USA v. Walton

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
AARON WALTON PETITIONER
v. 5:19-CR-50069-TLB
UNITED STATES RESPONDENT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Aaron Walton (“Petitioner”) filed his 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (“Motion”) on September 19, 2022. (ECF No.
50). The Court directed the United States (hereinafter “Government”) to respond, and it did so on
October 19, 2022, (ECF Nos. 52, 53), with Petitioner filing a supplemental pleading on December
10, 2022. (ECF No. 54). The matter was referred by United States District Judge Timothy L.
Brooks 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, and is now ripe for consideration.
I. STATEMENT OF FACTS
A. Factual and Procedural Background
During April 2018, federal investigators facilitated three controlled buys during an
investigation of Petitioner wherein a confidential source purchased from Petitioner approximately
sixty-seven grams of methamphetamine. (ECF No. 27 ⁋⁋ 8-23). Petitioner was first arrested on
state charges but was later arrested on July 25, 2019, related to a federal indictment charging
Petitioner with “knowing and intentionally” distributing more than five grams of actual
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii). (ECF Nos. 1, 4, 14).
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Petitioner ultimately pled guilty to one count of knowingly and intentionally distributing more than
five grams of actual methamphetamine and was exposed to a mandatory minimum term of five (5)
years imprisonment with a statutory maximum sentence of forty (40) years. 21 U.S.C. §
841(b)(1)(B)(viii). (ECF Nos. 17, 27).
In determining the appropriate sentence, Judge Brooks calculated Petitioner’s guideline
range (188-235 months), which took into consideration the total offense level of 31 and Petitioner’s
criminal history score of VI (increased to VI from V because of his status as a “career offender”
under the Federal Sentencing Guidelines (“Guidelines” or “U.S.S.G.”)). (ECF Nos. 31, 32, and
27 ⁋ ⁋ 43, 93-96); see also U.S.S.G. § 4B1.1(a) (defendant is sentenced as a career offender if he
“has at least two prior felony convictions of . . . a controlled substance offense”). Overruling
Petitioner’s career offender status objections at the time of sentencing, Judge Brooks determined
that Petitioner’s qualifying predicate “prior felony convictions of a controlled substance offense”
were (i) a conviction for Distribution or Possession with Intent to Distribute Marijuana, in violation
of Kan. Stat. Ann. § 21-5705; (ii) a conviction for Possession of a Schedule II Controlled Substance
with Purpose to Deliver, in violation of Ark. Code Ann. § 5-64-436; and (iii) a conviction for
Possession of a Schedule VI Controlled Substance with Purpose to Deliver, in violation of Ark.
Code Ann. § 5-64-424. (ECF No. 27 ⁋⁋ 83, 88). Judge Brooks then granted a sentencing departure,
noted the new total offense level of 29 and revised guideline range of 151-188 months, and
sentenced Petitioner to the low end of that range – 151 months imprisonment, four years supervised
released, a $100 special assessment, and a $1,900 fine. (ECF Nos. 31, 32).
Petitioner appealed his sentence to the Court of Appeals for the Eighth Circuit, arguing that
he did not qualify as a career offender because he did not have at least two prior felony convictions
that met U.S.S.G. § 4B1.2(b)’s definition of a controlled substance offense. See Brief for Appellant
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at 19-24. Petitioner further argued that the U.S. Sentencing Commission exceeded its authority by
expanding the definition of “controlled substance offense” in the commentary to include inchoate
offenses such as aiding and abetting, conspiring, and attempting to commit such offenses. See id.
at 24-27; see also U.S.S.G. § 4B1.2, Application Note 1. The Court of Appeals rejected these
arguments and affirmed Petitioner’s sentence. See United States v. Walton, 840 Fed.Appx. 46 (8th
Cir. 2021).
B. Petitioner’s Section 2255 Motion
Petitioner filed his Motion on September 19, 2022, alleging his sentence “was imposed in
violation of the Constitution’s guarantee of Sixth Amendment [right to effective counsel]” and
seeking resentencing without the career offender enhancement. (ECF No. 50, p.1). Petitioner
advances three arguments.
Petitioner first contends his counsel’s performance was deficient when counsel chose to
characterize Petitioner’s Arkansas and Kansas convictions as “attempt” crimes instead of “offers
for sale.” (ECF No. 50, pp. 3-5, 6). Petitioner reasons that the phrase “offer to sale” is broader
than “attempt,” and should not fall within the purview of the Guidelines’ definition of “controlled
substance offense.”
Petitioner then alleges that counsel’s performance during the sentencing hearing was
deficient when counsel failed, in Petitioner’s opinion, to “correctly” argue that Petitioner possessed
the requisite intent to have “purpose to deliver” under his Arkansas convictions. (ECF No. 50, pp.
6-8). Petitioner says that counsel should have so argued because there are multiple ways to prove
“purpose to deliver;” Petitioner says he did not actually have this purpose or intent; and thus,
should have been convicted of mere possession. Id. Petitioner also relies on United States v.
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Maldonado to distinguish the state laws under which he was convicted. United States v.
Maldonado, 864 F.3d 893 (8th Cir. 2017).
Petitioner next argues that counsel’s performance was deficient when counsel challenged
the U.S. Sentencing Commission’s authority to define “controlled substance offenses” under
section 4B1.2. (ECF No. 50, p. 5). Petitioner says that because the Eighth Circuit has foreclosed
this argument on numerous occasions, counsel should have known not to argue it in Petitioner’s
case. Id.
Finally, Petitioner alleges he was prejudiced by counsel’s deficient performance because
he should have received a sentence substantially lower than 151 months. (ECF No. 50, p. 9).
Petitioner relatedly argues he was prejudiced by counsel’s failure to preserve an “offer for
sale/attempt” argument for appeal by not raising the argument with Judge Brooks at the time of
sentencing. (ECF No. 50, pp. 9, 11).
In response, the Government argues that Petitioner cannot relitigate his “offer for
sale/attempt” claims in a Section 2255 motion because they have already been raised, argued, and
decided adversely against him in the appellate courts. (ECF No. 53, pp. 10-14, 16-17). The
Government points to multiple occasions in the record where counsel argued that Petitioner’s
Arkansas and Kansas convictions were inchoate and should not be counted toward a career
offender U.S.S.G. enhancement, citing, for example, counsel’s objection to Petitioner being
sentenced as a career offender during the sentencing hearing, on appeal to the Eighth Circuit and
in his writ of certiorari to the U.S. Supreme Court. (ECF No. 53, pp. 10-14, 16-17; ECF No. 24,
p. 1).
The Government contends that Petitioner’s second argument – that his Arkansas
convictions should not be considered for the career offender enhancement because there are
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multiple ways to be found guilty under Arkansas law without manufacturing, importing, exporting,
distributing, or dispending a controlled substance – should be rejected as Petitioner does not
explain how “delivery” is broader than the Guidelines’ definition of “controlled substances.” (ECF
No. 53, p. 17).
The Government rejects Petitioner’s argument that his counsel was ineffective for arguing
against Eighth Circuit precedent, stating the claim must fail because Petitioner cannot demonstrate
any adverse effect from counsel’s argument. (ECF No. 53, pp. 15-16). Finally, the Government
argues that an evidentiary hearing is not required because Petitioner’s claims herein are
contradicted by the record, have already been litigated, and/or are meritless. (ECF No. 53, pp. 18-
19). The Government says a certificate of appealability should not issue because Petitioner has
not made a substantial showing of a denial of a constitutional right. (ECF No. 53, p. 19).
II. DISCUSSION
A. Procedural Hurdles
1. Petitioner timely filed his Section 2255 Motion.
Section 2255 has a one-year limitation period that begins running, in relevant part, on the
date judgment of conviction becomes final. See 28 U.S.C. § 2255(f)(1). One way a judgment
becomes final is when the U.S. Supreme Court denies a petitioner’s writ of certiorari. See Clay v.
United States, 537 U.S. 522, 527 (2003). Here, Petitioner’s sentence became final on October 4,
2021, when the U.S. Supreme Court denied his petition for writ of certiorari. (ECF No. 45).
Petitioner filed his Motion on September 19, 2022 (ECF No. 50) and thus, Petitioner’s filing was
timely.
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2. Petitioner’s Section 2255 Motion is barred because his sentence does
not exceed the statutory maximum.
Petitioner is procedurally barred from collaterally attacking his sentence because the court
sentenced him within the statutory maximum. “A sentencing court must correctly calculate the
advisory Guidelines range.” United States v. Perkins, 52 F.4th 742, 743 (8th Cir. 2022). But a
claim asserting a misapplication of the career offender enhancement is not cognizable under
Section 2255 when the sentence is within the statutory maximum. See Sun Bear v. United States,
644 F.3d 700, 704-06 (8th Cir. 2011) (finding no miscarriage of justice when petitioner’s sentence
was within the statutory maximum, within the initial Guidelines range, and the same 360-month
sentence could be reimposed were petitioner’s Section 2255 relief granted); see also United States
v. Crandall, 25 F.4th 582, 586 (8th Cir. 2022) (“. . . a challenge to [the] application of the
sentencing guidelines is not cognizable under [Section] 2255”).
Considering all of Petitioner’s arguments for ineffective counsel together, the only
prejudice Petitioner potentially suffered is receiving a higher sentence as a career offender than he
would have without the enhancement. Stated differently, all of Petitioner’s arguments challenge
the application of the Guidelines when determining his sentence. Sun Bear forecloses these
arguments, however, because Petitioner’s 151-month sentence falls below the forty-year
maximum sentenced permitted by 28 U.S.C. § 841(b)(1)(B)(viii). Consequently, Petitioner’s
sentence still would have been “well within the statutory maximum” prescribed for possession of
methamphetamine with intent to distribute even had Judge Brooks sentenced him beyond the upper
end of the revised Guidelines’ 188-month recommendation. Sun Bear, 644 F.3d at 705; see also
21 U.S.C. § 841(b)(1)(B)(viii). All of Petitioner’s claims, therefore, are incognizable under
Section 2255.
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3. Petitioner’s career offender enhancement argument was raised and
decided against Petitioner on direct appeal.
Petitioner is also procedurally barred from raising certain of his arguments in this Section
2255 Motion because these arguments have been raised and decided against him on direct appeal.
A petitioner “cannot raise the same issues in a [Section] 2255 petition that have been decided on
direct appeal or in a new trial motion.” United States v. Kraemer, 810 F.2d 173,177 (8th Cir.
1987); see, e.g., Jackson v. United States, 108 F.3d 1382 (8th Cir. 1997) (affirming the denial of
defendant’s Section 2255 motion because, inter alia, defendant resurrected a challenge to the
district court’s drug-quantity finding previously raised and denied on direct appeal).
The record is undisputed that counsel for Petitioner objected to the Presentence
Investigation Report and argued both at the sentencing hearing and on direct appeal to the Eighth
Circuit that all three of Petitioner’s convictions – pursuant to Ark. Code Ann. §§ 5-64-420, 436
and Kans. Stat. Ann. § 21-5705 – should be rejected for purposes of the career offender
enhancement. Objecting to the Presentence Investigation Report, counsel argued:
Under Arkansas law, “deliver” or “delivery” is defined to mean “. . . attempted
transfer . . . of a controlled substance . . . in exchange for money or anything of
value. . . .” . . . If the [state’s] statutory definition of the offense of conviction is
broader than the generic defined offense [in the Guidelines], it does not qualify as
a career offender predicate.
…
Under Kansas law, distribution means “the actual, constructive, or attempted
transfer from one person to another . . .” . . . Distribute also includes an “offer for
sale.” . . . Under similar reasoning above, Kansas law is more broad then [sic] the
definition of a controlled substance offense in the text of the Guidelines, which does
not describe inchoate offenses.
(ECF No. 22, pp. 1, 2 (emphasis added); ECF No. 26, pp. 1-6). Counsel restated this argument
during Petitioner’s sentencing hearing where Judge Brooks considered and then rejected it. (ECF
41, pp. 6-9). Substantially identical issues were then raised on appeal to the Eighth Circuit:
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[Petitioner] contends that [the Arkansas and Kansas] offenses are not qualifying
offenses because inchoate offenses such as attempt and offers to sell are overbroad
and do not fall within the definition of a controlled substance offense that appears
in [U.S.S.G. § 4B1.2].
…
Without any expansive terms in the text of § 4B1.2(b) that might be interpreted to
include inchoate offenses or other precursor offenses, the commentary to § 4B1.2
has not legal force. . . . The Sentencing Commission thus has no power to “expand”
the textual definition to include otherwise excluded inchoate offenses or precursor
offenses through an application note in the commentary.
Brief for Appellant, at 19, 24-25 (emphases added).
Petitioner contends that counsel’s performance was deficient for construing his qualifying
convictions as “attempt” crimes instead of characterizing them as “offers for sale.” (ECF No. 50,
pp. 3-5, 6). The record does not support Petitioner’s argument. Counsel explicitly argued that
convictions for “offers to sell” are not qualifying offenses and implicitly argued that “offers to
sell” should not be qualifying offenses by mentioning “inchoate offenses or other precursor
offenses.” (ECF No. 22, pp. 1, 2; ECF No. 26, pp. 1-6; ECF No. 41, pp. 6-7); Brief for Appellant,
at 19, 24-25. Both Judge Brooks and a panel of the Eighth Circuit Court of Appeals considered
and rejected these arguments. (ECF No. 41, pp. 6-9); see also United States v. Walton, 840
Fed.Appx. 46 (8th Cir. 2021). Petitioner is thus procedurally barred from arguing that counsel
was ineffective for arguing “attempt” instead of “offer for sale” in this Motion. See United States
v. Kraemer, 810 F.2d 173,177 (8th Cir. 1987).
4. Petitioner is also barred from arguing the “offer for sale” and
“attempt” distinction in his Motion because he does not suffer
prejudice.
Petitioner is also barred from arguing counsel was ineffective for arguing “attempt” instead
of “offer for sale” because Petitioner cannot demonstrate prejudice. A Section 2255 motion cannot
be used to argue issues that could have been raised on appeal unless the petitioner shows he
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suffered prejudice, shows actual innocence, or shows a miscarriage of justice. See Ramey v. United
States, 8 F.3d 1313, 1314 (8th Cir. 1993); Silk v. United States, 955 F.3d 681, 683 (8th Cir. 2020)
(“Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.”);
Strickland v. Washington, 466 U.S. 668, 691 (1984).
Petitioner does not argue actual innocence or a miscarriage of justice. Rather, Petitioner
contends counsel prejudiced him by foreclosing his ability to raise the “offer for sale” issue on
appeal, which resulted in a harsher sentence under the career offender enhancement. (ECF No.
50, pp. 5-6, 8-9) (“During [sentencing and direct appeal], [Petitioner] lost process [because of
counsel’s failed argument]. . . . [Petitioner] would have received a sentence substantially lower
than 151 months had he been provided with [an effective defense counsel] . . . that would oppose
Mr. Walton’s conviction counting it as an attempt crime, when in [actuality], it was only a mere
‘offer for sale’ . . . .”).
As discussed above, Petitioner’s counsel did raise this argument multiple times. (ECF No.
22, pp. 1, 2; ECF No. 26, pp. 1-6; ECF No. 41, pp. 6-7); Brief for Appellant, at 19, 24-25. But
assuming counsel had failed to make this argument, Petitioner cannot demonstrate prejudice. The
Guidelines require at least two qualifying offenses to receive the career offender enhancement.
See U.S.S.G. § 4B1.1(a). Inchoate crimes, like attempt with intent to distribute, are “controlled
substance offenses.” See United States v. Jefferson, 975 F.3d 700, 706-08 (8th Cir. 2020) (relying
on United States v. Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995) (en banc)); see also United
States v. Maldonado, 864 F.3d 893, 899-901 (8th Cir. 2017).
Petitioner’s career offender enhancement is predicated upon one Kansas conviction and
two Arkansas convictions. (ECF No. 27 ⁋⁋ 83, 88). And, as the Government correctly indicates,
only the Kansas statute defines “distribute” as including an “offer for sale.” (ECF No. 53, pp. 16-
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17). Kansas convicted Petitioner for possessing a controlled substance with the intent to distribute.
See KANS. STAT. ANN. § 21-5705. Kansas law defines “distribute” as an “. . . offer for sale [] . . .
or any act that causes or is intended to cause some item to be transferred from one person to
another. . . .” KANS. STAT. ANN. §§ 21-5701(d), and -5111(g) (emphasis added).
Petitioner is correct that the Eighth Circuit has not ruled whether an “offer for sale” is a
“controlled substance offense” for career offender purposes. See United States v. Jefferson, 975
F.3d 700, 707 (8th Cir. 2020); United States v. Thomas, 886 F.3d 1274, 1276 (8th Cir. 2018)
(stating in dicta, “. . . [T]o meet the Guidelines definition [of ‘controlled substance offense’], a
state law must require something more than a mere offer to sell.”) (emphasis added). Should the
Eighth Circuit consider whether Petitioner’s Kansas conviction falls within the Guidelines’
definition of “controlled substance offense,” it would apply the categorical approach. See United
States v. Maldonado, 854 F.3d 893 (8th Cir. 2017). But this analysis is not necessary here because,
contrary to his argument, Petitioner’s two Arkansas convictions cannot be construed as “offers for
sale,” and are sufficient—without consideration of the Kansas conviction—for application of the
career offender enhancement.
Arkansas convicted Petitioner twice for possessing controlled substances with purpose to
distribute. See ARK. CODE ANN. §§ 5-64-436, -424; (ECF No. 27 ⁋ 88). Arkansas law defines
“distribute” as “deliver,” and “deliver” means “the actual, constructive, or attempted transfer from
one (1) person to another of a controlled substance or counterfeit substance in exchange for money
or anything of value[] . . . .” ARK. CODE ANN. § 5-64-101(9) (distribute); ARK. CODE ANN. § 5-
64-101(6) (deliver) (emphasis added). Accordingly, Petitioner’s Arkansas convictions are subject
to the Eighth Circuit’s holdings in Jefferson, Maldonado, and Mendoza-Figueroa: “attempt”
crimes are “controlled substance offenses” for career offender purposes. See Jefferson, 975 F.3d
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at 706-08; Maldonado, 864 F.3d at 899-901; Mendoza-Figueroa; 65 F.3d at 693. Thus, while
possible that Petitioner’s Kansas conviction might not be a “controlled substance offense,”
Petitioner’s two Arkansas convictions unquestionably satisfy the career offender enhancement.
See Strickland, 466 U.S. at 691; Jefferson, 975 F.3d at 706-08.
B. Ineffective Assistance of Counsel
Petitioner’s counsel was not ineffective for arguing against application of Eighth Circuit
law. Ineffective assistance of counsel claims concerning sentencing are evaluated using the
standard set forth in Strickland v. Washington. See 466 U.S. 668, 687 (1984); see also Lafler v.
Cooper, 566 U.S. 156, 165 (2012). To satisfy the two prongs of the Strickland test, a petitioner
must show (1) that counsel’s performance was deficient, and (2) that the deficient performance
prejudiced the defense. See Strickland, 466 U.S. at 687. If a defendant fails to establish either of
the two prongs, the court need not address both prongs when deciding the matter. See Donelson
v. Steele, 16 F.4th 559, 570 (8th Cir. 2021). Petitioner’s claim fails both Strickland prongs.
1. Counsel’s performance was not deficient.
Counsel was not ineffective for arguing against settled precedent. To demonstrate deficient
performance, a defendant “must show that counsel’s representation fell below an objective
standard of reasonableness.” Strickland, 466 U.S. at 688. The reasonableness of counsel’s
challenged conduct is judged “on the facts of the particular case, viewed as of the time of counsel’s
conduct.” King v. United States, 595 F.3d 844, 853 (8th Cir.2010). “It is the defendant’s burden
to overcome the strong presumption that counsel’s actions constituted objectively reasonable
strategy under the circumstances.” Schumacher v. Hopkins, 83 F.3d 1034, 1037 (8th Cir. 1996).
“[S]trategic choices made after a thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable . . . .” United States v. Orr, 636 F.3d 944, 952 (8th Cir.
2011). And because scrutiny of counsel’s performance is “highly deferential,” there is a “strong
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presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance . . . .” Kelly v. United States, 819 F.3d 1044, 1047 (8th Cir. 2016).
Petitioner argues that his counsel was ineffective for arguing against the Eighth Circuit’s
settled precedent that the U.S. Sentencing Commission has the authority to define attempt crimes
as a “controlled substance offense” under U.S.S.G. § 4B1.2. See United States v. Mendoza-
Figueroa, 65 F.3d 691 (8th Cir. 1995) (en banc); see also United States v. Merritt, 934 F.3d 809
(8th Cir. 2019); (ECF No. 50, p. 5). Counsel was not ineffective for making this argument,
however, because it was Petitioner’s best (and perhaps only) chance of avoiding the career offender
enhancement. It was also objectively reasonable (even if unsuccessful) to argue for an alternative
interpretation of “controlled substance offense” because the circuits are split on this issue.
Compare Mendoza-Figueroa, 65 F.3d 691 and Merritt, 934 F.3d 809 with United States v. Harvis,
927 F.3d 382 (6th Cir. 2019), United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018), and
United States v. Campbell, 22 F.4th 438 (4th Cir. 2022).
Moreover, counsel did not make the “attempt/offer for sale/inchoate” argument ignorant of
the Eighth Circuit’s holding. To the contrary, it was counsel’s stated purpose to seek Supreme
Court resolution of the issue when presenting this argument before the Eighth Circuit: “[Petitioner]
recognizes that current law in [the Eighth Circuit] is in opposition to his argument, but seeks to
preserve his argument for further appeal. . . . [Petitioner] respectfully submits that Mendoza-
Figueroa and Merritt have been wrongly decided.” Brief for Appellant at 19 (internal citations
omitted). Rather than showing that counsel’s strategic decision resulted from a “lack of diligence
in preparation,” counsel’s argument indicates he understood only too well Petitioner’s dilemma
under the Eighth Circuit’s holdings, made the best of a difficult legal situation, and argued
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Petitioner’s case in a way to seek further review. Cole v. Roper, 623 F.3d 1183, 1198 (8th
Cir.2010). That is the opposite of ineffective.
2. Petitioner was not prejudiced by counsel’s decision.
Petitioner also fails to show how he suffered prejudice. To meet the prejudice prong, “[t]he
defendant must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This
standard is less onerous than the preponderance-of-the-evidence standard. Id. The likelihood of
a different outcome, however, “must be substantial, not just conceivable.” Harrington v. Richter,
562 U.S. 86, 112 (2011).
Petitioner makes a general claim that he suffered prejudice because, but for counsel’s error,
he would have received a substantially lower sentence. (ECF No. 50, p. 9). But Petitioner cannot
causally link the specific allegation that counsel was ineffective for arguing against settled
precedent with the asserted prejudice of receiving a higher sentence. Had counsel not challenged
Mendoza-Figueroa and Merritt, Petitioner would have no argument with which to challenge his
sentence because—even if Petitioner prevailed on the “offer for sale” argument—his two Arkansas
convictions would have satisfied the career offender enhancement.1 For this reason, the
Government is correct: Counsel’s argument was Petitioner’s “only path” to not being considered
a career offender. (ECF No. 53, p. 15). Thus, Petitioner suffered no prejudice, and he fails to
satisfy both Strickland prongs.
1 It is also worth pointing out that Petitioner’s Motion must also fail for lack of prejudice because he could have
received the same 151-month sentence without the career offender enhancement. Petitioner received a base offense
level of 29, and his career offender enhancement placed him in the Criminal History Category VI, which carries a
sentencing range of 151 to 188 months. If Petitioner did not receive the career offender enhancement, he would be
placed in Criminal History Category V, which has a sentencing range of 140 to 175 months. Petitioner’s 151-month
sentence falls within this range; thus Petitioner cannot demonstrate prejudice even without the career offender
enhancement.
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C. Evidentiary Hearing
An evidentiary hearing is unwarranted in this case. Section 2255(b) provides that “[u]nless
the motion and the files and records of the case conclusively show that the prisoner is entitled to
no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings
of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). “Evidentiary hearings
on 28 U.S.C. § 2255 motions are preferred, and the general rule is that a hearing is necessary prior
to the motion’s disposition if a factual dispute exists. The district court is not permitted to make a
credibility determination on the affidavits alone.” United States v. Sellner, 773 F.3d 927, 929-30
(8th Cir. 2014). Motions under Section 2255 can be dismissed without a hearing, however, “if []
the petitioner’s allegations, accepted as true, would not entitle the petitioner to relief or [] the
allegations cannot be accepted as true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact.” Allen v. United States, 854 F.3d 428,
433 (8th Cir. 2017).
Petitioner alleges his counsel was ineffective for arguing “attempt” instead of “offer for
sale,” for arguing against settled precedent, and for failing to argue that Petitioner’s Arkansas
offenses should have been considered “possession” crimes. As previously stated, Petitioner’s first
argument is contradicted by the record. (ECF No. 22, pp. 1, 2; ECF No. 26, pp. 1-6; ECF No. 41,
pp. 6-7); Brief for Appellant, at 19, 24-25. Petitioner’s second argument is conclusory rather than
factual, but accepting this argument as true does not entitle him to relief. Had counsel not argued
against Eighth Circuit precedent, Petitioner would be in the same position he is currently in because
Judge Brooks would have applied the career offender enhancement in light of Petitioner’s two
Arkansas convictions.
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Petitioner’s final argument also fails. Assuming Petitioner’s Arkansas convictions could
be considered “possession” instead of “attempt” crimes, the Court was well within its discretion
to sentence Petitioner to 151 months because the statutory range of punishment for possession of
methamphetamine with intent to distribute is five to forty years. See 21 U.S.C. §
841(b)(1)(B)(viii). In sum, the record “conclusively show[s] that [Petitioner] is entitled to no
relief.” 28 U.S.C. § 2255(b). Petitioner’s Section 2255 motion should therefore be dismissed
without an evidentiary hearing.
D. Certificate of Appealability
A certificate of appealability should not issue in this case. A district court’s final order in
a Section 2255 proceeding is subject to appellate review only if the petitioner makes a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial showing”
is one where “reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see, e.g., Dorsey v.
Vandergriff, 30 F.4th 752, 755-60 (8th Cir. 2022) (affirming the district court’s denial of a
certificate of appealability because jurists could not find the court’s decision debatable).
As noted herein, Petitioner alleges that he was denied the effective assistance of counsel.
(ECF No. 50); see also U.S. CONST. amend. VI. As previously discussed, however, Petitioner has
not made a “substantial showing” of a constitutional violation because he fails to show how his
counsel’s performance was unreasonable, ineffective, or prejudicial. See Strickland v. Washington,
466 U.S. 668, 687 (1984). Rather, Petitioner’s arguments are contradicted by the record, are
conclusory, and do not establish prejudice. (ECF No. 22, pp. 1, 2; ECF No. 26, pp. 1-6; ECF No.
41, pp. 6-7); Brief for Appellant, at 19, 24-25; see also Sun Bear v. United States, 644 F.3d 700,
704-06 (8th Cir. 2011). For these reasons, a certificate of appealability should not issue.
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III. CONCLUSION
Petitioner’s Section 2255 Motion should be denied because his claims are procedurally
defaulted and because his ineffective assistance claims fail to meet Strickland’s two-pronged test.
An evidentiary hearing is not appropriate because, even if Petitioner’s arguments were taken as
true, he would not be entitled to a remedy, and a certificate of appealability should not issue
because Petitioner does not make a substantial showing that his counsel’s performance violated
Petitioner’s Sixth Amendment right to effective counsel.
It is therefore recommended that Petitioner’s 28 U.S.C. § 2255 Motion to Vacate, Set
Aside, or Correct Sentence by a Prisoner in Federal Custody be DENIED and DISMISSED
WITH PREJUDICE. It is further recommended that a Section 2255(b) Evidentiary Hearing and
a Section 2253(c) Certificate of Appealability likewise be DENIED.
The parties have fourteen (14) days from receipt of this Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to timely
file written 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.
DATED this 31st day of March 2023.
______________________________
CHRISTY COMSTOCK
U.S. MAGISTRATE JUDGE
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