USA v. Carr et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff,
v.
DAVID CARR,
Defendant.
Case No. 19-20079-JAR
25-2121
MEMORANDUM & ORDER
Petitioner David Carr, a federal prisoner proceeding pro se, filed a Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 462). Carr claims his counsel
rendered ineffective assistance of counsel in a myriad of ways. The Government has responded,
and Carr has filed a reply. The Court now denies Carr’s motion and also denies Carr a certificate
of appealability (“COA”).
I. Background and Procedural History
On February 14, 2023, a jury convicted Carr of conspiracy to distribute and possess with
intent to distribute methamphetamine, kidnapping, and use of a firearm in furtherance of a drug
trafficking crime.1
On July 6, 2023, this Court imposed within-Guideline-range sentences of: life
imprisonment on the kidnapping count; 480 months on the drug count, concurrent with the
1 Doc. 334.
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kidnapping sentence; and 120 months on the firearm count, consecutive to the drug and
kidnapping sentences.2
Carr’s appellate counsel filed an Anders brief alerting the Tenth Circuit that there was no
good faith basis to challenge Carr’s conviction or sentence. Appellate counsel noted that: the
jury instructions correctly stated the law; there were no errors in this Court’s rulings on trial
objections and evidentiary matters; the evidence was sufficient to support the convictions on
each count; there was a basis for the guideline enhancements applied by this Court; and that there
was no basis to challenge the reasonableness of the sentence.
On March 15, 2024, the Tenth Circuit dismissed Carr’s appeal.3 On March 14, 2025,
Carr filed the instant § 2255 motion.
II. Trial Evidence4
On April 18, 2019, Mariah Vieni and her boyfriend D.B. were at a “trap house” at 1605
Ruby in Kansas City, Kansas to procure and use methamphetamine from codefendant Brandon
West who routinely sold methamphetamine there. West was routinely supplied by Carr; and
Carr was routinely supplied by codefendant James Michael Poterbin. West ran out of
methamphetamine that day and Vieni offered to arrange to buy more from a woman she knew,
Denise Byrd. West contacted Carr and Carr approved the transaction. West provided $500 to
Vieni to buy the methamphetamine. West testified that he understood that this $500 belonged to
Carr and Poterbin. Vieni left the house, while West, D.B. and others waited at the house. Byrd
2 Doc. 386.
3 Doc. 444.
4 See Doc. 373 at 6–11 (Presentence Report Offense Conduct); Doc. 426 at 5–17 (Court’s oral ruling
denying Carr’s motion for judgment of acquittal or new trial).
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stole Vieni’s money. When Vieni did not return to the house after more than an hour, West and
the others believed Vieni had stolen the money.
West ordered D.B. upstairs and ordered codefendant Randi Serna to watch him. West
contacted Carr about Vieni’s alleged theft of the drug money, and Carr in turn called Poterbin.
Historical cell phone tower records and other geolocation data showed that shortly after Carr
called Poterbin, Poterbin left his house, traveled to a location in close proximity to Carr’s
location and then they each, in separate vehicles, traveled to the Ruby house, arriving at
approximately the same time.
Others in the Ruby house saw Carr and Poterbin arrive and go upstairs where D.B. was
being held by Serna. Brandon West testified that he saw Carr and Poterbin brandishing firearms
as they went upstairs. D.B. testified that they pointed their firearms at him, forcing him to go to
another upstairs room. Carr and Poterbin ordered D.B. to disrobe and forced him to lay on his
stomach with his wrists ziptied together. Codefendant Randi Serna was in an adjacent room
upstairs, but saw Carr and Poterbin go in the other room with D.B. The only individuals in that
room were Carr, Poterbin, and D.B. Carr and Poterbin acted in concert in torturing D.B. Carr
later told Byrd that in retaliation for Vieni stealing from him, he and Poterbin took it out on D.B.
And Poterbin later told codefendant Bryan Spaulding that despite the small amount of money,
they tortured D.B. based on principle.
D.B. was pistol whipped. Someone hit D.B.’s ankles with a hammer, and unsuccessfully
attempted to cut off D.B.’s finger. Serna testified that she heard them pistol whipping D.B. and
heard a gunshot. D.B. sustained a gunshot to one leg and may have sustained a gunshot to the
other leg. During the torture session, Carr called Vieni on D.B.’s phone, demanding that Vieni
give back the money. During the phone call, D.B. could hear Vieni and Carr’s conversation and
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Vieni could hear Carr and Poterbin torturing D.B. During his testimony, D.B. identified Carr
and Poterbin as the individuals who had tortured him, but could not identify which one shot him,
because he was lying face down when he was shot.
After they tortured D.B. over the course of 40 minutes, Carr and Poterbin dragged D.B.
downstairs where they bound him, covered his head with a shirt, and wrapped him in filthy tarp.
Carr and Poterbin discussed what to do with Serna, a potential witness to their torture of D.B.
They decided to force Serna to participate; Poterbin handed her a knife and ordered Serna to stab
D.B. They then left D.B. for dead in the Ruby house. D.B. laid there for more than a day,
severely injured, unable to walk or see, bleeding, his open sores covered in maggots. Vieni and
family members found D.B. there and rescued him from the house. When West advised Carr
that D.B. had been rescued, Carr ordered West to burn down the Ruby house. West set the house
on fire, and shortly thereafter, Carr picked West up from a nearby location.
III. Standards
Carr seeks relief under § 2255 on the basis that he received ineffective assistance of
counsel in eight ways, which the Court will address in turn.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the assistance of counsel for his defence.”5 A successful claim of
ineffective assistance of counsel must meet the two-pronged test set forth in Strickland v.
Washington.6 First, a petitioner must show counsel’s performance was deficient in that it “fell
5 U.S. Const. amend. VI.
6 466 U.S. 668 (1984).
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below an objective standard of reasonableness.”7 This standard is “highly demanding.”8
Strategic or tactical decisions on the part of counsel are presumed correct, unless they were
“completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible
defense strategy.”9 In all events, judicial scrutiny of the adequacy of attorney performance must
be strongly deferential: “[A] court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must overcome
the presumption that under the circumstances, the challenged action might be considered sound
for trial strategy.”10 Moreover, the reasonableness of the challenged conduct must be evaluated
from counsel’s perspective at the time of the alleged error, and “every effort should be made to
‘eliminate the distorting effects of hindsight.’”11
To prevail on Strickland’s performance prong, a defendant “must show ‘that counsel’s
representation fell below an objective standard of reasonableness.’”12 There is a “strong
presumption that counsel provided effective assistance.”13 “A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from
counsel’s perspective at the time.”14 “[T]o show that his counsel was deficient, [defendant] must
7 Id. at 688.
8 Kimmelman v. Morrison, 477 U.S. 365, 382 (1986).
9 Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (alteration in original) (quoting Hatch v. Oklahoma,
58 F.3d 1447, 1459 (10th Cir. 1995)).
10 Strickland, 466 U.S. at 689 (quotation and internal citation omitted).
11 Edens v. Hannigan, 87 F.3d 1109, 1114 (10th Cir. 1996) (quoting Strickland, 466 U.S. at 689).
12 United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Strickland, 466 U.S. at 688).
13 United States v. Holloway, 939 F.3d 1088, 1103 (10th Cir. 2019) (quoting United States v. Kennedy, 225
F.3d 1187, 1197 (10th Cir. 2000)); see also Strickland, 466 U.S. at 689 (“Judicial scrutiny of counsel’s performance
must be highly deferential.”).
14 Strickland, 466 U.S. at 689.
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demonstrate that the errors were so serious that ‘counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.’”15
“The Supreme Court has recognized the deficient performance prong ‘is necessarily
linked to the practice and expectations of the legal community’ as well as the ‘prevailing norms
of practice as reflected in American Bar Association standards and the like.’”16 Counsel has a
“critical obligation . . . to advise the client of ‘the advantages and disadvantages of a plea
agreement.’”17 Further, counsel’s “ignorance of a point of law that is fundamental to his case
combined with his failure to perform basic research on that point is a quintessential example of
unreasonable performance under Strickland.”18
Second, a petitioner must show his counsel’s deficient performance actually prejudiced
his defense.19 To prevail on this prong, a petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.”20 A “reasonable probability” is a “probability sufficient to undermine
confidence in the outcome.”21 This, in turn, requires courts to focus on “the question whether
counsel’s deficient performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.”22 Strickland’s prejudice prong requires a defendant to “‘show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
15 Hanson v. Sherrod, 797 F.3d 810, 826 (10th Cir. 2015) (quoting Strickland, 466 U.S. at 687).
16 United States v. Kearn, 578 F. Supp. 3d 1221, 1231 (D. Kan. 2022) (quoting Padilla v. Kentucky, 559
U.S. 356, 366 (2010)).
17 Padilla, 559 U.S. at 370 (quoting Libretti v. United States, 516 U.S. 29, 50–51 (1995)).
18 Hinton v. Alabama, 571 U.S. 263, 274 (2014).
19 Strickland, 466 U.S. at 691–92.
20 Id. at 694.
21 Id. at 689.
22 Lockhart v. Fretwell, 506 U.S. 364, 372 (1993) (citations omitted).
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proceeding would have been different.’”23 “In the context of pleas a defendant must show the
outcome of the plea process would have been different with competent advice.”24 When, as in
this case, a defendant alleges ineffective assistance led him to reject a plea offer, a defendant
must establish that “but for the ineffective advice of counsel there is a reasonable probability”
that:
[1] defendant would have accepted the plea . . . [2] the prosecution
would not have withdrawn it in light of intervening circumstances
. . . [3] the court would have accepted its terms, and . . . [4] the
conviction or sentence, or both, under the offer’s terms would have
been less severe than under the judgment and sentence that in fact
were imposed.25
“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.”26 This standard “does not require that the petitioner show that counsel’s deficient
conduct more likely than not altered the outcome in the case . . . .”27 “However, mere
speculation is not sufficient to satisfy this burden.”28
A petitioner must satisfy both Strickland prongs to establish a claim of ineffective
assistance of counsel, and a failure to prove either one is dispositive. “The performance
component need not be addressed first. ‘If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice . . . that course should be followed.’”
Finally, Petitioner appears pro se. Therefore, his filings are to be construed liberally and
not held to the standard applied to an attorney’s pleadings.29 If a petitioner’s motion can be
23 Lafler v. Cooper, 566 U.S. 156, 163 (2012) (quoting Strickland, 466 U.S. at 694).
24 Id.
25 Kearn, 2022 WL 37648, at *7 (quoting Lafler, 566 U.S. at 164).
26 Strickland, 466 U.S. at 694.
27 Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011) (quoting Strickland, 466 U.S. at 693).
28 Id. (citations omitted).
29 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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reasonably read to state a valid claim on which he could prevail, a court should do so despite a
failure to cite proper legal authority or follow normal pleading requirements. It is not, however,
“the proper function of the district court to assume the role of advocate for the pro se litigant.”30
For that reason, the Court shall not supply additional factual allegations to round out a
petitioner’s claims or construct a legal theory on his behalf.
IV. Discussion
Carr alleges that his counsel31 rendered ineffective assistance by: (1) failing to challenge
the sufficiency of the kidnapping evidence or the timing or number of times the victim was shot;
(2) failing to object to the jury instruction on the elements of § 924(c) and failing to seek a
lesser-included instruction on all counts; (3) failing to file motions to suppress and failing to
“get[] a larger time frame of call pings”32; (4) failing to argue that the convictions for drug
conspiracy and § 924(c) violated the Double Jeopardy Clause; (5) failing to challenge the
sentence under Apprendi; (6) failing to request necessary pretrial discovery materials or file
appropriate motions for disclosure of exculpatory evidence; (7) failing to inform Carr as part of
the plea negotiations that kidnapping was punishable by life in prison; and (8) failing to
challenge the sentence as grossly disproportionate to the offense and failing to adequately
consider mitigating factors including Carr’s personal history and characteristics.
The Court addresses each in turn.
30 Id.
31 Carr was briefly represented by Assistant Federal Public Defenders Che Ramsey and Tim Burdick, then
by Michael Duma, and finally by Dionne Scherff, who represented him during most of the pretrial phase, and during
the trial, post-trial motions, and sentencing phases.
32 Doc. 462 at 7.
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A. Failure to challenge the sufficiency of evidence
Carr argues that his counsel, Dionne Scherff, rendered ineffective assistance by failing to
challenge the sufficiency of the kidnapping evidence or the timing or number of times the victim
was shot. But Ms. Scherff did challenge the sufficiency of the kidnapping evidence, in Carr’s
Motion for Judgment of Acquittal, or in the Alternative a New Trial.33 This Court denied that
motion, discussing the ample evidence that supported Carr’s kidnapping conviction.34
Furthermore, Carr’s appellate counsel filed an Anders brief, conceding that there was sufficient
evidence to support the convictions, including the kidnapping conviction.35
Moreover, Carr fails to specify or explain how the evidence of kidnapping was
insufficient. As the Tenth Circuit has instructed, “the allegations must be specific and
particularized, not general or conclusory.”36 And, a court need not “fashion Defendant’s
arguments for him where his allegations are merely conclusory in nature and without supporting
factual averments.”37
The only specificity Carr offers is suggesting that his counsel should have focused on the
timing and number of gunshots inflicted on D.B., apparently to challenge the credibility of the
victim. But Ms. Scherff discussed with Carr the fact that the medical records showed that D.B.
suffered multiple injuries, including a gunshot wound; and that there was no evidence that D.B.
sustained these injuries elsewhere or at some other time.38
33 Doc. 342 at 6–8.
34 Doc. 426 at 12–16 (Transcript of Court’s oral ruling denying motion for judgment of acquittal or new
trial).
35 See United States v. Carr, No. 23-3127 (10th Cir. 2024), Doc. 46 at 9–11; Doc. 68 at 11–12.
36 Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995) overruled on other grounds by Daniels v.
United States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001).
37 United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
38 Doc. 491-1 at 1 (Scherff, D. Aff.).
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To be sure, Ms. Scherff cross-examined D.B. extensively about his inability to see who
was beating him, about his prior statements that he did not know who shot him and that he did
not remember being shot a second time, and about Brandon West’s role in the torture.39 But Ms.
Scherff explained that she made a strategic decision not to challenge when D.B. was shot and
how many times he was shot.40 This strategic decision makes sense given D.B.’s testimony that
he could not see who shot him, given the undisputed evidence that D.B. sustained many serious
injuries from being beaten, shot and stabbed, and given the lack of evidence that those injuries
were incurred anywhere other than the Ruby house.
Ms. Scherff made the strategic decision that it would have risked undermining the
credibility of Carr and his counsel to suggest that D.B. incurred the injuries elsewhere, or had
shot himself, or to question D.B. in detail about whether he was shot once or twice. After all,
Carr’s defense was that he was not involved in torturing D.B. at all.41 Reasonable strategic
decisions such as this one are not a proper basis to argue ineffective assistance of counsel.42
B. Jury Instructions
Carr claims that counsel rendered ineffective assistance by failing to object to the jury
instruction that listed the elements of 18 U.S.C. § 924(c), and in failing to seek a lesser-included
instruction on all three counts. But Carr’s argument is conclusory. He offers no basis or
explanation of how this jury instruction misstated the law or was otherwise improper, nor how or
why lesser-included offenses should have been instructed.
39 Doc. 422 at 452, 455–56, 458–59, 468.
40 Doc. 491-1 at 1 (Scherff, D. Aff.).
41 Id.
42 See Meek v. Martin, 74 F.4th 1223, 1262–63 (10th Cir. 2023) (“[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable—unless they were
completely unreasonable, not merely wrong.” (internal quotation marks and internal citation omitted)).
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Moreover, the § 924(c) instruction was jointly proposed by Carr and the government and
was an accurate statement of the law, consistent with the Tenth Circuit Pattern Instruction.43 Ms.
Scherff provided to Carr copies of the Tenth Circuit Pattern Instruction and discussed with him
the instructions for kidnapping and conspiracy to possess with intent to distribute
methamphetamine. Carr expressed no concern with the instructions that were filed.44 Counsel
was not ineffective for failing to object, and Carr cannot demonstrate prejudice, given that the
instruction accurately stated the law.45
C. Suppression Motion
Carr argues that counsel rendered ineffective assistance by failing to file motions to
suppress and failing to “get[] a larger time frame of call pings.”46 Yet again, Carr does not
provide a basis for this claim, as he does not identify any evidence that was obtained illegally
and subject to suppression. As Ms. Scherff explained, there simply was no search or seizure that
may have been subject to suppression, for most of the evidence was “historical” and Carr’s own
brief statement to law enforcement was properly Mirandized.47 Most of the evidence came from
witness interviews; there was very little physical evidence.48 To the extent there was physical
evidence, it was likely destroyed when Brandon West burned down the house as Carr ordered
him to do.
43 See Pattern Crim. Jury Instr. 10th Cir. 2.45.1 (2025); Doc. 312 at 12–13; Doc. 332 at 20–21.
44 Doc. 491-1 at 2.
45 See United States v. Babcock, 40 F.4th 1172, 1177 (10th Cir. 2022) (explaining that it is likely not
deficient performance to not raise an argument that lacks merit; and a defendant is not prejudiced by failing to raise
a meritless claim).
46 Doc. 462 at 7.
47 Doc. 491-1 at 2 (Scherff, D. Aff.).
48 Doc. 491-2 at 1 (Duma, J. Aff.).
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In his Reply, Carr for the first time argues that counsel should have challenged D.B.’s
identification of the people involved, because law enforcement showed D.B. only single photos,
rather than a photo lineup for each suspect. Again, Carr provides no factual support for this
argument, nor any legal basis that D.B.’s identification was the product of an improper,
suggestive identification. Ms. Scherff had “repeatedly told Mr. Carr that while some of the
government’s witnesses may have credibility issues that could be attacked, everyone involved in
the incident knew Mr. Carr, so there was no potential for misidentification.”49
Carr further argues that his counsel failed to obtain a larger time frame of the cell phone
call pings, which he alleges would have shown that his cell phone routinely pinged off the same
cell towers, on dates other than the date of the crime. This, of course, does not support an
argument that counsel should have sought suppression of evidence; at best, it might support an
argument that counsel should have sought more discovery on the cell phone tower records.
Ms. Scherff “hired a nationally renowned cell site and geolocation expert to attack, to the
extent possible, and put the government’s location evidence into context.”50 Ms. Scherff and
Carr never discussed expanding the scope of cell tower or call records to obtain. More records
would not have been material to Carr’s defense.51 The defense was that Carr did not torture
D.B., and the defense focused more on “the lack of communication from Brandon West to Mr.
Carr” after West suspected Vieni had stolen the $500.52
Ms. Scherff further explained that it was also a strategic decision to not seek cell phone
tower records showing Carr in the vicinity of the Ruby house on other dates. Counsel explained
49 Doc. 491-1 at 6 (Scherff, D. Aff.).
50 Id. at 2.
51 Id.
52 Id.
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that distancing Carr from the activities at the Ruby house (a known drug house) was a strategic
decision.53 Given that Carr was also charged with a drug conspiracy, this was not a decision
indicative of ineffective assistance.
Furthermore, Carr cannot demonstrate that the outcome of the proceedings would have
been any different had counsel obtained and offered a larger time frame of these records. There
was overwhelming evidence that at the time D.B. was being beaten, shot, stabbed and left for
dead in the Ruby house, Carr and codefendant Poterbin were there. The cell tower records
showing Carr’s proximity to the scene of the crime served to corroborate the testimony of
multiple witnesses who were in the Ruby house during the kidnapping, including Randi Serna
who was in an adjacent room while Carr and Poterbin tortured D.B., and who participated in the
crime by stabbing D.B. Thus, Carr cannot show prejudice.
D. Double Jeopardy
Carr further claims that his counsel was ineffective by failing to argue that the
convictions for conspiracy to distribute methamphetamine and using a firearm in furtherance of a
drug trafficking crime violated the Double Jeopardy Clause of the Fifth Amendment. But Carr
cannot demonstrate that his counsel was ineffective for not making such an utterly frivolous
argument. The Double Jeopardy Clause provides that no person may be “twice put in jeopardy”
“for the same offence.”54 Carr stood trial and was convicted of these two separate and distinct
offenses: a drug conspiracy and using a firearm in furtherance of a drug trafficking crime.
53 Id.
54 U.S. Const. amend. V.
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E. Apprendi
Carr argues that counsel rendered ineffective assistance by failing to challenge the
sentence under Apprendi, because the drug quantity and possession of firearms were not proven
beyond a reasonable doubt and because counsel failed to challenge the applied sentencing
enhancements for drug quantity or possession of firearms. But neither argument is accurate.
Here, the only facts that affected the statutory penalties were, in fact, submitted to the
jury—the amount of methamphetamine involved in the conspiracy and whether the defendant
brandished or discharged a firearm.55 The jury’s verdict included answers to special
interrogatories asking them to find, beyond a reasonable doubt, the amount of methamphetamine
and whether the defendant brandished or discharged a firearm.56 Thus, there was no violation of
Apprendi,57 and counsel had no basis to challenge the sentence under Apprendi.
Carr also seems to conflate the requirements of Apprendi with the Court’s process of
determining what sentencing guideline enhancements applied. The Court applied enhancements
consistent with the jury’s verdict.58 But there was no legal basis to challenge these
enhancements under Apprendi, given that the jury specifically found the underlying facts beyond
a reasonable doubt.
F. Discovery Motions
Carr argues that his counsel rendered ineffective assistance by failing to request
necessary pretrial discovery materials or failing to file appropriate motions for disclosure of
55 Doc. 334 at 1–3.
56 Id.
57 Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ( “Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.”).
58 Counsel objected to the two-level enhancement for use of a weapon on the basis that Carr denied being
present and torturing D.B. with a weapon. See Doc. 373 at 29 (Presentence Report).
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exculpatory evidence. Again, Carr fails to specify or detail what necessary discovery materials
counsel failed to request or what discovery motions counsel failed to file.
Moreover, the criminal pretrial and case management order used in this case and widely
in this district was designed to make discovery motions largely unnecessary.59 It specifically
provided that “a specific request is not necessary to trigger the obligations set forth in [the] Order
or any discovery-related rule or statute,” including exculpatory Brady materials.60 Counsel was
not ineffective for failing to make a request that was already covered in and deemed unnecessary
by the pre-trial order. The docket sheet in this case reveals that the government provided robust
discovery, documenting 37 rounds of discovery provided to the defendants.61
Furthermore, Ms. Scherff reviewed the extensive discovery with Carr on multiple
occasions, provided a complete set of discovery to him, hired an investigator and provided him
with the results of that investigation, and retained an expert in cell site and geolocation.62 Ms.
Scherff had “over 36 meetings with Mr. Carr and sent him a minimum of 120 pieces of legal
correspondence.”63 Carr simply fails to show that his counsel provided ineffective assistance on
this basis.
G. Plea Negotiations
Before deciding whether to plead guilty, a defendant is entitled to effective assistance of
counsel.64 Carr argues that counsel rendered ineffective assistance by failing to inform him as
59 Doc. 61.
60 Id. at 6.
61 See Doc. 298 (Notice of Dissemination of Discovery Round 37 by USA).
62 Doc. 491-1 at 3–4 (Scherff, D. Aff.).
63 Id. at 9.
64 Padilla v. Kentucky, 559 U.S. 356, 364 (2010); Lafler v. Cooper, 566 U.S. 156, 168 (2012) (“If a plea
bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to
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part of the plea negotiations that kidnapping was punishable by life in prison. Carr claims his
counsel told him that “he could only get 40 years because everything would run in with Count
one [conspiracy to distribute methamphetamine] and it has a cap of 40 years.”65 Carr claims that
if he knew he could receive a life sentence, he would have accepted a binding plea offer with a
range of 15–18 years.66
Carr’s claim is contradicted by the record. The original Indictment,67 the Superseding
Indictment,68 and the Second Superseding Indictment69 all included a penalty sheet advising that
the statutory maximum sentence for the kidnapping count was life in prison. Carr received
copies of these Indictments, including the penalty pages, from one or more counsel.70 And
during Carr’s February 25, 2020 arraignment on the original Indictment, the United States
Magistrate Judge informed Carr that the maximum penalty for the kidnapping charge was “[n]ot
more than life imprisonment.”71
Moreover, additional correspondence and details provided by two of Carr’s counsel
further undermine his claim. Shortly after Carr was initially charged, on May 8, 2020, Mr.
Duma explained to him that his guideline range on the kidnapping count was 360 months to life
in prison, and the firearm count carried a mandatory, consecutive 10-year sentence,72 and sent
accept it”); United States v. Washington, 619 F.3d 1252, 1259 (10th Cir. 2010) (“A defendant has the right to make a
reasonably informed decision whether to accept a plea offer.”).
65 Doc. 462 at 12.
66 Id.
67 Doc. 1.
68 Doc. 87.
69 Doc. 158 at 7.
70 Doc. 491-4 at 1 (Burdick, T. Aff.); Doc. 491-1 at 6 (Scherff, D. Aff.).
71 Doc. 485 at 4.
72 Doc. 491-2 at 2 (Duma, J. Aff.).
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him a letter on June 3, 2020, memorializing this conversation.73 On May 15, 2020, Mr. Duma
again explained to Carr that he was likely a criminal history category VI and that the guidelines
on the kidnapping charge was 360 months to life in prison.74 Ms. Scherff also discussed possible
sentencing outcomes with Carr, referencing Mr. Duma’s letter that advised he faced up to life in
prison.75
Because of his exposure to a life sentence, Ms. Scherff encouraged Carr to consider a
binding plea pursuant to Rule 11(c)(1)(C), “because we knew his guideline range could be as
high as life.”76 In fact, Ms. Scherff talked to Carr about this “many times.”77 Ms. Scherff
highlighted cases in which defendants convicted of kidnapping received substantial sentences,
such as 480 months or 600 months. She also highlighted the risk of going to trial, given that
Carr was so well known to the numerous witnesses who would be testifying about his
involvement in the kidnapping and torture.78
Ms. Scherff engaged in plea negotiations with the government. Carr rejected several
offers by the government, and the government in turn rejected his offers of 10-year and 15-year
binding plea agreements.79 In December 2021, Ms. Scherff sent Carr the government’s plea
offer of a 12–20 year binding plea in writing. She then met with Carr and explained that other
73 Doc. 491-3.
74 Doc. 491-2 (Duma, J. Aff.).
75 Doc. 491-1 at 6 (Scherff, D. Aff.).
76 Id.
77 Id.
78 Id. at 7.
79 Id. at 7–8.
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codefendants’ presentence reports were coming back with guideline sentences of life in prison.
She told him he should expect the same. Nonetheless, Carr rejected the government’s offer.80
In November 2022, the government offered a binding plea with a 15–18 year range. Ms.
Scherff met with Carr on December 8, 2022, and advised him he “had to seriously consider
accepting the government’s offer.”81 She told Carr that “if he was convicted at trial he was likely
to be in federal custody for the rest of his life.”82 Ms. Scherff said she and Carr had many
discussions like this. Carr rejected this plea offer.83
Carr countered with other plea offers that were declined by the government. Ms. Scherff
sent Carr a letter noting that they had discussed the sentencing exposure on his case numerous
times and that she was confident that he was fully informed of the potential sentencing
consequences if he was convicted at trial, but she nonetheless offered to discuss it further if he
had any questions.84
On January 4, 2023, Ms. Scherff advised Carr that the Court would conduct a Lafler/Frye
hearing at the limine conference, including that the government offered a binding plea to the
kidnapping charge with a 15–18 year range, which Mr. Carr had rejected.85 At the limine
hearing on January 5, 2023, this Court conducted a Lafler/Frye inquiry, confirming that Carr had
received all of the government’s plea offers.86 Ms. Scherff confirmed that she had relayed the
80 Id. at 8.
81 Id.
82 Id.
83 Id.
84 Id.
85 Id. at 9.
86 Doc. 299 at 8.
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offers to Carr personally and in writing.87 Ms. Scherff further confirmed that Carr had a full
opportunity to discuss the offers with her and that she evaluated the risks and benefits of
accepting or rejecting the plea offers.88 Ms. Scherff added that as recently as December 2022,
she reviewed with Carr his sentencing exposure should he be convicted by a jury, as compared to
the offers from the government.89 The Court asked Carr if he agreed with his counsel’s
statements, and he said that he did.90
Carr simply does not meet his burden of establishing that he was not fully advised of the
risk of proceeding to trial and the benefits of accepting the government’s plea offer. On the
contrary, the record clearly establishes that Carr knew kidnapping was punishable by up to life in
prison, that he was repeatedly advised of the risks of proceeding to trial, and that Ms. Scherff
repeatedly encouraged him to strongly consider the government’s plea offers given the high
likelihood he would be convicted at trial and the substantial sentence he would face.
H. Sentencing
Carr argues that his counsel rendered ineffective assistance by failing to challenge the
sentence as grossly disproportionate to the offense and by failing to adequately consider and
present mitigating factors, including Carr’s personal history and characteristics.
Although Carr claims that his sentence was grossly disproportionate, and thus violated
the Eighth Amendment’s prohibition on cruel and unusual punishment, “‘[g]enerally, a sentence
within the limits imposed by statute is neither excessive nor cruel and unusual under the Eighth
87 Id.
88 Id. at 9.
89 Id.
90 Id.
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Amendment.’”91 Carr’s life sentence on the kidnapping count was within the statutory limit and
within the Sentencing Guideline range and thus did not violate the Eighth Amendment. Counsel
did not, therefore, perform deficiently by failing to raise such a challenge.
Nonetheless, Ms. Scherff advocated for a downward variance, a sentence of 120 months
on the kidnapping count, which she argued was a reasonable sentence that was sufficient but not
greater than necessary.92 She also advocated for a concurrent 120-month sentence on the drug
count and a 120-month (mandatorily consecutive) sentence on the firearm count, for a total
controlling sentence of 240 months.93 Ms. Scherff further argued that a guideline sentence
would effect an unwarranted sentencing disparity with Carr’s codefendants as well as with
defendants nationwide with similar records and similar conduct.94
Moreover, Ms. Scherff did consider and present mitigating factors in Carr’s history and
characteristics, including his use of alcohol, marijuana, crack cocaine and methamphetamine
beginning at the age of 12 to 13, and the neurological effect of such early drug use on a person’s
capacity to evaluate consequences and control their behavior. Ms. Scherff also apprised the
Court of Carr’s long struggle with mental health, his solid work history and the strong family
support he still enjoyed.95 Carr does not point to any mitigation evidence that his counsel failed
to present or that the Court did not consider.
91 United States v. Tolliver, 730 F.3d 1216, 1231 (10th Cir. 2013) (quoting United States v. Gillespie, 452
F.3d 1183, 1190 (10th Cir. 2006) (internal quotation marks omitted)); see also United States v. Angelos, 433 F.3d
738, 750 (10th Cir. 2006) (noting the Supreme Court has only struck down two Eighth Amendment challenges to
sentences “over the past century, . . . a sentence of fifteen years in chains and at hard labor, plus permanent
surveillance and civil disabilities, for the crime of falsifying a public document . . . [and] a sentence of life
imprisonment without the possibility of parole imposed under South Dakota law against a nonviolent recidivist
whose final crime was writing a ‘no account’ check with the intent to defraud”).
92 Doc. 371 at 2–3.
93 Id. at 2.
94 Id. at 4–6.
95 Id. at 7–12.
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In his Reply, Carr further claims that counsel gave ineffective assistance by failing to
argue that the Court’s application of a six-level enhancement for the demand for ransom was
impermissible double-counting. But Ms. Scherff did object to the ransom enhancement,96
arguing that the trial evidence did not show that Carr demanded a ransom, a codefendant did.
The Court nonetheless applied the enhancement under principles of relevant conduct.97 And,
counsel did not render ineffective assistance in not arguing that this enhancement constituted
double-counting, because such an argument would be wholly without merit. The guideline for
kidnapping does not include conduct constituting a demand for ransom. Thus, the guideline
enhancement for a demand for ransom could not constitute double-counting. In short, Carr has
not met his burden to establish ineffective assistance with respect to his sentence.
V. CONCLUSION
Carr has failed his burden of showing ineffective assistance of counsel. He has failed to
show deficient performance and/or resulting prejudice in any claimed respect, as Strickland
requires. He has failed to rebut the presumption that counsel’s performance was within the wide
range of professionally competent assistance and has failed to show that counsel performed
deficiently. Nor has Carr met his burden of showing that counsel’s alleged deficient
performance prejudiced him by having an adverse effect on his defense, that is, a showing that
but for counsel’s deficient performance, there is a reasonable probability that the result of the
proceeding would have been different.
96 Doc. 373 at 28.
97 Id.
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Finally, because the motion and the files and records of the case conclusively show that
Carr is not entitled to relief, this Court denies Carr’s request for a hearing on his claims.98
VI. Certificate of Appealability
Under Rule 11 of the Rules Governing § 2255 Proceedings, the Court must issue or deny
a COA when making a ruling adverse to the petitioner. “A certificate of appealability may issue
. . . only if the applicant has made a substantial showing of the denial of a constitutional right.”99
To satisfy this standard, the movant must demonstrate that “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.”100 For the reasons
stated above, the Court finds that Petitioner has not made this showing and, therefore, denies a
certificate of appealability as to its ruling on his § 2255 motion.
IT IS THEREFORE ORDERED BY THE COURT that Carr’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 462) is DENIED.
IT IS SO ORDERED.
Dated: December 15, 2025
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
98 See 28 U.S.C. § 2255(b).
99 28 U.S.C. § 2253(c)(2).
100 Saiz v. Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting Tennard v. Dretke, 542 U.S. 274, 282
(2004)).
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