Barnes v. United States
| Decision Date | 20 April 2012 |
| Docket Number | No. C 10-3075-MWB,No. CR 09-3010-MWB,C 10-3075-MWB,CR 09-3010-MWB |
| Parties | WAYNE BARNES, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
TABLE OF CONTENTS
This case is before me on petitioner Wayne Barnes's Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1), filed on December 15, 2010; on Barnes's Brief In Support of 28 U.S.C. § 2255 Petition (Civ. docket no. 14), filed by appointed counsel on June 21, 2011; on respondent's Response And Memorandum In Support Of Government's Response To Defendant's Motion (Civ. docket no. 16), filed on July 20, 2011; and on Barnes's Reply (Civ. docket no. 19), filed on August 19, 2011. Barnes claims that the attorney who represented him at the trial level provided him with ineffective assistance of counsel in several ways. The respondent denies that Barnes is entitled to any relief on his claims.
On March 18, 2009, Barnes was charged by a two-count Indictment (Crim. docket no. 2), with being a felon in possession of a firearm and ammunition and with possession and disposal of a stolen firearm. On May 27, 2009, Barnes appeared in front of Chief United States Magistrate Judge Paul A. Zoss to plead not guilty to the Indictment. See Crim. docket no. 8.
Barnes appeared before Judge Zoss on September 21, 2009, to change his plea to guilty on both counts of the Indictment. See Crim. docket no. 21. Judge Zoss filed a Rule 11(c)(1)(C) Report And Recommendation Concerning Pleas of Guilty (Crim. docket no. 27) on November 10, 2009. On December 14, 2009, I entered an Order AcceptingMagistrate Judge's Report And Recommendation Regarding Defendant's 11(c)(1)(C) Guilty Plea (Crim. docket no. 33).
Barnes appeared before me on December 16, 2009, for a sentencing hearing. See Crim. docket no. 34. I found Barnes's total offense level to be 23 with a criminal history category of VI. The parties had entered into a Rule 11(c)(1)(C) plea agreement providing for 120 months on count 1, 120 months on count 2, with 100 months concurrent on count 2 to count 1, with 20 months consecutive, for a total term of imprisonment of 140 months. See Sent. Trans. at 17. After independently reviewing the 18 U.S.C. §3553(a) sentencing factors, I sentenced Barnes to a total term of 140 months pursuant to the 11(c)(1)(C) agreement. See Sent. Trans. at 17.
On December 15, 2010, Barnes filed this Pro Se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1) ("Motion"). By Order (Civ. docket no. 4), an attorney was appointed to represent Barnes with regard to his Motion. On June 21, 2011, Barnes's counsel filed a Brief In Support Of 28 U.S.C. § 2255 Petition (Civ. docket no. 14). On July 20, 2011, the respondent filed a Response And Memorandum In Support Of Government's Response To Defendant's Motion Under 28 U.S.C. § 2255. (Civ. docket no. 16). On August 19, 2011, Barnes, through counsel, filed a Reply (Civ. docket no. 19).
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] 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; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (); Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir. 2003) (). Thus, a motion pursuant to § 2255 "is 'intended to afford federal prisoners a remedy identical in scope to federal Habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).
One "well established principle" of § 2255 law is that "'[i]ssues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.'" Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780. One exception to that principle arises when there is a "miscarriage of justice," although the Eighth Circuit Court of Appeals has "recognized such an exception only when petitioners have produced convincing new evidence of actual innocence," and the SupremeCourt has not extended the exception beyond situations involving actual innocence. Wiley, 245 F.3d at 752 . Just as § 2255 may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily "is not available to correct errors which could have been raised at trial or on direct appeal." Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in Habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
"Cause and prejudice" to resuscitate a procedurally defaulted claim may include ineffective assistance of counsel, as defined by the Strickland test, discussed below. Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when brought for the first time pursuant to § 2255, because of the advantages of that form of proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003). Otherwise, "[t]he Supreme Court recognized in Bousley that 'a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default.'" United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (). The "actual innocence" that may overcome either procedural default or allow relitigation of a claim that was raised and rejected on direct appeal is a demonstration "'that, in light of all the evidence, it is more likely than not that no reasonable juror would Have convicted [the petitioner].'" Johnson v. United States, 278 F.3d 839, 844 (8th Cir. 2002) (quoting Bousley, 523 U.S. at 623); see also House v. Bell, 547 U.S. 518, 536-37(2006). "'This is a strict standard; generally, a petitioner cannot show actual innocence where the evidence is sufficient to support a [conviction on the challenged offense].'" Id. (quoting McNeal v. United States, 249 F.3d 747, 749-50 (8th Cir. 2001)).
The Eighth Circuit Court of Appeals will review the district court's decision on a § 2255 motion de novo, regardless of whether the district court's decision grants or denies the requested relief. Compare United States v. Hilliard, 392 F.3d 981, 986 (8th Cir. 2004) () (citing United States v. White, 341 F.3d 673, 677 (8th Cir. 2003)); with United States v. Hernandez, 436 F.3d 851, 854 (8th Cir. 2006) () (quoting Never Misses A Shot v. United States, 413 F.3d 781, 783 (8th Cir. 2005)). However, "[a]ny underlying fact-findings are reviewed for clear error.'" Hernandez, 436 F.3d at 855 (quoting United States v. Davis, 406 F.3d 505, 508 (8th Cir. 2005)).
With these standards in mind, I turn to analysis of Barnes's claims for § 2255 relief.
"A district court does not err in dismissing a movant's section 2255 motion without a hearing if (1) the movant's 'allegations, accepted as true, would not entitle' the movant 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.'" Buster v. United States, 447...
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