I would not hesitate to hire Tim into
my company as a project manager or developer.” CR Docket No. 132 p. 16. “I
would be willing to participate in following through to find several projects in
our community that could use his Construction Expertise.” CR Docket No. 132
p. 17. “I would not hesitate to work with his team to provide modular housing
solutions to those in need if the opportunity presents itself.” CR Docket No.
132 p. 20.
Mr. Burns’ § 2255 allegation does not defeat the competency
presumption under Strickland. See Wiggins v. Smith, 539 U.S. 510, 524
(2003) quoting 1 ABA Standards for Criminal Justice 4-4.1, commentary, p. 4-
55 (2d ed.1982) (“The lawyer also has a substantial and important role to
perform in raising mitigating factors both to the prosecutor initially and to the
court at sentencing. . . . Investigation is essential to fulfillment of these
functions.”). Mr. Butler submitted a total of not seven, but twenty-one
reference letters on Mr. Burns’ behalf, six of which specifically addressed the
need for the sentence imposed to afford Mr. Burn the opportunity to pay
restitution.
Further, Mr. Burns cannot claim prejudice under Strickland.
Mr. Burns has not shown that the two letters that were not included in the
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 22 of 34 PageID #: <pageID>

23
bevy of letters submitted to the court would have had the possibility of
changing the outcome at sentencing. Most of the evidence Mr. Burns says
should have been submitted was submitted. Mr. Burns has not shown what
the two letters that were not submitted would have stated. The court assumes
those two letters would have been merely cumulative of what was already
before the court.
The government requested a sentence at the top of the advisory range.
CR Docket No. 187 p. 126. Mr. Butler requested a downward variance on
behalf of Mr. Burns. Id. at p. 123. Mr. Burns was sentenced to 57 months for
each of the five counts of wire fraud to be run concurrently. Id. at p. 130. This
was at the bottom of Mr. Burns’ USSG range. Id.
Mr. Burns owed nearly half a million dollars in restitution; an amount
that could not be quickly earned. Id. at p. 129. Mr. Burns’ plea for leniency
so that he could work to pay the restitution he owed likely rang hollow since he
had made no effort to pay any amount prior to sentencing. Id. In addition, as
the sentencing court noted, he owed $7 million for losses accrued in
connection with a previous beef plant project in Aberdeen. Id. Mr. Burns’
statement that if he could be given probation, he could quickly earn the money
for the victims in this case probably seemed unrealistic to the court given the
fact he also owed $7 million to others who stood in line before the victims in
this case. The court balanced the need for punishment with the needs of the
victims as directed by 18 U.S.C. 3553(a). See CR Docket No. 187 at pp. 129-30.
Mr. Burns has failed to show that the court did not properly consider the need
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 23 of 34 PageID #: <pageID>

24
for Mr. Burns to work and provide restitution or that counsel was ineffective for
failing to alter that balance.
b. Failing to Object to the Table in the PSR
Mr. Burns claims that Mr. Butler was ineffective for failing to object to
the PSR table9 listing the number of victims and attributable losses to the
parties. Docket No. 19 p. 3. Firstly, the court notes that—as with a number of
other assertions made by Mr. Burns—this one is refuted by the record.
Mr. Butler did in fact object in writing and orally to the table in the
PSR—specifically to the inclusion of victims on the table who never testified
either at trial or at the sentencing hearing. CR Docket No. 169 at p. 1;
CR Docket No. 187 at pp. 32-33, 78-79. Nevertheless, the court examines the
substance of Mr. Burns’ claim.
Where an objection to a PSR, if it had been made and sustained, yields
the same potential sentence under the USSG, a petitioner under ' 2255 cannot
establish Strickland prejudice as a matter of law based on the petitioner=s
lawyer=s failure to lodge the objection. See Montanye v. United States, 77 F.3d
226, 230-231 (8th Cir. 1996) (where the petitioner was sentenced to 360
months incarceration, and the USSG range was 360 months to life under the
PSR as written, but also the same range if the objection had been made and
sustained, petitioner could not show prejudice). Cf. Sun Bear v. United States,
644 F.3d 700, 705 (8th Cir. 2011) (movant cannot state a claim under § 2255
9 The table included in the PSR is contained under the Loss heading on page
15. The table lists every Global Aquaponics investor, their investment amount,
and the deposit accounts. CR Docket No. 174 p. 15.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 24 of 34 PageID #: <pageID>

25
attacking district court’s sentence where the sentence was within statutory
limits and the same sentence could have been imposed even if the movant were
granted the § 2255 relief he requests).
Where counsel failed to make objections to a PSR and it cannot be
determined as a matter of law that those objections would not have affected the
petitioner=s sentence, a question of fact is created which requires an evidentiary
hearing. See West v. United States, 994 F.2d 510, 513 (8th Cir. 1993)
(evidentiary hearing required on petitioner=s ' 2255 motion where petitioner
alleged ineffective assistance of counsel for failure to object to PSR and it could
not be determined from the record that the objections would have not affected
the petitioner=s sentence); United States v. Ford, 918 F.2d 1343, 1350 (8th Cir.
1990) (holding a defendant in direct appeal established ineffective assistance of
counsel where counsel failed to object that the PSR did not give him credit for
acceptance of responsibility and, had defendant received such credit, his
sentencing range under the USSG would have been different).10
Mr. Butler made four separate objections to USSG enhancements in the
PSR before Mr. Burns’ sentencing hearing. CR Docket No. 117. None of these
10 The court recognizes that Montanye, West, and Ford all pre-date the Court=s
decision in Booker, which made the USSG advisory only. See United States v.
Booker, 543 U.S. 220, 245 (2005). However, even though the USSG are now
only advisory, the sentencing court is still required to calculate a defendant=s
sentencing range under the USSG and give Aserious consideration@ to the USSG
range before analyzing the factors under 18 U.S.C. ' 3553. Gall v. United
States, 552 U.S. 38, 45 (2007). Hence, this court concludes that the
Montanye, West, and Ford cases remain viable precedent for collateral
proceedings post-Booker.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 25 of 34 PageID #: <pageID>

26
objections specifically included the table. Id. Nor were there any objections to
the underlying facts presented in the PSR before the sentencing court. Id. At
the sentencing hearing, Mr. Butler incorrectly believed that the filed objections
to the USSG enhancements preserved factual objections to the PSR.
CR Docket No. 187 p. 34. Mr. Butler did raise an objection to the table under
paragraph 39 at sentencing. Id. at p 33. That objection was then taken up on
the merits.
Mr. Burns was also not prejudiced by the court overruling Mr. Butler’s
objection to the inclusion of the table. For purposes of offense level
computations under USSG,
[T]he Defendant is accountable for all acts and omissions
committed, aided, abetted, counseled, commanded, induced,
procured, or willfully caused by the Defendant; and in the case of a
jointly undertaken criminal activity (a criminal plan, scheme,
endeavor, or enterprise undertaken by the Defendant in concern
with others, whether or not charged as conspiracy), all acts and
omissions of others that were within furtherance or that criminal
activity, and reasonably foreseeable in connection with that
criminal activity; that occurred during the commission of the
offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that
offence.
USSG §§ 1B1.3(A)(1), (B).
Mr. Butler objected to the number of victims represented by the table in
the PSR—that out of the fourteen victims assigned to Mr. Burns, four did not
appear and offer testimony at trial or at sentencing. CR Docket No. 117; CR
Docket No. 187 p. 89. If requiring victims to appear and testify in court was
the measure of the USSG’s victim calculation, it may have prejudiced Mr.
Burns, however there is no such requirement. As the court stated, “There’s no
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 26 of 34 PageID #: <pageID>

27
requirement that each alleged victim has to appear here in court and testify.
The court can rely on other evidence to show that the transactions fell within
furtherance of the criminal activity or were reasonably foreseeable in
connection with that criminal activity.” CR Docket No. 187 p. 86;
USSG § 1B1.3(A)(1).
Mr. Burns had signature authority to most of the accounts listed on the
table, but more importantly, Mr. Burns was found guilty of five counts of wire
fraud for an expansive scheme involving four separate bank accounts and
many victims. CR Docket No. 187 pp. 32-33. The government presented
sufficient evidence at trial that fourteen victims were appropriately attributed
to Mr. Burns. Id. at pp. 91-92. The number of victims was used to determine
Mr. Burns’ sentencing range under the USSG. CR Docket No. 174 p. 16
(referencing USSG § 2B1.1(b)(2)(A)(i)). That Mr. Burns did not have exclusive
control over some of these accounts is irrelevant to the calculation of his
sentence under the USSG. USSG §§ 1B1.3(A)(1), (B); See United States v. Ross,
279 F.3d 600, 610 (8th Cir. 2002) (the Eighth Circuit held that orders of
restitution may even exceed the wire transactions submitted to a jury if related
to a broader scheme to defraud.). For restitution purposes, “[t]he district court
must order restitution ‘in the full amount of each victim's losses as determined
by the court’ and without consideration of the economic circumstances of the
defendant.” Ross, 279 F.3d at 609 (citing 18 U.S.C. § 3664(f)(1)(A)) (emphasis
added). The loss calculation presented in the table specifies which amounts
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 27 of 34 PageID #: <pageID>

28
are attributable to Burns and which amounts are attributable to Ritesman
using bold and italic font. CR Docket No. 174 p. 15.
Thus, Mr. Butler did not fail to object to the table as Mr. Burns claims,
he did so at sentencing and presented subsequent arguments when the
sentencing hearing reconvened. Such actions do not overcome the competency
presumption and the inclusion of the table did not affect the USSG calculation
to prejudice Mr. Burns.
c. Failing to Raise a Due Process Violation
Mr. Burns claims that Mr. Butler failed to raise a due process violation
as to the proceedings, thus prejudicing him. Docket No. 1 p. 5. Mr. Burns
stated, “[i]n the co-defendant’s sentence and judgment, [Mr. Burns] was listed
as jointly responsible for restitution for several victims. Consequently,
[Mr. Burns] was responsible for several victims and several hundred thousand
dollars of restitution BEFORE his sentence hearing.” Docket No. 19 pp. 4-5.
This court need not reach the merits of this claim. Whatever the merits
of Mr. Burns’ due process challenge to his court-ordered restitution, a motion
under § 2255 is not the correct vehicle by which to pursue it. Dyab v. United
States, 855 F.3d 919, 992 (8th Cir. 2017). Section 2255(a) allows “[a] prisoner
in custody . . . claiming the right to be released” to “move the court which
imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C.
§ 2255(a) (emphasis added).
“Because a dispute about restitution does not involve a claim of a right
to be released from custody, a prisoner cannot challenge the restitution portion
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 28 of 34 PageID #: <pageID>

29
of his sentence under § 2255.” Shephard v. United States, 735 F.3d 797, 798
(8th Cir. 2013) (per curiam); United States v. Bernard, 351 F.3d 360, 361 (8th
Cir. 2003). Despite Mr. Burns raising a due process issue under the umbrella
of an ineffective assistance of counsel claim, the result he seeks is a
modification in his restitution sentence. So even if Mr. Burns could show that
his due process rights were violated, he cannot obtain relief under § 2255. See
Shephard, 735 F.3d at 798 (Sixth Amendment claim not cognizable under
§ 2255 where ineffectiveness of counsel allegedly affected amount of
restitution); Cunningham v. United States, Nos. 1:14–CR–225 (LMB), 1:15–CV–
1262 (LMB), 2015 WL 6160722, at *4 (E.D. Va. Oct. 20, 2015) (“Cunningham's
alternative attempt to couch his restitution claims in the framework of
ineffective assistance of counsel also does not merit collateral relief because
‘[n]on-cognizable claims do not morph into cognizable ones by osmosis.’ ”)
(quoting United States v. Thiele, 314 F.3d 399, 402 (9th Cir. 2002)). Thus,
without addressing the merits of Mr. Burns’ due process claim, this court finds
that Mr. Burns’ claim cannot succeed under § 2255 and Eighth Circuit
precedent.
4. Failure to Impeach Selberg
Mr. Burns claims that “counsel was ineffective by improperly impeaching
[the] government’s key witness, Gregg Selberg.” Docket No. 1 p. 7. Mr. Burns
states that Mr. Butler had received a phone call from Jesse Lee Boss before
trial and that Mr. Boss gave Mr. Butler information about witness Gregg
Selberg. Id. Mr. Boss supposedly told Mr. Butler that, “Selberg had been fired
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 29 of 34 PageID #: <pageID>

30
from a sales job raising money for investment projects” and Selberg had made
“the same claims about this project as he was making in defendant’s case.” Id.
When the issue involves a matter of trial strategy, there is a strong
presumption that the strategy was sound and did not amount to ineffective
assistance. Bell, 535 U.S. at 698; Williams v. Bowersox, 340 F.3d 667, 672
(8th Cir. 2003). Whether or not to impeach a witness and how is a matter of
trial strategy. See Morelos v. United States, 709 F.3d 1246, 1250 (8th Cir.
2013) (rejecting ineffective assistance claim containing general averments that
counsel should have examined witnesses differently); United States v.
Villalpando, 259 F.3d 934, 939 (8th Cir. 2001) (“[courts] generally entrust
cross-examination techniques, like other matters of trial strategy, to the
professional discretion of counsel.”). “A failure to impeach constitutes
ineffective assistance when there is a reasonable probability that, absent
counsel’s failure, the jury would have had reasonable doubt of the petitioner’s
guilt.” Whitfield v. Bowersox, 324 F.3d 1009, 1018 (8th Cir.), vacated in part on
other grounds by 343 F.3d 950, 950 (8th Cir. 2003).
At trial, Mr. Butler cross-examined Gregg Selberg on a variety of issues
stemming from his work with Mr. Burns and Global Aquaponics, Inc.
CR Docket No. 186-1 pp. 179-194. Mr. Butler addressed Mr. Burns’
impeachment claim in his affidavit. “Defense counsel does not recall the
specifics of this phone call. But, because this information may not have been
utilized during cross examination, defense counsel assumes it was not as
compelling as is assumed to be the case by Burns.” Docket No. 15 p. 1.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 30 of 34 PageID #: <pageID>

31
Mr. Butler’s decision whether to use information from the phone call to
impeach Selberg falls within trial strategy. This court must defer to
Mr. Butler’s professional discretion. Strickland, 466 U.S. at 697. Competency
is presumed under these circumstances.
The government asserts that Mr. Burns fails to “provid[e] sufficient
information from which the court could conclude Burns has shown Selberg
would have been impeached at all with this information. . . . Burns has come
nowhere near demonstrating the jury would have had a reasonable doubt
about Burns’ guilt.” Docket No. 18 pp. 19-20. This court agrees that
Mr. Burns’ claims of impeachable information on Selberg are speculative.
Without more, Mr. Burns cannot prove prejudice. The evidence presented at
trial was sufficient for the jury to find Mr. Burns guilty of five counts of wire
fraud and did not depend solely on Selberg’s testimony. Docket No. 18 p. 20.
As the Eighth Circuit noted, in addition to Selberg (who was a salesman for
Global Aquaponics), another Global Aquaponics salesman testified at trial as
well as numerous victims. Burns, 990 F.3d at 625-26. Thus, tangential
impeachment of Selberg does not hold out the possibility of changing the
outcome at trial.
5. Prosecutorial Misconduct
Mr. Burns claims that Mr. Butler’s failure to investigate the allegations
made by Mr. Boss about Mr. Selberg resulted in unchecked prosecutorial
misconduct, thus prejudicing Mr. Burns. Docket No. 1 p. 7. Mr. Burns states
that the information provided by Mr. Boss implicated the government’s failure
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 31 of 34 PageID #: <pageID>

32
to disclose information about Mr. Selberg to the defense. Id. Mr. Burns fails to
state how he was prejudiced by Mr. Butler’s actions. Id. The government
responded that such a claim would be “procedurally defaulted.” Docket No. 18
p. 20 n.2. While it is true that a claim for prosecutorial misconduct should
have been raised on direct appeal lest it be waived, Mr. Burns presents the
issue of prosecutorial misconduct under the auspices of a Sixth Amendment
claim ineffective assistance of counsel. See Darden, 915 F.3d at 586. Such a
claim is appropriately raised for the first time in a § 2255 action. This court
addresses the merits of Mr. Burns’ claim.
Courts have found limited investigations into mitigating evidence to be
reasonable. See Strickland, 466 U.S. at 699, (concluding that counsel could
“reasonably surmise . . . that character and psychological evidence would be of
little help.”); Burger v. Kemp, 483 U.S. 776, 794 (1987) (concluding counsel's
limited investigation was reasonable because he interviewed all witnesses
brought to his attention, discovering little that was helpful and much that was
harmful). Mr. Butler did not fail to investigate Mr. Boss’ allegations.
Mr. Butler spoke with Mr. Boss before trial, after which he determined how to
proceed with Mr. Burns’ case. Mr. Burns claims that Mr. Boss contacted
Mr. Butler and “shared information regarding impeaching information
regarding Gregg Selberg.” Docket No. 19 p. 4. Determinations of how to use
such information amount to trial strategy. In hindsight this court must defer
to the strategy decisions of trial counsel.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 32 of 34 PageID #: <pageID>

33
Further, Mr. Burns has not shown prejudice by Mr. Butler’s supposed
failure to investigate and expose the supposed prosecutorial misconduct. As
the government stated, “[Mr. Burns] has made no showing of how the
prosecutor might have known about the information [on Selberg], or that it was
withheld from the defense.” Docket No. 18 p. 20 n. 2. Mr. Burns’ allegations
fail to demonstrate that a jury would have had reasonable doubt about his guilt
had the information relayed by Mr. Boss been known by the jury. Id.
D. No Hearing Is Warranted.
“While ‘[a] petitioner is entitled to an evidentiary hearing on a section
2255 motion unless the motion and the files and the records of the case
conclusively show that [he] is entitled to no relief,’ no hearing is required ‘where
the claim is inadequate on its face or if the record affirmatively refutes the
factual assertions upon which it is based.’ ” New v. U.S., 652 F.3d 949, 954
(8th Cir. 2011) (quoting Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th
Cir. 2008)). “A district court may deny an evidentiary hearing where (1)
accepting the petitioner’s allegations as true, the petitioner is not entitled 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.’ ” Guzman-Ortiz v. United States, 849 F.3d 708, 715 (8th
Cir. 2017) (quoting United States v. Sellner, 773 F.3d 927, 929-30
(8th Cir. 2014)).
Mr. Burns’ claims are rebutted by the record or, even if taken as true, do
not warrant relief. Therefore, no evidentiary hearing is necessary.
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 33 of 34 PageID #: <pageID>

34
CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends granting the government’s motion to dismiss [Docket
No. 17], and dismissing Mr. Burns’ petition [Docket No. 1] with prejudice.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Objections must be timely and specific in order to require de novo review by the
district court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 9th day of September, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
Case 4:22-cv-04036-KES Document 20 Filed 09/09/22 Page 34 of 34 PageID #: <pageID>