Allen v. U.S.

Decision Date10 May 2011
Docket NumberCase No. 4:07CV00027 ERW
PartiesBILLIE JEROME ALLEN, Movant, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — Eastern District of Missouri
MEMORANDUM AND ORDER

This matter comes before the Court on Movant Billie Jerome Allen's Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody under a Sentence of Death [doc. #60].

I. PROCEDURAL BACKGROUND

In April 1997, Movant Billie Jerome Allen ("Allen") was indicted for crimes stemming from the March 17, 1997 armed bank robbery of the Lindell Bank and Trust Company in St. Louis, Missouri that resulted in the death, by multiple gunshot wounds, of bank security guard Richard Heflin. Allen was charged in Count I of the indictment with killing Mr. Heflin in the course of committing an armed bank robbery, in violation of 18 U.S.C. § 2113(a), (e), and in Count II with using a firearm to commit a crime of violence resulting in the death of another under circumstances constituting first-degree murder, in violation of 18 U.S.C. § 924(j)(1). The Government filed a timely notice of intent to seek the death penalty, and following trial before a jury, Allen was found guilty on both Counts. The jury returned a sentence of life imprisonment on Count I and death on Count II, and this Court formally sentenced Allen on June 4, 1998.

On appeal, the Eighth Circuit affirmed Allen's convictions and sentence, rejecting his argument that the Fifth Amendment required the indictment to include, for consideration by the grand jury, the statutory aggravating factors that trigger eligibility for the death penalty. United States v. Allen, 247 F.3d 741, 761-64 (8th Cir. 2001). Allen filed a petition for writ of certiorari to the United States Supreme Court, and following its decision in Ring v. Arizona, 536 U.S. 584 (2002), holding that the aggravating factors are equivalent to the elements of a capital offense for purposes of the Sixth Amendment, the Supreme Court granted Allen's petition, vacated the Eighth Circuit's decision as to Allen's sentence, and remanded the case to the Eighth Circuit for reconsideration in light of Ring. Allen v. United States, 536 U.S. 953 (2002).

The Eighth Circuit initially concluded on remand that Allen's sentence of death should be vacated, finding that the indictment's failure to charge at least one statutory aggravating factor violated Allen's Fifth Amendment right to indictment by a grand jury, and that although the error was not structural, it nevertheless required that his sentence be vacated because it was not harmless beyond a reasonable doubt.1United States v. Allen, 357 F.3d 745 (8th Cir. 2004). Following a subsequent rehearing en banc, however, the Eighth Circuit affirmed Allen's sentence, concluding that the defect in the indictment was both non-structural and harmless beyond a reasonable doubt. United States v. Allen, 406 F.3d 940 (2005). The Supreme Court denied Allen's petition for writ of certiorari with respect to that decision on December 11, 2006, United States v. Allen, 549 U.S. 1095 (2006), and for rehearing on February 20, 2007. United States v. Allen, 549 U.S. 1246 (2007).

In the present Motion under 28 U.S.C. § 2255, Allen asks the Court to set aside his death sentence on grounds of numerous alleged constitutional violations prior to trial, during trial, and throughout the appellate process.

II. LEGAL STANDARD FOR MOTIONS UNDER 28 U.S.C. § 2255

Under 28 U.S.C. § 2255(a), a federal prisoner who contends that his "sentence was imposed in violation of the Constitution or the 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." To obtain relief under § 2255, the movant must establish a constitutional or federal statutory violation constituting "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)). Subject to this "miscarriage of justice standard," requiring newly-discovered evidence of actual innocence or other, similarly extraordinary circumstances, issues that were raised and decided on direct appeal cannot be relitigated in a § 2255 motion. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001).

Claims brought under § 2255 may also be limited by procedural default. A movant "cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not." Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992)). Additionally, constitutional or jurisdictional claims not raised on direct appeal cannot be raised in a § 2255 motion "unless a petitioner can demonstrate (1) cause for default and actual prejudice or (2)actual innocence." United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 621 (1998)).

If the movant's claims are not procedurally barred, the Court must hold an evidentiary hearing to consider the claims "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994). Thus, a movant is entitled to an evidentiary hearing "when the facts alleged, if true, would entitle [the movant] to relief." Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir. 1986)). A court may dismiss a claim without an evidentiary hearing, in contrast, "if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Shaw, 24 F.3d at 1043 (citing Larson v. United States, 905 F.2d 218, 220-21 (8th Cir. 1990)).

III. DISCUSSION

Allen makes numerous claims of constitutional error in his § 2255 Motion. The Court first considers his claims alleging violations of his Sixth Amendment right to counsel, and then turns to his remaining claims alleging violations of rights secured by the Fifth, Sixth, and Eighth Amendments.

A. Claims of Ineffective Assistance of Counsel

Notwithstanding the general rule that § 2255 claims not raised on direct appeal are procedurally defaulted absent a showing of cause and prejudice, see United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001), ineffective assistance of counsel claims may be raised for the first time in a § 2255 motion regardless of whether they could have been raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). This exception to the procedural defaultrule exists to prevent defendants from being forced "to raise the issue before there has been an opportunity to fully develop the factual predicate for the claim." Id.; see also United States v. Cook, 356 F.3d 913, 919-20 (8th Cir. 2004) (ineffective assistance of counsel claims are only appropriate on direct appeal in "exceptional cases where the record has been fully developed," where necessary "to avoid a plain miscarriage of justice," and where the ineffectiveness of counsel is "readily apparent"); United States v. Rashad, 331 F.3d 908, 911 (D.C. Cir. 2003) (noting that the same attorney may serve as counsel at the trial and appellate levels and would be unlikely to raise his own ineffective assistance on appeal). As such, barring "unusual circumstances," proof of ineffective assistance of counsel satisfies the cause for default and actual prejudice requirements necessary to raise a constitutional issue for the first time in a § 2255 motion. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

In order to succeed on a claim of ineffective assistance of counsel, a litigant must satisfy the two-part standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), requiring proof (1) that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 687, 694; see also, e.g., United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006). The first prong requires a showing that counsel's performance was deficient, measured by an objective standard of reasonableness "in light of professional norms prevailing when the representation took place." Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010) (internal citations omitted); see also Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009) (per curiam). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Rice, 449 F.3d at 897 (quoting Strickland, 466 U.S. at689). As a result, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable," and "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. As to the second part of the test, the necessary showing of a "reasonable probability" of a different outcome is less than a preponderance of the evidence but greater than just a possibility; it "is a probability sufficient to undermine confidence in the outcome." Paul v. United States, 534 F.3d 832, 837 (8th Cir. 2008) (internal quotations and citations omitted); see also Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir. 2004) ("It is not sufficient for a defendant to show that the error has some 'conceivable effect' on...

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