Whitaker v. USA

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DONALD WHITAKER,
Movant,
vs.
UNITED STATES,
Respondent.
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) 	Case No. 4:23-cv-00477-SEP
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MEMORANDUM AND ORDER
This matter is before the Court on Movant Donald Whitaker’s Motion to Vacate, Set Aside,
or Correct Sentence Under 28 U.S.C. § 2255, Doc. [1]. The motion is fully briefed. For the reasons
set forth below, the motion is denied.
I. 	Background
In January 2020, Whitaker was charged with one count of being a felon in possession of a
�irearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Whitaker, 4:19-cr-00261-SEP,
Crim. Doc. [1]. Whitaker waived indictment and pled guilty pursuant to a written plea agreement.
Crim. Docs. [55], [58].
In the plea agreement, Whitaker admitted that he knowingly violated § 922(g)(1). Doc.
[58]. He also acknowledged the possibility that he could be subject to enhanced penalties under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See id. at 4, 6. The agreement stated
that “[t]he Defendant is pleading guilty with full knowledge of these possibilities, has discussed
these possibilities with counsel and will not be able to withdraw the guilty plea if the Court
determines the foregoing statute applies to Defendant’s sentence.” Id. During his change of plea
hearing, Whitaker con�irmed under oath that he was satis�ied with his counsel’s representation,
and he understood that, “[i]f [he] were to qualify under that law, [he] would be looking at a much
higher sentence.” Crim. Doc. [65] at 4, 17-18.
The presentence investigation report (PSR) calculated a total offense level of 30 and
determined that some of Whitaker’s prior offenses quali�ied as predicate offenses for the purpose
of 18 U.C.S. § 924(e). Crim. Doc. [63] ¶ 28. Whitaker objected to the PSR’s characterization of his
prior felonies as predicate offenses for purposes of ACCA; the Government responded; and
Whitaker replied. Crim. Docs. [75], [76], [98].
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At sentencing, Whitaker again con�irmed that he was “fully satis�ied” with his counsel’s
representation, and then he withdrew his objections to the PSR through his counsel. Crim. Doc.
[132] at 8, 11. The Court speci�ically asked counsel if Whitaker had any remaining objections to
the PSR, and counsel con�irmed that he did not. Id. at 11. The Court then adopted the PSR’s
guideline calculation and heard the parties’ arguments regarding the 18 U.S.C. § 3553(a) factors.
Id. at 14. Whitaker requested a sentence of 63 months, and after discussing the 3553(a) factors,
the Court found that a sentence of 63 months was suf�icient but not greater than necessary to
serve the purposes of sentencing. Id. at 16, 20, 28-29; see also Doc. [127] at 1.
In April 2023, Whitaker �iled a Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255, challenging his sentence. Doc. [1]. He alleges that counsel provided ineffective
assistance of counsel by withdrawing his objections to the PSR. Doc. [2].
II. 	Legal Standard
Section 2255 of Title 28 of the United States Code provides a “postconviction remedy for
federal prisoners.” Jones v. Hendrix, 599 U.S. 465, 469 (2023). Section 2255(a) states:
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.
A prisoner is entitled to an evidentiary hearing on a § 2255 motion unless the motion, �iles, and
records of the case conclusively show that the prisoner is not entitled to relief. Engelen v. United
States, 68 F.3d 238, 240 (8th Cir. 1995). The Eighth Circuit has explained that a § 2255 motion
“can be dismissed without a hearing if (1) the petitioner’s allegations, accepted as true, would not
entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than statements of fact.”
Id.
III. 	Discussion
In Grounds 1 and 2, Whitaker argues that counsel provided ineffective assistance by
withdrawing his objection to the PSR’s determination that some of his prior convictions qualify as
predicate offenses under § 924(e). Doc. [2]. The Government counters that Whitaker’s counsel
was not de�icient and counsel’s withdrawal of the objections did not prejudice Whitaker. Doc. [10].
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Claims of ineffective assistance of counsel require a movant to show “both that his
attorney’s performance ‘fell below an objective standard of reasonableness’ and that he was
prejudiced as a result.” 	Meza-Lopez v. United States, 929 F.3d 1041, 1044 (8th Cir. 2019) (quoting
Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). To show that counsel’s performance was
de�icient, a movant must show “counsel made errors so serious that counsel was not functioning
as the counsel guaranteed the defendant by the Sixth Amendment to the United States
Constitution.” Anderson v. United States, 393 F.3d 749, 753 (8th Cir. 2005) (citation modi�ied).
Because of the dif�iculties inherent in evaluating an attorney’s performance, the court must
provide a “strong presumption that counsel’s conduct falls within the wide range of professionally
reasonable assistance.” Toledo v. United States, 581 F.3d 678, 680 (8th Cir. 2009) (quoting
Strickland, 466 U.S. at 689). To demonstrate prejudice, a movant must show a “reasonable
probability that but for a counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. “A reasonable probability is a probability suf�icient to undermine con�idence in
the outcome or a substantial, not just conceivable, likelihood of a different result.” Meza-Lopez,
929 F.3d at 1044-45 (citation modi�ied). “In examining whether prejudice has resulted from
counsel's de�icient performance, the ultimate focus is on whether counsel's de�icient performance
renders the result of the trial unreliable or the proceeding fundamentally unfair.” Carter v. Hopkins,
92 F.3d 666, 669 (8th Cir. 1996) (citation modi�ied).
To prevail on the performance prong, Whitaker must demonstrate that his counsel’s
withdrawal of his objections fell below the wide range of professionally reasonable assistance. But
counsel “need not raise every single conceivable argument to defeat a claim of ineffective
assistance of counsel.” Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996). 	And “[i]t is not
ineffective assistance of counsel to withdraw objections that have no support in the law.” Toledo,
581 F.3d at 681. Rather, “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” United States v. Rice, 449 F.3d 887, 897
(8th Cir. 2006) (citation modi�ied).
Here, Whitaker has not shown that counsel performed de�iciently by withdrawing his
objections to the PSR. After the withdrawal, Whitaker received the sentence requested by his
counsel, which was signi�icantly below the guideline range. Doc. [132] at 13, 20. Given the “wide
range of professionally reasonable” decisions, counsel’s decision to withdraw Whitaker’s
objections and argue for a downward variance quali�ies as a strategic choice made in
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consideration of the pertinent law and facts. See Rice, 449 F.3d at 897. And Whitaker “cannot
complain when the district court gave him exactly what his lawyer asked.” See United States v.
Thompson, 289 F.3d 524, 526 (8th Cir. 2002) (af�irming the district court’s judgment where
counsel withdrew defendant’s objections to the PSR and requested a sentence “at the low end of
the guideline range, which the district court did”). Simply put, counsel’s performance was not
de�icient.
Because Whitaker fails to show de�icient performance, the Court does not reach the
prejudice prong of the ineffective assistance standard.
IV. 	Conclusion
For the reasons set forth above, Whitaker’s § 2255 motion is denied. Because the motion
and the record conclusively show that Whitaker is not entitled to relief, no evidentiary hearing will
be necessary. See Engelen, 68 F.3d at 240. And no certi�icate of appealability shall issue because
Whitaker has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. §
2253(c)(2).
Accordingly,
IT IS HEREBY ORDERED that Whitaker’s Motion to Vacate, Set Aside, or Correct Sentence
Under 28 U.S.C. § 2255, Doc. [1], is DENIED.
IT IS FURTHER ORDERED that all other pending motions are DENIED as moot.
IT IS FINALLY ORDERED that no certi�icate of appealability shall issue.
A separate Order of Dismissal will accompany this Memorandum and Order.
Dated this 18th day of December, 2025.
SARAH E. PITLYK
UNITED STATES DISTRICT JUDGE
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