Dueker v. USA

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JEFFREY DEWAIN DUEKER,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civ. Case No. 4:25-cv-00146-RK
Crim. Case No. 4:07-cr-00117-RK-1
ORDER
Before the Court is Movant’s amended pro se motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. (Doc. 6.) After careful consideration and review, and for
the reasons explained below, the Court ORDERS that: (1) Movant’s amended motion to vacate,
set aside, or correct sentence is DENIED; (2) a certificate of appealability is DENIED; and (3) this
case is DISMISSED.
Background and Procedural Posture
Movant Jeffrey Dewain Dueker pleaded guilty to a total of three counts in two criminal
cases on December 17, 2007. (Crim. Docs. 36, 37.)1 Specifically, he pleaded guilty before the
Honorable Howard F. Sachs to two counts of receiving child pornography, as charged in Case No.
4:07-cr-00117, and one count of being a felon in possession of ammunition, as charged in Case
No. 4:07-cr-00118. (See Crim. Doc. 37.) On April 16, 2008, Judge Sachs sentenced Movant to a
total term of 252 months’ imprisonment—240 months each as to the two counts of receiving child
pornography, to be served concurrently, and 12 months as to the one count of being a felon in
possession of ammunition, to be served consecutively. (Crim. Doc. 42.) Judge Sachs additionally
imposed a 10-year term of supervised release. (Id.) On direct appeal, the Eighth Circuit enforced
the appeal waiver in the plea agreement and dismissed the appeal. 	(See Crim. Docs. 49, 49-1.)
United States v. Dueker, 357 F. App’x 726 (8th Cir. 2009). 	On February 8, 2024, Movant’s
1 “Crim. Doc.” refers to the underlying criminal case, Case No. 4:07-cr-00117-RK-1; “Doc.” refers
to the civil habeas case, Case No. 4:25-cv-00146-RK.
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sentence was reduced to time served pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 821.
(Crim. Doc. 54.)
On September 10, 2024, following several supervised release violation reports in both
criminal cases and ultimately Movant’s arrest and initial appearance/preliminary revocation
hearing, the Court2 held a final revocation hearing. 	(Crim. Doc. 70.) 	Movant stipulated to the
underlying conduct as alleged in the violation reports; the Court revoked Movant’s supervised
release and imposed 10-month revocation sentences on each of the three supervised release
violations, to be served concurrently. 	(Crim. Doc. 71.) 	The Court additionally imposed upon
revocation a lifetime term of supervision in the child pornography criminal case but did not order
any additional supervision to follow the 10-month revocation sentence in the felon-in-possession
criminal case. (Id.).
On February 14, 2025, Movant filed an initial verified pro se § 2255 motion, followed by
an amended verified pro se § 2255 motion. (Crim. Doc. 73; Docs. 6, 7.) In his amended § 2255
pro se motion, Movant raises one claim of ineffective assistance of counsel: that revocation counsel
“failed to file [a] Notice of Appeal when instructed to do so by his client.” (Doc. 6 at 4.) 	The
Government filed suggestions in opposition, including an affidavit by revocation counsel. (Docs.
10, 10-1.) The Government agreed that because of the nature of Movant’s ineffective-assistance-
of-counsel claim, an evidentiary hearing and appointment of post-conviction counsel was
necessary and appropriate in this case. (Doc. 10 at 1, 5.) Accordingly, the Court appointed counsel
under the Criminal Justice Act, (Doc. 13), and held an evidentiary hearing, (see Doc. 18).3
Further facts are set forth as necessary.
Discussion
Under the familiar Strickland4 standard for ineffective-assistance-of-counsel claims, a
movant claiming ineffective assistance of counsel must satisfy two prongs: 	(1) that “counsel’s
performance fell below an objective standard of reasonableness,” and (2) that the movant “suffered
prejudice as a result.” 	Witthar v. United States, 793 F.3d 920, 922 (8th Cir. 2015) (internal
2 Movant’s criminal case was re-assigned to the Court on July 16, 2024. (Crim. Doc. 59.)
3 In requesting an extension of time to the original hearing date, CJA counsel indicated that a second
amended or supplemental § 2255 motion was under consideration. (Doc. 15 at ¶ 4.) No second amended
or supplemental § 2255 motion was ultimately sought by Movant.
4 Strickland v. Washington, 466 U.S. 668 (1984)
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quotation marks omitted). 	The Eighth Circuit has held that “[a]n attorney’s failure to file a
requested appeal automatically satisfies the deficient-performance prong.” 	Id. 	In other words,
when an attorney fails to initiate an appeal when requested by a criminal defendant, “[n]o showing
of prejudice is required,” but rather “[Strickland] prejudice is presumed.” 	Id. at 922-23. 	To
prevail, Movant “must show that [he] instructed . . . counsel to file an appeal,” and that he did so
in a manner indicating to counsel his “manifest” desire to appeal. Barger v. United States, 204
F.3d 1180, 1182 (8th Cir. 2000); see Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000).
In weighing the evidence, the Court considers (1) Movant’s verified amended pro se § 2255
motion, (2) revocation counsel’s affidavit, and (3) the testimony of both Movant and revocation
counsel at the evidentiary hearing. The Court makes the following findings of fact and conclusions
of law.
Revocation counsel credibly testified, consistent with his affidavit, that while Movant’s
mother told him in a phone call shortly after the final revocation hearing that Movant wanted to
appeal, Movant did not expressly request that counsel file a notice of appeal on his behalf.
Revocation counsel credibly testified that in a phone call with Movant a couple of days later
counsel had spoken with Movant’s mother, they did discuss the possibility for an appeal.
Revocation counsel testified that he gave Movant his advice, based on both legal and practical
rationale, against pursuing an appeal (largely focusing on the lack of a legal basis to appeal the
revocation sentence and the anticipated timeline to pursue an appeal given the relatively short 10-
month revocation sentence imposed). Revocation counsel credibly testified that after discussing
the issue with Movant he was left with the impression that (1) Movant understood counsel’s
reasoned advice why an appeal would not be fruitful, and (2) Movant was “in agreement” with
that advice. 	Revocation counsel persuasively testified that there would have been no reason
(whether financial or because of workload) not to file an appeal had one been requested and that
had Movant told counsel to “appeal anyway,” counsel would have done so.
Movant’s testimony is consistent with revocation counsel’s testimony in some respects.
For example, Movant similarly testified that he spoke with revocation counsel on the phone a
couple of days after the final revocation hearing and after Movant’s mother had spoken with
counsel. Movant also testified that they discussed the potential for an appeal; Movant testified that
“the very first thing” he said was that he (Movant) wanted an appeal. Movant then testified, also
consistent with revocation counsel’s testimony, that counsel advised against pursuing an appeal.
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Movant testified that he ended this phone call after the discussion devolved into an argument
focused on “what happened at the hearing and whether or not we should have fought it” (i.e.,
whether he should have stipulated to the supervised release violations set out in the violation
reports). Additionally, like revocation counsel, Movant testified that he again raised the potential
for an appeal in a second phone call with counsel a few days after the first phone call.
The Court finds other aspects of Movant’s testimony not credible, however. For example,
Movant testified that during the second phone call after he and revocation counsel began arguing
about whether an appeal would be fruitful, revocation counsel hung up on Movant. Movant also
testified that revocation counsel “just flat out refused to file an appeal” on Movant’s behalf. The
Court does not find this testimony credible. 	Movant agreed at the evidentiary hearing with the
characterization of his demeanor as brusque and “hard.” The Court believes Movant’s demeanor
played a significant role in the two phone conversations with revocation counsel that, like the
evidentiary hearing in this case, tended to focus not on Movant’s request that revocation counsel
file an appeal but instead on rehashing revocation counsel’s prior advice that Movant stipulate to
the facts underlying the alleged supervised release violations. To the extent there was discussion
about an appeal, the Court finds, as both revocation counsel and Movant testified, that that
discussion involved revocation counsel giving Movant his professional advice not to pursue an
appeal.
The Court is not persuaded that Movant has shown through any credible evidence that,
after considering the reasoned advice of counsel, Movant unambiguously expressed that he
nonetheless wanted and directed revocation counsel to file a notice of appeal. In short, the Court
does not find credible Movant’s assertion that revocation counsel—an experienced and extremely
capable Assistant Public Defender—simply refused to file a notice of appeal contrary to Movant’s
manifest and express instruction to do so.5 To the contrary, the Court does find credible revocation
counsel’s testimony that had Movant expressed his desire to appeal even though counsel advised
against pursuing an appeal, that counsel would have done so. Movant has failed to establish that
revocation counsel’s performance in failing to file a notice of appeal as to the revocation sentence
5 The Court notes that the only ineffective-assistance-of-counsel claim Movant asserts in his
amended pro se § 2255 motion is that revocation counsel failed to file a notice of appeal despite Movant’s
instruction to do so.
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fell “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Accordingly,
Movant’s sole ground for relief under § 2255 is DENIED.
Certificate of Appealability
Under 28 U.S.C. § 2253(c), the Court may issue a certificate of appealability only “where
a [movant] has made a substantial showing of the denial of a constitutional right.” To satisfy this
standard, a movant must show that a “reasonable jurist” would find the district court ruling on the
constitutional claim(s) “debatable or wrong.” 	Tennard v. Dretke, 542 U.S. 274, 276 (2004).
Because Movant has not met this standard, a certificate of appealability is DENIED.
Conclusion
Accordingly, after careful consideration and for the reasons set out above, the Court
ORDERS that (1) Movant’s amended motion to vacate, set aside, or correct sentence, (Doc. 6), is
DENIED; (2) a certificate of appealability is DENIED; and (3) this case is DISMISSED.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: February 23, 2026
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