Barris v. United States
| Decision Date | 07 December 2020 |
| Docket Number | Case No. 1:18-CV-00077-JAR |
| Parties | GENE LEMAY BARRIS, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Movant Gene Lemay Barris' Third Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 24) and Motion for an Evidentiary Hearing. (Doc. 20). Respondent United States of America responded (Doc. 26), and Movant filed a reply. (Doc. 28). Movant has also filed a supplement to his third amended motion (Doc. 27), and Respondent has responded to the supplement. (Doc. 29). For the reasons discussed below, the motions will be denied.
On September 15, 2014, Movant signed a guilty plea agreement admitting violations of 21 U.S.C. § 841(a)(1) by having knowingly possessed methamphetamine with intent to distribute (Count I) and 18 U.S.C. § 922(g)(1) by having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, thereafter knowingly possessed a firearm, and at some point transported such firearm across state lines or a boundary of the United States (Count II). United States v. Barris, Case No. 1:14-CR-00002-JAR (E.D. Mo.), Doc. 37 (hereinafter "Barris Criminal Case"). On December 15, 2014, Movant was sentenced to 216 months imprisonment for each count, such terms to be served concurrently. Id., Doc. 54. Movant's sentence under 18 U.S.C. 922(g)(1) was enhanced pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), and because Movant was classified as a career offender under the U.S. Sentencing Guidelines, U.S.S.G. § 4B1.2(a) ("Career Offender Provision").
Movant subsequently filed a motion pursuant to 28 U.S.C. § 2255 arguing that he did not have three or more qualifying convictions as required for enhancement under the ACCA and Career Offender Provision. Barris v. USA, Case No. 1:16-cv-00207-JAR (E.D. Mo.) (hereinafter "Barris Prior Habeas"), Docs. 8, 10. This Court granted the motion and ordered re-sentencing after finding that Movant did not have three or more predicate offenses at the time he committed the applicable offenses. Barris Prior Habeas, Doc. 14. On March 20, 2017, this Court held a resentencing hearing and resentenced Movant to concurrent terms of 204 months on Count I and 120 months on Count II. Barris Criminal Case, Doc. 71.
Movant has now filed a Third Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 alleging various constitutional deficiencies relating to the above proceedings. This Court will construe the motion liberally given Movant's pro se status. See Estelle v. Gamble, 429 U.S. 97, 106 (1976). Movant brings the following grounds for relief:
A § 2255 movant is entitled to relief when his sentence "was imposed in violation of the Constitution or laws of the United States." Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (citing 28 U.S.C. § 2255). The movant must show that the claimed error "amount[s] to a 'fundamental defect which inherently results in a complete miscarriage of justice.'" Rhodes v. United States, No. 4:15-CV-432 JAR, 2018 WL 950223 (E.D. Mo. Feb. 20, 2018) (quoting Davis v. United States, 417 U.S. 333 (1974)).
"When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged," however, "he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of a guilty plea." Tollett v. Henderson, 411 U.S. 258, 266 (1973). "Collateral review of a guilty plea is therefore 'ordinarily confined to whether the underlying plea was both counseled and voluntary.'" Green v. United States, No. 1:09-CV-34 CAS, 2012 WL 760891, at *5 (E.D. Mo. Mar. 7, 2012) (quoting United States v. Broce, 488 U.S. 563, 569 (1989)).
To prove ineffective assistance of counsel, Movant must show that his attorney's performance was objectively unreasonable and that he was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). It is Movant's "burden to overcome the strong presumptionthat counsel's actions constituted objectively reasonable strategy under the circumstances." Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005) (quoting Schumacher v. Hopkins, 83 F.3d 1034, 1037 (8th Cir. 1996)). To establish prejudice, Movant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "It is not sufficient for a defendant to show that the error had some 'conceivable effect' on the result of the proceeding because not every error that influences a proceeding undermines the reliability of the outcome of the proceeding." Odem v. Hopkins, 382 F.3d 846, 851 (8th Cir. 2004) (quoting Strickland, 466 U.S. at 693).
Before addressing Movant's substantive ineffective of assistance of counsel claims, the Court notes that Movant clearly affirmed at his change of plea hearing that he had enough time to consult with counsel and Initial Counsel did "[e]verything and more" to assist him with his case. Barris Criminal Case, Doc. 81 at 7-8. Movant made similar representations at his resentencing hearing regarding Resentencing Counsel. Barris Criminal Case, Doc. 78 at 6-7.
Under the Antiterrorism and Effective Death Penalty Act of 1996, a federal inmate seeking relief under 28 U.S.C. § 2255 must first receive certification from the court of appeals to file a second or successive motion. In Magwood v. Patterson, the Supreme Court held that a subsequent petition under 28 U.S.C. § 2254 after an initial petition resulted in resentencing was not "second or successive." 561 U.S. 320 (2010). The Eighth Circuit has stated the Magwood rule clearly: "If there is a new sentencing between two habeas petitions, a subsequent habeas application challenging the new judgment is not successive." Collins v. United States, No. 19-2321, 2020 WL 5626152, at *1 (8th Cir. Sept. 21, 2020) (per curiam) (emphasis added). The Eighth Circuit has also held that Magwood applies to motions brought pursuant to § 2255. Dyab v. United States, 855F.3d 919, 923 (8th Cir. 2017). For a § 2255 motion, "it is well established that '[t]he sentence is the judgment.'" United States v. Brown, 915 F.3d 1200, 1202 (8th Cir. 2019) (quoting Berman v. United States, 302 U.S. 211, 212 (1937)).
There is a circuit split as to whether the Supreme Court's holding in Magwood applies to a petitioner who subsequently challenges an undisturbed element of the underlying conviction, as Movant does here. See generally Megan Volin, Defining "Second or Successive" Habeas Petitions after Magwood, 85 U. CHI. L. REV. 1545 (2018). It does not appear that the Eighth Circuit has addressed this specific question. See Davis v. Kelley, No. 5:19-CV-00147 JM/PSH, 2019 WL 6170858, at *3 n.1 (E.D. Ark. 2019) (). The Eighth Circuit's recent decision in Collins provides some guidance. In Collins, the movant's initial § 2255 motion was granted in part and the court entered an amended judgment. The movant then filed another § 2255 motion "asserting claims concerning both his attorney in the original criminal proceedings and his attorney for the first section 2255 proceedings." Collins, 2020 WL 5626152, at *1. The district court dismissed the motion entirely on the grounds that it was an unauthorized successive motion. The Eighth Circuit, however, vacated the district court's dismissal "only as to [the movant's] claim that his attorney failed to honor his request to file a [notice of appeal] from the amended judgment" and remanded for further proceedings. Id.
Grounds 1(a) and 1(c) of Movant's current motion concern Initial Counsel's alleged ineffective assistance as to Movant's initial guilty plea.1 A reasonable argument can be made that these are undisturbed elements of Movant's underlying conviction and, according to most courts of appeal which have addressed the issue, can be challenged following the entry of an amended judgment. Grounds 1(b) and 1(d), alternatively, exclusively relate to Movant's initial sentencing.In Magwood, the movant's "claim of ineffective assistance at resentencing turn[ed] upon new errors." Magwood, 561 U.S. at 339. Grounds 1(b) and 1(d) do not challenge the legitimacy of the amended judgment in any meaningful respect and are arguably subject to dismissal. Given the substantial legal uncertainty on this issue, however, the Court will address all of Ground 1 on the merits.2
Ground 1(a): Initial Counsel rendered ineffective...
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