USA v. MCBRIDE

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
EDDIE DEAN MCBRIDE 	PETITIONER
v. 	1:19-CR-10013-SOH
UNITED STATES 	RESPONDENT
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Petitioner, Eddie Dean McBride (“McBride”) filed a pro se 28 U.S.C. § 2255 Motion to
Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody on May 23, 2024. (ECF
No. 69). 	The Court appointed counsel and Assistant Federal Public Defender James Pierce
(“Attorney Pierce”) entered his appearance for McBride. (ECF Nos. 71, 72). The United States
was directed to respond on May 28, 2024. (ECF No. 71). Attorney Pierce filed a Supplement to
McBride’s pro se § 2255 Motion on July 26, 2024, (ECF No. 75), and the Government responded
on September 27, 2024. (ECF No. 78). The Motion was referred to the undersigned for Report
and Recommendation pursuant to Rule 72.1(VIII)(B)(1) of the Local Rules for the United States
District Court for the Eastern and Western Districts of Arkansas.0F
1 For the reasons set forth below,
the undersigned recommends dismissal of McBride’s § 2255 Motion to Vacate, Set Aside, or
Correct a Sentence.
1 Pursuant to General Order 2024-05, filed on December 3, 2024, the Western District’s practices
with respect to Section 2255 Motions was amended and General Order No. 22, dated October 19,
2010, was superseded. 	The above-captioned matter was referred to a U.S. Magistrate Judge for
report and recommendation on May 23, 2024, prior to enactment of General Order 2-24. Due to
the shortage of a district judge, increased workloads and judicial efficiency, the Magistrate Judge
did not seek reassignment but enters this Report and Recommendation pursuant to General Order
No. 22, in effect on the date of referral.
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I. 	Background
On October 4, 2019, McBride was named in a four-count Indictment filed in the United
States District Court for the Western District of Arkansas. (ECF No. 1). McBride appeared before
U.S. Magistrate Judge Barry Bryant for arraignment on October 28, 2019, with retained counsel,
Gregory Crain. (ECF No. 9). McBride pled not guilty, waiving the issue of detention but reserving
his rights. (ECF No. 9). McBride was remanded to the custody of the U.S. Marshal Service, and
a jury trial was set for December 10, 2019. (ECF No. 9). Continuances were granted on November
13, 2019, February 26, 2020, June 22, 2020, and August 3, 2020, to allow McBride reasonable
time to prepare for trial, exercising due diligence. (ECF Nos. 16, 21, 23, 24).
On August 6, 2020, Attorney James Bruce Bennett (“Attorney Bennett”) first appeared on
behalf of McBride, and Gregory Crain was permitted to withdraw on September 11, 2020. (ECF
Nos. 25, 27). 	The case was continued two more times on November 2, 2020, and January 26,
2021, and Chief U.S. District Judge Susan O. Hickey (“Judge Hickey”) reset the jury trial date to
August 9, 2021. 	(ECF Nos. 29, 30). 	Pursuant to the CARES Act of 2020, McBride waived
personal appearance before Judge Hickey on July 6, 2021, and Attorney Bennett requested a
change of plea hearing via video conference for August 9, 2021, which was granted. (ECF Nos.
30, 31). The change of plea hearing was reset for August 2, 2021. (ECF No. 33).
McBride appeared before Judge Hickey via video conference on August 2, 2021, and pled
guilty to Count Two of the Indictment which charged him with knowingly and intentionally
distributing methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C). (ECF No. 34). On September 28, 2021, McBride’s Initial Presentence
Report (“Initial PSR”) was filed, and defense counsel was granted two extensions of time to file
objections. (ECF Nos. 36, 39, 41). Attorney Bennett made seven (7) objections to the Initial PSR
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on November 4, 2021. (ECF No. 42). United States Probation Officer Specialist Amanda Jordan
(“Officer Jordan”) filed the Final Presentence Report (“Final PSR”) with Addendum addressing
all seven objections from McBride, resulting in no changes made to the Initial PSR. 	(ECF No.
43). The Sentencing Recommendation for McBride was filed on November 10, 2021, reflecting a
Total Offense Level of 29 and Criminal History Category VI with a Guideline Range of 151 to
188 months of incarceration followed by three years of supervised release. 	(ECF No. 44).
Attorney Bennett filed a Sentencing Memorandum on December 10, 2021, arguing McBride
should not receive the career offender enhancement under U.S.S.G. § 4B1.1, reasoning McBride’s
prior conviction of second-degree battery was not a crime of violence; the Memorandum also
requested that the Court grant a downward variance considering the 18 U.S.C. § 3553(a) factors.
(ECF No. 48).
McBride appeared before Judge Hickey on August 9, 2022, for sentencing and Judge
Hickey considered McBride’s objections. Judge Hickey first determined that McBride was not a
career offender, reducing his Criminal History Category from VI to V. 	(ECF No. 50). 	Judge
Hickey then found the revised guideline range of 140 to 175 months to be excessive, as not
reflecting the § 3553(a) criteria. 	The Final PSR was amended to decrease McBride’s Criminal
History Category, reflecting the Court’s finding that the career offender designation was
unwarranted. (ECF No. 51, Paragraph 97). A guideline range variance down to 120 to 150 months
was then determined sufficient for Defendant and not greater than necessary. (Id.). McBride was
sentenced to 120 months imprisonment in the Bureau of Prisons followed by three years of
supervised release with a special assessment fee of $100. (Id.). As agreed, the Government moved
to dismiss Counts One, Three, and Four of the Indictment, and the motion was granted. (ECF No.
66).
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McBride contacted the Court directly on August 16, 2022, requesting appointment of
counsel to file an appeal. (ECF No. 54). On behalf of McBride, Attorney Bennett timely filed a
Notice of Appeal of Final Judgment to the Eighth Circuit on August 19, 2022, and Attorney
Bennett was ordered to continue to represent McBride on August 29, 2022, after McBride’s motion
to proceed in forma pauperis was granted. (ECF Nos. 56, 64). Transcripts were transmitted to the
Eighth Circuit on September 13, 2022. (ECF Nos. 65, 66, 67). Attorney Bennett thereafter filed
McBride’s appellant brief pursuant to Anders v. California, 386 U.S. 738 (1967), advancing
McBride’s claim that the District Court abused its discretion by imposing a substantively
unreasonable sentence and requesting to be relieved as counsel and waiving oral argument. (ECF
No. 67).
McBride filed a Pro Se Supplemental Brief with the Eighth Circuit on November 28, 2022,
arguing that, in his opinion, meritorious issues were overlooked by Attorney Bennett in the Brief
for Appellant. (Supplemental Brief of Eddie McBride at 5233722, United States v. McBride, No.
22-2820 (8th Cir. Mar. 1, 2023)). Upon review of the case, the Eighth Circuit Court of Appeals
found that McBride’s Plea Agreement waived his right to appeal unless the District Court gave
him a sentence that exceeded the statutory maximum. 	(ECF No. 68-1). 	Here, McBride’s 120-
month sentence does not exceed the statutory maximum. (Id.). The Eighth Circuit also conducted
an independent review of the record under Penson v. Ohio, 488 U.S. 75 (1988), finding no non-
frivolous issues for appeal. 	(Id.). 	On March 1, 2023, the Eighth Circuit dismissed McBride’s
appeal, finding his plea agreement appeal waiver was valid and should be strictly enforced. (ECF
Nos. 68-1, 68-2). The Mandate was issued on March 30, 2023, and filed on April 21, 2023 (ECF
No. 68).
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As noted above, on May 23, 2024, McBride filed a 28 U.S.C. § 2255 Motion to Vacate,
Set Aside, or Correct a Sentence in United States District Court for the Western District of
Arkansas, asserting four claims for this Court’s review. (ECF No. 69).
II. 	Petition for Habeas Corpus
The writ of habeas corpus has been recognized as “the fundamental instrument for
safeguarding individual freedom against arbitrary and lawless state action” which is to be
administered with initiative and flexibility to identify and correct miscarriages of justice. Harris
v. Nelson, 394 U.S. 286, 291-92 (1969).
A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C § 2255(a). If, after reviewing the motion and the files and records of the case, the court
“finds . . . that the sentence imposed was not authorized by law or otherwise open to collateral
attack, or that there has been such a denial of constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack,” the court may grant the motion. 28 U.S.C § 2255(b).
The writ of habeas corpus provides a remedy for prisoners who challenge the “duration of their
physical confinement and are seeking immediate or a speedier release.” Otey v. Hopkins, 5 F.3d
1125, 1130 (8th Cir. 1993). 	The applicable statute of limitations is one year as set forth in 28
U.S.C § 2255(f).
McBride alleges four grounds for relief under § 2255 and seeks resentencing. (ECF No.
69). McBride first alleges that his 1998 cocaine sentence (reported in Paragraph 77 of the Final
PSR) should not have been assessed criminal history points because it falls outside of the fifteen-
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year look-back period commencing from the date of the instant offense. Next, McBride alleges
that his defense counsel, Attorney Bennett, provided ineffective assistance when failing to advise
McBride that conduct underlying dismissed counts could still be considered by the sentencing
judge as relevant conduct, a consideration which could increase the drug quantity for which he
was held accountable. 	Third, McBride alleges that Attorney Bennett was ineffective when he
failed to properly and meaningfully advance McBride’s objection to prior convictions (reported in
Paragraphs 85 and 90 of the Final PSR) being assessed criminal history points due to his allegation
that he lacked counsel. 	Finally, McBride alleges ineffective assistance of counsel because
Attorney Bennett failed to directly appeal the District Court’s overruling of objections to these
convictions (reported in Paragraphs 85 and 90 of the Revised Final PSR) to the Eighth Circuit
Court of Appeals.
III. 	Discussion
A. Timeliness
A one-year statute of limitations applies to § 2255 motions, and begins to run from the
latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed,
if the movant was prevented from making a motion by such governmental
action;
(3) the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
The Eighth Circuit issued a judgment dismissing McBride’s direct appeal on March 1,
2023. (ECF No. 68-1). McBride did not seek rehearing from the Eighth Circuit, nor did he petition
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the United States Supreme Court for writ of certiorari. Therefore, McBride’s conviction became
final on May 30, 2023, ninety days from the Eighth Circuit’s entry of judgment allowing McBride
to timely petition the United States Supreme Court. See Clay v. United States, 537 U.S. 522 (2003)
(“for the purpose of starting the clock on § 2255's one-year limitation period, we hold, a judgment
of conviction becomes final when the time expires for filing a petition for certiorari contesting the
appellate court's affirmation of the conviction.”).
McBride timely filed his pro se Motion under 28 U.S.C. § 2255 on May 23, 2024, within
the one-year period from the date his conviction became final. Thus, the timeliness of McBride’s
Motion is not at issue – his Motion is timely.
B. Criminal History Look-back Period
McBride argues that his 1998 Conspiracy to Deliver Cocaine conviction should not have
been included in the fifteen-year look-back period for criminal history calculation at sentencing.
He argues that inclusion of prior convictions for criminal history points turns on whether the
conduct cited “was indeed actually ‘relevant conduct’”. 	(ECF No. 69, Page 4). 	Specifically,
McBride argues he was released from the Arkansas Department of Corrections (“ADC”) on May
7, 2004, which is outside fifteen years from the commencement of conduct underlying Count Two
which occurred on or about June 18, 2019. McBride further argues that conduct underlying Count
One should not be considered relevant conduct as it was obtained in violation of the Fourth
Amendment and based upon insufficient evidence.
Addressing the issue, Judge Hickey concluded that McBride’s relevant conduct on June
18, 2018, (as alleged in Count One of the Indictment), was the correct commencement of the
instant offense date for the fifteen-year look-back period. 	(ECF No. 66, Page 21). 	During
McBride’s Sentencing Hearing, the Court detailed how relevant conduct is determined by the
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Sentencing Guidelines. (ECF No. 66, Pages 20-26). Further, the Government pointed out that the
parties had stipulated to McBride’s sale of methamphetamines on June 20, 2018, to be included as
relevant conduct for purposes of sentencing. (ECF No. 66, Pages 23-24; ECF No. 35, Paragraph
10). For reasons discussed below, McBride’s first claim concerning the criminal history look-back
period is both waived and without merit.
1. 	Appellate Waiver
It is firmly established that a defendant “may waive the right to seek collateral relief under
§ 2255.” Ackerland v. United States, 633 F.3d 698, 701 (8th Cir. 2011) (citing Chesney v. United
States, 367 F.3d 1055, 1058 (8th Cir. 2004); DeRoo v. United States, 223 F.3d 919, 923 (8th Cir.
2000)). Further, an appellate “waiver is enforceable when the claim raised falls within the scope
of the waiver, the defendant knowingly and voluntarily entered into the plea agreement, and
enforcement of the waiver would not result in a miscarriage of justice.” Id. (citing United States
v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003)). 	Finding that a waiver provision constitutes a
miscarriage of justice preventing its enforcement is an “extremely narrow exception.” Andis, 333
F.3d at 892. 	“Any sentence imposed within the statutory range is not subject to appeal.
Specifically, an allegation that the sentencing judge misapplied the Sentencing Guidelines or
abused his or her discretion is not subject to appeal in the face of a valid appeal waiver.” Id.
Here, McBride entered into a Plea Agreement with the Government, agreeing to plead
guilty to Count Two with the understanding the Government would move to dismiss Counts One,
Three, and Four after Judge Hickey pronounced the sentence. (ECF No. 35). An Appellate Waiver
in Paragraph 7 of the Plea Agreement provides:
7. In exchange for the United States’ concessions in this plea agreement, the
Defendant waives, to the full extent of law, any right to appeal or to collaterally
attack the conviction and sentence, including any restitution order, as follows:
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[ . . . ]
d. the Defendant waives the right to collaterally attack the conviction and sentence
pursuant to 28 U.S.C. § 2255, except for claims based on ineffective assistance of
counsel or prosecutorial misconduct; [ . . .].
(ECF No. 35, Paragraph 7).
McBride signed his Plea Agreement on June 30, 2021, acknowledging he had read and
reviewed “every part of it with defense counsel,” with full understanding of it “and not under the
influence of any anything that could impede the Defendant’s ability to fully understand [it]”. (ECF
No. 35, Paragraph 27). McBride confirmed with his signature that he did so “freely, voluntarily,
and without reservation and . . . not the result of threats or coercion.” (Id.). When asked by Judge
Hickey at his Change of Plea Hearing on August 2, 2021, to confirm he signed the agreement both
voluntarily and of his own free will without any coercion, McBride verbally affirmed. (ECF 65,
Page 17). The record also reflects that Judge Hickey reviewed Paragraph 7 in the Plea Agreement
with McBride during his Change of Plea Hearing, and McBride verbally confirmed that he
understood and that he agreed to “waive the right to collaterally attack the sentence and conviction
except under certain circumstances.” 	(ECF 65, Page 17). 	Here, McBride does not claim
ineffective assistance of counsel or prosecutorial misconduct when challenging assignment of the
three criminal history points, and thus, this claim falls explicitly within the scope of the Paragraph
7 Appellate Waiver.
Finally, there is no miscarriage of justice by strictly enforcing McBride’s Appellate Waiver
as his 120-month sentence was a downward variance from the calculated Sentencing Guideline
Range of 140 to 175 months. McBride’s allegation that Judge Hickey “misapplied the Sentencing
Guidelines or abused [] her discretion is not subject to appeal in the face of a valid waiver.” Andis,
333 F.3d at 892. In other words, this avenue similarly offers no relief to McBride.
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The Appellate Waiver is both valid and enforceable and was knowingly and voluntarily
approved by McBride. There is no evidence that applying the Waiver results in a miscarriage of
justice. 	Thus, McBride is precluded from collaterally attacking his sentence as this right was
waived.
Despite a recommendation for dismissal due to the Waiver, the undersigned believes it both
efficient and advisable to address the merits of McBride’s additional argument challenging the
three criminal history points assessed for his 1998 cocaine conviction.
2. 	Proper Assessment of Cocaine Conviction Criminal History Points
McBride contends it was erroneous for his 1998 cocaine conviction to be assessed three
criminal history points for two reasons: (1) the conviction falls outside of the fifteen-year look-
back period, or alternatively, (2) the instant offense date should not be June 18, 2018, as activity
underlying Count One is not relevant conduct.
On October 7, 1998, McBride was convicted of Conspiracy to Deliver Cocaine, a felony
offense, in the Circuit Court for Columbia County, Arkansas, (Docket No. CR-1998-15). (ECF
No. 51, Paragraph 77). McBride was sentenced to 180 months in ADC followed by a 60-month
Suspended Imposition of Sentence. (Id.) After being released from ADC in June 2002, McBride
twice returned to prison for violating his parole conditions – in November 2003 and December
2009. (Id.). McBride was released from ADC on January 11, 2011, and served the remainder of
his sentence on parole from which he was discharged in October 2018. (Id.).
The United States Sentencing Guidelines (“U.S.S.G.”) provide that “[a]ny prior sentence
of imprisonment exceeding one year and one month that was imposed within fifteen years of the
defendant’s commencement of the instant offense” should be included in calculating the
defendant’s criminal history score. U.S.S.G. § 4A1.2(e)(1). Additionally, “any prior sentence of
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imprisonment exceeding one year and one month, whenever imposed, that resulted in the
defendant being incarcerated during any part of such fifteen-year period” should also be counted.
(Id.). 	Where parole or probation was granted, but later revoked, the “date of last release from
incarceration on such sentence” determines whether a conviction falls within the prescribed look-
back period. U.S.S.G. § 4A1.2(k)(2)(A).
Here, McBride erroneously contends his release date for the cocaine conviction was May
7, 2004. Applying the U.S.S.G. provisions set forth above, McBride’s two subsequent returns to
prison due to parole revocations result in a “date of last release from incarceration” on the 1998
cocaine conviction as January 11, 2011. Conduct on either June 20, 2018, or June 20, 2019, fit
well within the fifteen-year period. 	McBride’s claim that his 1998 cocaine sentence should not
have counted in his criminal history is both waived and meritless.
C. 	Ineffective Assistance of Counsel
McBride contends that his former counsel, Attorney Bennett, provided ineffective
assistance of counsel through three acts or omissions that fell outside the range of professionally
competent assistance. 	(ECF No. 69). 	First, McBride alleges Attorney Bennett failed to inform
him that conduct underlying the three dismissed counts in the Indictment could still be considered
relevant conduct for sentencing purposes, and he alleges this failure exposed him to consequences
of a plea agreement where there was no material benefit in terms of duration of deprived liberty.
(ECF No. 69, Pages 1, 9-11). Second, McBride alleges Attorney Bennett failed to properly and
meaningfully advance the defendant's objection (“Objection 5”) to the Initial PSR at the
Sentencing Hearing; McBride describes these two allegedly uncounseled convictions resulted in
the assessment of two criminal history points. (ECF No. 75). It is alleged Attorney Bennett did
not provide readily accessible documents in support of Objection 5; objections for which McBride
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bore the burden of proof. (ECF No. 75, Page 6). Finally, McBride alleges Attorney Bennett failed
to directly appeal Judge Hickey’s denial of McBride’s Objection 5 to the Eighth Circuit, alleging
the issue was thus not preserved. (ECF No. 69, Page 3).
The Sixth Amendment establishes the right of criminal defendants to effective assistance
of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). “‘The purpose of the effective
assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation’
received by defendants, but to ‘simply ensure that criminal defendants receive a fair trial.’”
Springs v. Payne, 95 F.4th 596, 601 (8th Cir. 2024) (quoting Strickland, 466 U.S. at 689). The
Supreme Court has held that “an ineffective-assistance-of-counsel claim may be brought in a
collateral proceeding under §2255, whether or not the petitioner could have raised the claim on
direct appeal.” Massaro v. United States, 538 U.S. 500, 504 (2003).
“[T]o succeed in bringing his ineffective-assistance claim in the first instance, [a defendant]
must 	show 	both 	(1) 	that 	‘counsel's 	representation 	fell 	below 	an 	objective 	standard 	of
reasonableness’ in light of ‘prevailing professional norms’ and (2) ‘that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.’” 	Id. (quoting Strickland, 466 U.S. at 687-88). 	The burden of proof for the
constitutional violation is borne by the defendant. 	United States v. Cronic, 466 U.S. 648, 658
(1984); United States v. White, 341 F.3d 673, 678 (8th Cir. 2003). The Eighth Circuit has deemed
this “well-established law” explaining that “post-conviction relief will not be granted on a claim
of ineffective assistance of trial counsel unless the petitioner can show not only that counsel’s
performance was deficient, but also that such deficient performance prejudiced the defense.”
Saunders v. United States, 236 F.3d 950, 952 (8th Cir. 2001) (citing Strickland, 466 U.S. at 687).
The two prongs of the ineffective assistance of counsel test are often referred to as “deficient
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performance” and “prejudice”. See United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (8th
Cir. 2005).
“[A] court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”
Strickland, 466 U.S. at 697. 	The Supreme Court held that where an ineffective assistance of
counsel claim could be more easily disposed of “on the ground of lack of sufficient prejudice, . . .
that course should be followed.” Id.; Whitehead v. Dormire, 340 F.3d 532, 537 (8th Cir. 2003).
The Eighth Circuit advises that courts “do not . . . need to address the performance prong if the
petitioner does not affirmatively prove prejudice” as lack of prejudice can be dispositive for an
ineffective assistance of counsel claim. Pryor v. Norris, 103 F.3d 710, 713 (8th Cir. 1997).
To satisfy the prejudice prong, a defendant “must not simply show ‘that the errors had
some conceivable effect on the outcome of the proceeding’[; r]ather, he must show ‘that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.’” Pryor, 103 F.3d at 713 (emphasis added). In Lockhart v. Fretwell,
the United States Supreme Court explained the prejudice analysis by stating:
[A]n analysis focusing solely on mere outcome determination without attention to
whether the result of the proceeding was fundamentally unfair or unreliable, is
defective. To set aside a conviction or sentence solely because the outcome would
have been different but for counsel’s error may grant the defendant a windfall to
which the law does not entitle him.
506 U.S. 364, 369-70 (1993) (footnote omitted). The key prejudice analysis question is whether
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. Finally, in assessing prejudice to the defendant, “a court hearing an ineffectiveness
claim must consider the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at
695. “Some errors will have had a pervasive effect . . . altering the entire evidentiary picture, and
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some will have an isolated, trivial effect.” Id. at 695-96. If the “decision reached would reasonably
likely have been different absent [counsel’s] errors”, then the defendant has met the burden of
proof for prejudice. Id. at 696.
The deficient performance prong analysis requires the defendant to “show that his ‘counsel
made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment.’” 	United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting
Strickland, 466 U.S. at 687). Where counsel’s performance “f[alls] below an objective standard
of reasonableness”, it will be found deficient. Wiggins v. Smith, 539 U.S. 510, 522 (2003) (quoting
Strickland, 466 U.S. at 688).
In Strickland, the Supreme Court identified two distinct qualifiers for proving counsel’s
performance fell below the objective standard of reasonableness. See Strickland, 466 U.S. at 689-
90. 	First, where counsel thoroughly investigates “law and facts relevant to plausible options”,
their subsequent “strategic choices . . . are virtually unchallengeable.” 	Rice, 449 F.3d at 897
(quoting Strickland, 466 U.S. at 690). Second, the Court will “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional experience.” Id. (quoting
Strickland, 466 U.S. at 689). 	The law provides “wide latitude” to counsel in making “tactical
decisions” instead of exhaustively defining rigid obligations of counsel. Strickland, 466 U.S. at
689. 	To determine if counsel’s performance was “reasonable”, the Supreme Court held that
“[p]revailing norms of practice as reflected in American Bar Association standards and the like . .
. are guides.” Id. at 688.
In Strickland, the Supreme Court provided guidance on the lens through which an
ineffective assistance of counsel claim should be reviewed saying:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel’s assistance after conviction or
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adverse sentence . . . 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.
466 U.S. at 689. 	Further, the reviewing court should presume “under the circumstances, the
challenged action ‘might be considered sound [] strategy’”. Id. (quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955).
1. 	Relevant Conduct and Stipulated Drug Quantity Impact
McBride relies upon McMann v. Richardson, 397 U.S. 759, 771 (1970), where the Supreme
Court held that a defendant is “entitled to the assistance of competent counsel” during plea
negotiations. McBride posits that his counsel was required to fully and clearly advise him of the
consequences of pleading guilty regarding any plausible severity of punishment. Here, Attorney
Bennett acknowledged and affirmed his intent to confer with the Government regarding Count
One being predicated on tainted, flawed, and unlawfully obtained evidence allegedly in violation
of the Fourth Amendment. 	(ECF No. 69, Page 9). 	Counsel apparently did confer with the
Government who then provided evidence submission forms supporting Count One without photos
from the Magnolia Police Department. (Id.). The Plea Agreement to which McBride agreed and
acquiesced provided that the Government would move to dismiss Counts One, Three, and Four in
exchange for his guilty plea to Count Two of the Indictment. 	(ECF No. 35, Page 1). 	The Plea
Agreement further stipulated that the total drug quantity for which McBride would be held
accountable 	at 	sentencing 	was 	“at 	least 	50 	grams, 	but 	less 	than 	150 	grams, 	of 	actual
methamphetamine” which specifically “include[d] controlled purchases of methamphetamine
made from Defendant on June 20, 2018, . . . as described in Count 1”. (ECF No. 35, Paragraph
10). McBride now contends the Government’s agreement to dismiss Count One in exchange for
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McBride’s plea caused McBride to believe Count One could not be used against him in any
meaningful way at sentencing. (ECF No. 69, Page 10).
The record contradicts McBride. First, the Plea Agreement expressly advised and informed
McBride that relevant conduct and drug quantities underlying Count One could be considered by
the Court at sentencing:
RELEVANT CONDUCT CONSIDERED
17. At the sentencing hearing, the United States will be permitted to bring to the
Court’s attention, and the Court will be permitted to consider, all the relevant
information with respect to the Defendant’s background, character and conduct,
including the conduct that is the subject of this investigation for which he has not
been charged up to the date of the [Plea] Agreement and/or which is the basis for
any of the counts which will be dismissed pursuant to this [Plea] Agreement, as
provided by § 1B1.3 of the Sentencing Guidelines.
[. . .]
REPRESENTATIONS BY DEFENDANT
27. By signing this Plea Agreement, the Defendant acknowledges that:
a. 	The Defendant has read this Agreement (or has had this Agreement
read to him) and has carefully reviewed every part of it with defense
counsel.
b. 	The Defendant fully understands this Plea Agreement and is not
under the influence of anything that could impede the Defendant’s
ability to fully understand this Plea Agreement.
[. . .]
d. The Defendant is satisfied with the legal services provided by
Defense Counsel in connection with this Plea Agreement and
matters related to it.
(ECF No. 35, Paragraphs 17, 27) (emphasis added). 	McBride, having reviewed the Plea
Agreement and signed the Plea Agreement, knew that the drug quantities underlying Count One
could be considered by the Court at sentencing.
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Further, and importantly, the transcript of McBride’s Change of Plea Hearing on August
2, 2021, confirms Attorney Bennett had reviewed the details of the Plea Agreement with McBride,
and McBride agreed he had been informed and understood he would be held accountable for drug
quantities underlying any dismissed counts:
MR. WULFF, [Prosecutor]: [T]he parties have reached a stipulation on drug
quantity in this matter. 	In [paragraph 10] the United States and the defendant
agreed the most readily provable amount of narcotics for which the defendant
should be held accountable, includes controlled purchases of methamphetamine
made from the defendant on June 20, 2018, . . . as described in counts one and three,
which are to be dismissed under this plea agreement. And, that relevant conduct is
at least 50 grams, but less than 150 grams of actual methamphetamine. Pursuant to
the United States Sentencing Guidelines, this quantity of drugs equates to a gross
base offense level of 30.
[. . .]
THE COURT: Okay. Now, Mr. McBride, Mr. Wulff went over certain provisions
of the plea agreement. 	Do you have any questions or anything about any of the
other provisions - In other words, the provisions that he did not go over. Do you
have any questions about those?
[THE DEFENDANT]: No, Your Honor.
[THE COURT]: Okay. Now, Mr. McBride, did you read this plea agreement, and
did you and Mr. Bennett go over it together?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. And do you understand what this plea agreement is saying -
You understand it?
[THE DEFENDANT]: Yes, Your Honor.
(ECF No. 65, Pages 15-17).1F
2 Without question, the Change of Plea Hearing transcript expressly
confirms that McBride had been advised by Attorney Bennett (as well as AUSA Wulff and Judge
Hickey) regarding the Court’s ability to consider the conduct underlying dismissed Count One
when making McBride’s sentencing calculation.
Attorney Bennett made no error or omission in performance – the record affirmatively
proves McBride was informed about Count One’s relevant conduct being considered for purposes
2 Undersigned has corrected party labels in this portion of the transcript to accurately identify the parties.
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of calculating sentencing both in written and verbal forms. 	Attorney Bennett also addressed
McBride’s contention that the Government unlawfully obtained the evidence underlying Count
One; this resulted in the Government’s provision of additional evidence submissions to satisfy
McBride’s concerns.
Here, Attorney Bennett’s performance cannot be deemed deficient under Strickland as it
conforms 	to 	“prevailing 	norms 	of 	practice” 	that 	include 	investigating 	and 	addressing
considerations deemed important, followed by reviewing and discussing the details of the offered
Plea Agreement with McBride prior to McBride’s change of plea. Strickland, 466 U.S. at 688; see
also American Bar Association, ABA Standards for Criminal Justice: Pleas of Guilty, Standard
14- 3.2 (3d ed. 1999). In the absence of an attorney’s deficient performance, McBride’s ineffective
assistance of counsel claim necessarily fails.
Assuming, arguendo, that Attorney Bennett did fail in some capacity by not making clear
to McBride that conduct underlying Count One would be used to calculate his sentencing
Guideline Range, McBride was not prejudiced by this alleged deficiency. 	The record is clear:
Judge Hickey employed the 18 U.S.C. § 3553(a) statutory sentencing factors to determine
McBride’s sentence; she did not sentence McBride with the calculated Guideline Range using the
drug quantity as determinative. 	Moreover, Judge Hickey provided detailed reasoning for the
sentence which resulted in a twenty-month downward departure for McBride. (ECF No. 53, Page
3). 	Where McBride’s calculated Guideline Range was 140 to 175 months, McBride was only
sentenced to 120 months. 	Prejudice requires a finding that “the result of the proceeding was
fundamentally unfair or unreliable” to McBride and the record here unequivocally belies that
assertion. 	Lockhart, 506 U.S. at 369. 	Thus, McBride also fails to meet Strickland’s prejudice
prong required to establish ineffective assistance of counsel.
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2. 	Proper Objection to Criminal History Point Assessment
McBride asserts that Attorney Bennett failed to properly and meaningfully object to and
challenge two criminal history points included in the Initial PSR, the Final PSR and the Revised
Final PSR. (ECF Nos. 36, 43, 51). The two prior misdemeanor convictions at issue are found in
Paragraphs 85 and 90. (Id.). 	Paragraph 85 summarizes a conviction for (1) obstructing
governmental operations and (2) criminal mischief in the second degree in the Columbia County
District Court. (ECF No. 36, Paragraph 85). McBride was sentenced to pay fines and costs only,
and the Initial PSR indicates, “Attorney representation is unknown.” (ECF No. 36, Paragraph 85).
Paragraph 90 summarizes a misdemeanor conviction for possession of marijuana in the Columbia
County District Court. (ECF No. 36, Paragraph 85). The Initial PSR indicates only fines and costs
were assessed on McBride for this conviction, and “[a]ttorney representation is unknown.” (ECF
No. 36, Paragraph 90). McBride maintains that both prior convictions were uncounseled, but he
did not waive the right to counsel in either case; for this reason, McBride asserts neither of these
prior convictions should have been assessed any criminal history points. (ECF No. 42, Paragraph
5). Notably, a reduction of even one criminal history point would reduce his criminal history score
from 10 to 9, requiring a reduction of his Criminal History Category from V to IV. (ECF No. 75,
Page 1). Assuming all other calculations remain as outlined in the Revised Final PSR, the removal
of one criminal history point would result in a nineteen-to-twenty-four-month reduction in
calculated Guideline Range for McBride. (ECF No. 75, Page 6).
Attorney Bennett first filed Objection 5to the Initial PSR on November 4, 2021, alleging
both convictions reported in Paragraphs 85 and 90 were uncounseled. 	On November 10, 2021,
Officer Jordan filed a Final PSR with an Addendum addressing all seven of Attorney Bennett’s
objections to the Initial PSR. (ECF No. 43-1). Officer Jordan made no changes to criminal history
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points assigned to convictions in Paragraphs 85 and 90 responding, “[c]onvictions in which the
defendant either waives counsel, or is not represented by counsel, do not preclude a defendant
from receiving criminal history points.” 	(ECF No. 43-1, Page 1). 	On December 10, 2021,
Attorney Bennett filed a Sentencing Memorandum on behalf of McBride re-raising Objection 5
and stating where “[d]efendant is entitled to counsel when a charge may result in incarceration,
the Sixth Amendment Guarantee of Counsel is a fundamental and essential right . . . [t]herefore,
to have uncounseled convictions where counsel was not clearly waived are unconstitutionally
invalid convictions and should not be counted.” 	(ECF No. 48, Pages 3-4). 	At McBride’s
Sentencing Hearing on August 9, 2022, Judge Hickey addressed Objection 5, stating:
A defendant’s bare assertion that he was unrepresented is not enough to attack the
validity of a prior conviction. The burden is on the defendant to offer evidence that
the prior conviction was uncounseled. The defendant has failed to offer such proof.
Only when it appears more likely than not that the prior conviction was
uncounseled, should it not be counted toward his criminal history score. 	That is
not the case here. 	The points in question were appropriately assessed and will
remain the same. No change to the PSR is warranted. Objection 5 is denied.
(ECF No. 66, Page 31-32).
In 1972, the Supreme Court held that indigent defendants may not be deprived of their
liberty because of any criminal prosecution, whether felony or misdemeanor, in which he was
denied the assistance of counsel as required by Gideon v. Wainwright and made obligatory on the
states by the Fourteenth Amendment. 	Argersinger v. Hamlin, 407 U.S. 25, 27, 37-38 (1972);
Gideon v. Wainwright, 372 U.S. 335, 345 (1963). Uncounseled convictions where counsel was
not clearly waived are unconstitutionally invalid convictions and cannot be used to enhance
McBride’s sentence for the instant offense. See United States v. Tucker, 404 U.S. 443, 449 (1972).
In United States v. Stapleton, 316 F.3d 754, 756 (8th Cir. 2003), the Eighth Circuit held that
criminal history points may not be ascribed to uncounseled misdemeanor jail sentences. 	But,
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where uncounseled misdemeanor sentences do not involve jail time, those convictions can be used
to enhance a sentence for a subsequent offense. Nichols v. United States, 511 U.S. 738, 746-49
(1994); see also U.S.S.G. § 4A1.2, comment Background. 	A defendant “ha[s] the burden to
demonstrate by 	a preponderance of 	the evidence that his uncounseled convictions were
constitutionally invalid.” United States v. Reyes-Solano, 543 F.3d 474, 478 (8th Cir. 2008).
Here, the record does not include any specific actions Attorney Bennett took to further
investigate McBride’s “bare assertion” that both convictions in Paragraphs 85 and 90 were
uncounseled. (ECF No. 66, Page 31). Nor do records indicate that Attorney Bennett knew that
McBride’s misdemeanor conviction in Paragraph 90 resulted in a court order of thirty days in jail
with twenty-five days adjusted on the condition of no future drug charges in the following year.
(ECF No. 75, Page 4). 	During the Sentencing Hearing, Judge Hickey correctly attributed the
burden of proof for uncounseled convictions to McBride noting Attorney Bennett “failed to offer
such proof”. (ECF No. 66, Page 31).
After being appointed as counsel for purposes of McBride's § 2255 motion, Attorney Pierce
contacted the Columbia County District Court Clerk to request copies of the Docket Sheets for
both convictions represented in Paragraphs 85 and 90. (ECF No. 75, Page 4, Footnotes 2, 3). The
Docket Sheet for the conviction in Paragraph 85 confirms that no attorney was listed or entered an
appearance on either of the two misdemeanor charges, and McBride was only sentenced to pay
fines and costs. (ECF No. 75-1, Pages 1, 3). Applying the rule stated in Nichols and the explicit
Background Comment in U.S.S.G. § 4A1.2, McBride’s misdemeanor conviction in Paragraph 85
was uncounseled, but did not result in incarceration, and therefore, appropriately received one
criminal history point.
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The Docket Sheet for McBride’s conviction in Paragraph 90 confirms that it was
uncounseled and resulted in a sentence of thirty days of incarceration. (ECF No. 75-1, Page 5).
The Docket Sheet also indicates “Defendant Waives Right of Counsel and Signs Waiver
Agreement” when appearing in state court on April 12, 2018, to plead guilty. (ECF No. 75-1, Page
5). Attorney Pierce contacted the Columbia County District Court Clerk to request a copy of the
alleged waiver of counsel, but “no such waiver can be found or appears to have been filed in that
case and no separate transcript of the proceeding appears to be available to support such
contention.” 	(ECF No. 75, Page 4). 	Here, McBride argues that a simple phone call to the
Columbia County District Court by Attorney Bennett could have provided valuable evidence to
meet his burden of establishing that the Paragraph 90 conviction was, by a preponderance of the
evidence, unconstitutional. 	This, says McBride, would have bolstered his “bare assertion” and
provided Judge Hickey with an opportunity to weigh the evidence presented. Attorney Bennett,
however, offered no evidence even after the objection was denied by way of the Revised PSR and
prior to the Sentencing Hearing. (ECF No. 43-1, Page 4).
The Government contends the Docket Sheet for McBride’s conviction in Paragraph 90 only
proves that one criminal history point was accurately included for this conviction. 	The record
available here – a Docket Sheet from the Columbia County District Court – says the Government,
“bears sufficient indicia of reliability to support its probable accuracy,” arguing McBride signed a
waiver of counsel. See United States v. Stobaugh, 420 F.3d 796, 802-03 (8th Cir. 2005); U.S.S.G
§ 6A1.3(a). Where the Court Clerk was unable to locate the signed waiver of counsel or transcript
of the proceeding, the Government argues that absence of the “supporting file” is “not enough to
create a presumption of invalidity.” United States v. Roach, 164 F.3d 403, 414 (8th Cir. 1998).
Applying the Eighth Circuit’s preponderance of the evidence standard, McBride’s contention of
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an uncounseled conviction without waiver likely would have failed even if Attorney Bennett
provided the Court with Docket Sheets procured by instant counsel.
As noted above, to establish ineffective assistance of counsel, a defendant must prove that
(1) counsel’s performance was deficient, and (2) that the defendant was prejudiced as a result.
Saunders, 236 F.3d at 952. Attorney Bennett’s failure to procure and advance Objection 5 with
the relevant Docket Sheets is evaluated under the “objective standard of reasonableness”, afforded
a “strong presumption that [it] falls within the wide range of reasonable professional experience”,
and “virtually unchallengeable” if it is a strategic choice made after thorough investigation.
Strickland, 466 U.S. at 688; Rice, 449 F.3d at 897. ABA Standard 4-4.1 provides guidance on
defense counsel’s duty to promptly investigate “appropriate avenues that reasonably might lead to
information relevant to . . . potential [] penalties.” American Bar Association, Criminal Justice
Standards for the Defense Function (4th ed. 2017). McBride consistently maintained that these
two convictions were uncounseled, and Attorney Bennett filed an Objection to the Initial PSR and
followed up with a Sentencing Memorandum challenging the validity of criminal history points
assessed. There was a seven-month gap between the filing of the Sentencing Memorandum and
McBride’s Sentencing Hearing which provided Attorney Bennett ample opportunity to further
investigate McBride’s contention, but the record reflects he looked no further. Attorney Bennett
was aware of the impact additional criminal history points have on the Sentencing Guidelines
which instructs potential penalties. Without evidence of investigation by Attorney Bennett, it is
not reasonable to categorize this omission as a “virtually unchallengeable strategic choice”.
Nevertheless, Strickland instructs reviewing courts to apply a “heavy measure of deference
to counsel’s judgments” – including any decision by counsel not to investigate further. Id., at 691.
An attorney’s “scope of the duty [to investigate], however, depends on such facts as the strength
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of the government's case and the likelihood that pursuing certain leads may prove more harmful
than helpful.” Strickland, 466 U.S. at 680-81. Applying heavy deference to Attorney Bennett’s
choice not to obtain and submit the docket sheets when the PSR noted “[a]ttorney representation
is unknown,” it is reasonable to conclude that Attorney Bennett did not want to further risk denial
of Objection 5 should the docket sheets have confirmed McBride’s waiver of counsel and reflected
jail time. (ECF No. 51, Paragraphs 85, 90; ECF No. 75-1, Pages 3, 5).
Assuming arguendo that Attorney Bennett’s performance fell below the standard of
reasonableness, McBride still must prove he was prejudiced by this performance. 	To establish
prejudice, McBride must show a reasonable probability that the outcome of the proceeding would
have been different absent counsel’s error; it is not enough to show the error had some
“conceivable effect” on the outcome. Pryor, 103 F.3d at 713.
Here, the outcome of McBride’s sentencing resulted in large part from a downward
variance based on consideration of the § 3553(a) factors. While McBride’s calculated Guideline
Range was 140 to 175 months, Judge Hickey found the calculated range to be “excessive” and
sentenced McBride to 120 months of incarceration. 	(ECF No. 53). 	The sentence imposed was
twenty-months below the low end of his calculated Guideline Range; this downward variance is
roughly equivalent to the nineteen-to-twenty-four-month reduction in McBride’s Guideline Range
had one criminal history point been removed from the Criminal History Category calculations in
the Revised Final PSR. Thus, while reduction of one criminal history point could have affected
McBride’s sentence in the absence of the variance, McBride’s sentence, as imposed, was not
“fundamentally unfair or unreliable” because of any alleged deficient performance on the part of
Attorney Bennett. Lockhart, 506 U.S. at 369. Therefore, McBride fails to establish prejudice, and
for this reason, his argument fails.
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3. 	Failure to Directly Appeal Denial of Objection 5 to Eighth Circuit
McBride claims that Attorney Bennett’s failure to directly appeal Judge Hickey’s
overruling of Objection 5 to the Eighth Circuit Court of Appeals constitutes ineffective assistance.
As recounted above, Attorney Bennett did file Objection 5 to the Initial PSR on November 4, 2021,
alleging both convictions reported in Paragraphs 85 and 90 were uncounseled. 	(ECF No. 42).
After Officer Jordan declined to amend McBride’s criminal history points for the Paragraphs 85
and 90 convictions, Attorney Bennett filed a Sentencing Memorandum on December 10, 2021,
once again raising Objection 5. (ECF No. 48, Pages 3-4). Judge Hickey overruled Objection 5 at
sentencing for lack of proof beyond a “bare assertion” that the two convictions at issue were
uncounseled. (ECF No. 66, Page 31).
McBride timely appealed his sentence to the Eighth Circuit where Attorney Bennett was
directed to continue his representation of McBride. 	(ECF No. 67). 	Attorney Bennett filed an
Anders Brief for Appellant, preserving McBride’s assertion that Judge Hickey had abused her
discretion by imposing a substantively unreasonable sentence and requesting to be relieved as
counsel. 	(Id.). 	McBride then filed a Pro Se Supplemental Brief with the Eighth Circuit on
November 28, 2022, arguing that meritorious issues were overlooked by Attorney Bennett in the
Anders Brief. (See Supplemental Brief of Eddie McBride at 5233722, United States v. McBride,
No. 22-2820 (8th Cir. Mar. 1, 2023)). In his Pro Se Supplemental Brief, McBride did not assert
that Judge Hickey’s denial of Objection 5 was one of those meritorious yet overlooked issues.
The appellate court conducted an independent review of the record under Penson v. Ohio, 488 U.S.
75 (1988) and found no non-frivolous issues for appeal. 	(ECF No. 68). 	The Eighth Circuit
dismissed McBride’s appeal, finding his Plea Agreement Appeal Waiver valid and strictly
enforcing it in a Judgment filed March 1, 2023. (ECF No. 68-1, Pages 3-4).
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Ineffective assistance of counsel on appeal claims are evaluated under the two-part
Strickland test. 	Id. at 687-88. 	Viewing counsel’s challenged conduct at the time it occurred, a
“court must then determine whether, in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.” Id. at 690. Courts
“assume that appellate counsel’s failure to raise a claim was an exercise of ‘sound appellate
strategy’” in the absence of contrary evidence. 	Roe v. Delo, 160 F.3d 416, 418 (8th Cir. 1998)
(quoting Sidebottom v. Delo, 46 F.3d 744, 759 (8th Cir. 1995)). 	To establish prejudice in an
ineffective assistance of appellate counsel claim, petitioners must prove that “the result of the
proceeding would have been different” if appellate counsel would have raised the issue. Becht v.
United States, 403 F.3d 541, 546 (8th Cir. 2005).
Here, Attorney Bennett raised Objection 5 on two occasions prior to the Sentencing
Hearing with Judge Hickey, and preserved review of McBride’s sentence in his Anders brief by
alleging abuse of discretion by imposition of a substantively unreasonable sentence. 	While
Attorney Bennett stated he could not ascertain any issues meriting the Eighth Circuit’s review on
appeal, he ensured McBride would receive a review of his 120-month sentence. As noted, Judge
Hickey relied on consideration of the § 3553(a) factors to determine McBride’s sentence rather
than relying upon the calculated Guideline Range. In so doing, the criminal history points assigned
to the Paragraphs 85 and 90 convictions were only advisory to the Court in determining McBride’s
sentence. 	Attorney Bennett's choice to challenge the substantive reasonableness of McBride’s
sentence was the most prudent strategy considering the statutory criteria under which McBride
was sentenced. 	Further, even McBride himself failed to raise Objection 5 in his Pro Se
Supplemental Brief. 	As the Government points out, this omission tends to persuade the
undersigned that even McBride did not view Judge Hickey’s overruling of Objection 5 as one
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meritorious for appellate review. McBride thus fails to meet the heavy burden of showing Attorney
Bennett “made errors so serious that [he] was not functioning as the ‘counsel’ [. . .] guaranteed by
the Sixth Amendment.” Rice, 449 F.3d at 897 (quoting Strickland, 466 U.S. at 687).
For similar reasons, McBride was not prejudiced by Attorney Bennett’s failure to raise
Objection 5 on appeal. 	As noted, the absence of deficient performance precludes a finding of
prejudice from the alleged error. There was no resulting harm to McBride as his sentence reflected
Judge Hickey’s twenty-month downward variance from the applicable Guideline Range which
takes the place of any nineteen-to-twenty-four-month decrease resulting from the removal of one
criminal history point. 	Finally, it is unreasonable to conclude McBride would have received a
different result from the Eighth Circuit had Objection 5 been included in his direct appeal. The
Eighth Circuit dismissed McBride’s appeal due to strict enforcement of his appellate waiver; the
appellate court found McBride’s claims fell within the scope of the waiver, that McBride
knowingly and voluntarily entered into the Plea Agreement which included the waiver, and that
there had not been a resulting miscarriage of justice. The Eighth Circuit also reviewed the entire
record under Penson v. Ohio, 488 U.S. 75 (1988), finding “no non-frivolous issues for appeal
falling outside of the scope of the appeal waiver.” (ECF No. 68-1, Page 2). Without a showing of
reasonable probability for a different result, McBride fails to establish prejudice required under
Strickland.
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D. 	Evidentiary Hearing
Because there is no factual dispute and because McBride’s legal arguments are contrary to
well-established law – particularly Strickland v. Washington – an evidentiary hearing is both
unwarranted and unnecessary.
E. 	Conclusion
For the reasons stated above, it is recommended that McBride’s Motion pursuant to 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody (ECF
No. 69) should be DENIED.
F. 	Certificate of Appealability
It is recommended that a Certificate of Appealability be DENIED.
The parties have fourteen days from receipt of the Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court.
Status of Referral: 	The referral terminates upon the filing of this Report and
Recommendation.
RECOMMENDED this 29th day of April 2025.
_________________________________________
CHRISTY COMSTOCK
UNITED STATES MAGISTRATE JUDGE
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