Barker v. United States
| Decision Date | 31 May 2022 |
| Docket Number | 4:21-cv-00470-RK-P,Crim. 4:16-00084-CR-RK-1 |
| Parties | CURTIS DAVID BARKER, Plaintiff, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Movant is incarcerated at the Federal Correctional Institution in Talladega, Florida, where he is serving a 180-month sentence for drug and firearm offenses. (Crim. Doc. 62.)[1] Movant pled guilty to his crimes (id.), and he unsuccessfully challenged the validity of his convictions on appeal. (Crim Doc. 71-1.) Now before the Court is Movant's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The motion is fully briefed. (Docs. 7, 11, 14, 18.[2]) Movant seeks relief under § 2255 challenging the Court's order at sentencing regarding “special sex offender conditions” imposed on supervised release. Movant also asserts a claim of ineffective assistance of appellate counsel for failing to challenge this special condition on direct appeal.
After careful consideration and for the reasons explained below Movant's motion to vacate, set aside or correct his sentence pursuant to § 2255 is GRANTED in part and DENIED in part.[3] Specifically, Movant's motion to vacate, set aside, or correct his sentence is granted as to the judgment entered April 18, 2019, in United States v Barker, 4:16-cr-00084-RK-1 (Crim. Doc. 62), imposing as a mandatory condition Movant “must comply with the requirements of the Sex Offender Registration and Notification Act [‘SORNA'], ” and as a special condition Movant shall comply with federal sex offender registration requirements. Movant's motion is otherwise denied.
On September 19, 2018, Movant entered a guilty plea before this Court pursuant to a written plea agreement to three counts: felon in possession of a firearm and ammunition; possession of marijuana and cocaine with the intent to distribute; and possession of a firearm in furtherance of drug trafficking. (Crim. Docs. 53, 54.) Movant's plea agreement included the following appeal waiver:
With respect to all other issues [other than the denial of his pretrial motion to suppress evidence], however, [Movant] expressly waives his right to appeal his sentence, directly or collaterally, on any ground except claims of (1) ineffective assistance of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence. An “illegal sentence” includes a sentence imposed in excess of the statutory maximum, but does not include less serious sentencing errors, such as a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence.
The presentence investigation report (“PSR”) completed by the Probation Office prior to Movant's sentencing included as part of Movant's criminal history a 1981 conviction under Florida state law for attempted sexual battery. (Crim. Doc. 57 at 9.) In the sentencing section, the PSR recommended as a special condition to any term of supervised release, among others, that “[t]he defendant shall comply with all state and federal sex offender registration requirements.” (Id. at 26.) Movant did not object to the PSR's special conditions as to any term of supervised release to be imposed. (See id. at 28-32.)
Movant's counsel (who represented Movant both at plea/sentencing and on appeal) submitted an affidavit in the Government's supplemental response wherein counsel attests that prior to sentencing Movant received a copy of the PSR and that counsel “visited in person with [Movant] to review, explain and discuss the PS[R] in its entirety, including the suggested special condition . . . that he comply with all state and federal sex offender registration requirements.” (Doc. 14-1.) Counsel attests Movant “initially questioned the applicability” of the condition but “indicated that he understood that any legal objection would be meritless and that this condition would not constitute a new requirement that he register as a sex offender, ” and “then indicated that he had no objection to this provision.” (Id.) In his reply to the Government's supplemental response, Movant asserts he did not see the PSR “on paper” or otherwise until “he was at Oklahoma City” after sentencing. (Doc. 18 at 3.)
At the sentencing hearing, after imposing a term of supervised release after imprisonment, the Court ordered that Movant “shall comply with the mandatory and standard conditions that have been adopted by this Court” in addition to “the special conditions that are outlined in section D of the presentence investigation report, ” (Sent. Tr. at 27-28), which includes the sex offender registration requirement as noted above. Neither Movant nor Movant's counsel objected at the sentencing hearing to this special condition. Finally, the Court's written judgment requires that Movant “comply with the requirements of the Sex Offender Registration and Notification Act [SORNA]” and “comply with all state and federal sex offender registration requirements” on supervised release. (Crim. Doc. 62 at 3, 5.)
Under 28 U.S.C. § 2255, a federal prisoner may collaterally attack (1) a sentence imposed in violation of the Constitution or federal law, (2) a sentence for which the court lacked jurisdiction to impose, (3) a sentence that exceeds the maximum authorized by law, or (4) a sentence that is otherwise subject to collateral attack. § 2255(a). Generally, an evidentiary hearing is required “[u]nless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief.” § 2255(b). At the same time, a district court may grant § 2255 relief without an evidentiary hearing “where there is no disputed question of fact and the files and the records of the case establish conclusively that the petitioner is entitled to relief.” Umanzor v. United States, No. C 11-4024-MWB, 2012 WL 124377, at *4 (N.D. Iowa Jan. 17, 2012) (citing Grady v. United States, 269 F.3d 913, 918 (8th Cir. 2001)).
Movant asserts four grounds for relief under § 2255. In Grounds One, Two, and Four, Movant claims he was denied effective assistance of appellate counsel because his attorney failed to challenge the Court's order as a condition of supervised release that he comply with federal and state sex offender registration requirements. (Doc. 1 at 4-5, 8.) To prevail on these claims, Movant must show that counsel's performance was both constitutionally deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Smith v. Robbins, 528 U.S. 259, 285 (2000) (). Relatedly, in Ground Three, Movant claims the Court erred by “impos[ing] special sex offender conditions . . . without any explanation . . . [because he] did not qualify for it” since the instant criminal conviction was not related to the earlier Florida attempted sexual battery conviction and because he is not required to register as a sex offender under either state or federal law. (Doc. 1 at 7.)
First, to the extent Movant raises a claim of error by the Court, the Government argues Movant has procedurally defaulted this claim by failing to raise it on direct appeal. Generally, a § 2255 movant cannot assert on post-conviction relief a claim he did not raise on direct appeal. McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001)). A movant can overcome this procedural default, however, “by demonstrating cause for the default and prejudice or actual innocence.” Id. (citing Bousley v. United States, 523 U.S. 614, 622 (1984)). As the Eighth Circuit has recognized, “[i]neffective assistance of appellate counsel may [itself] constitute cause and prejudice to overcome a procedural default.” Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005) (citation omitted). In other words, an ineffective assistance of appellate counsel claim (as Movant asserts here) can serve as both an independent claim for habeas relief as well as to excuse procedural default of a claim. Id. For this reason, the Court considers first Movant's claim for ineffective assistance of appellate counsel as both an independent claim for relief under § 2255 as well as to overcome the procedural default as to Movant's third Ground for habeas relief.
To establish ineffective assistance of appellate counsel, Movant “must show that appellate counsel's performance was constitutionally deficient and that he was prejudiced by that deficiency.” Charboneau v. United States, 702 F.3d 1132, 1136 (8th Cir. 2013) (citing Strickland, 466 U.S. at 687). In other words, Movant must demonstrate (1) “counsel's performance was objectively unreasonable” and (2) “a reasonable probability that the outcome of the appeal would have been different if counsel had raised the claim.” Roe v. Delo, 160 F.3d 416, 418 (8th Cir. 1998) (citation and quotation marks omitted).
Movant argues appellate counsel[4] was constitutionally ineffective in representing him on appeal because counsel (1) failed to research Movant's files and records that would have revealed that his earlier Florida conviction does not require him to register as a sex offender under either state or federal law, and (2) failed to raise the issue on direct appeal. Movant argues appellate counsel's decision not to raise this challenge could not have been a strategic decision because the sex-offender-registration special condition on supervised release does not apply to Movant and the Court did not “give reason[s] as to why Mr. Barker qualified for the special condition[].”
First the Court considers Strickland's prejudice prong. Under this prong, the Court considers whether there is a...
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