Dean v. United States, C18-4044-LTS

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtLeonard T. Strand, Chief Judge
Docket NumberCrim.,13-CR-4082-LTS,C18-4044-LTS
PartiesLEVON DEAN, JR., Movant, v. UNITED STATES OF AMERICA, Respondent.
Decision Date28 September 2021

LEVON DEAN, JR., Movant,


No. C18-4044-LTS

Crim., 13-CR-4082-LTS

United States District Court, N.D. Iowa, Western Division

September 28, 2021


Leonard T. Strand, Chief Judge


This matter is before me on a motion, amended motion and addendum (Docs. 1, 2, 3) filed by Levon Dean, Jr., to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Dean alleges he is entitled to relief (1) based on a retroactive application United States v. Davis, 139 S.Ct. 2319 (2019), and (2) because he received ineffective assistance of counsel. After this court appointed counsel (Doc. 5), the Government resisted Dean's motion (Doc. 9) and both parties filed multiple briefs on the merits. See Docs. 32, 45, 50, 57. I find that an evidentiary hearing is not required.


On August 29, 2014, a jury found Dean guilty of the following charges set forth in a third superseding indictment (Crim. Doc. 154):

Count 1: Conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951 (Hobbs Act conspiracy)
Counts 2 and 3: Interference with commerce by robbery in violation of 18 U.S.C. §§ 2 and 1951 (Hobbs Act robbery)
Counts 6 and 7: Possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §§ 2 924(c)(1)(A)(ii) and 924(c)(1)(C)(i);[1]
Counts 9: Felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3) and 924(a)(2)

Crim. Doc. 284, 366. The jury found Dean not guilty of carjacking in violation of 18 U.S.C. §§ 2 and 2119(1) (Counts 4 and 5) and interstate transportation of a stolen vehicle in violation of 18 U.S.C. §§ 2 and 2312 (Count 10). Crim. Docs. 284, 289.

On January 23, 2015, Dean was sentenced to 400 months' imprisonment, consisting of 40 months on Counts 1, 2, 3 and 9, to be served concurrently, plus 60 months on Count 6 and 300 months on Count 7, with the sentences on Counts 6 and 7 to be served consecutively to each other and to the sentences on all other counts. Crim. Doc. 366 at 3. The Eighth Circuit Court of Appeals affirmed the judgment. United States v. Dean, 810 F.3d 521 (8th Cir. 2015).

The Supreme Court granted a writ of certiorari in December 2016 (Crim. Doc. 409) and ultimately reversed the Eighth Circuit on a matter unrelated to the issues now before me. Dean v. United States, 137 S.Ct. 1170, 1178 (2017). The case was remanded for a resentencing hearing, at which Dean was sentenced to 360 months and one day of imprisonment. Crim. Doc. 418. That term consists of one day on Counts 1, 2, 3 and 9, to be served concurrently, plus 60 months on Count 6 and 300 months on Count 7, with the sentences on Counts 6 and 7 to be served consecutively to each other and to the sentences on all other counts. Crim. Doc. 418 at 3.

Dean filed a timely motion (Doc. 1) on May 22, 2018, to set vacate, set aside or correct his sentence under 18 U.S.C. § 2255. He filed an amended motion (Doc. 2) on June 15, 2018, and an addendum (Doc. 3) on July 16, 2018. After counsel was appointed for Dean (Doc. 5), the Government filed an answer (Doc. 9) to the motion. Appointed


counsel then submitted a brief (Doc. 32) on Dean's behalf. The Government filed a response (Doc. 37) and Dean filed a reply (Doc. 45). After Dean filed another supplement (Doc. 49), the parties filed additional briefs (Docs. 50, 57). This case is now fully submitted and ready for decision.


A prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside or correct a sentence. See 28 U.S.C. § 2255(a). To obtain relief, a federal prisoner must establish:

[T]hat 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 [that the judgment or sentence] is otherwise subject to collateral attack.

Id.; see also Rule 1 of the Rules Governing § 2255 Proceedings (specifying scope of § 2255). If any of the four grounds are established, the court is required to “vacate and set the judgment aside and [to] discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

When enacting § 2255, Congress “intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (citation omitted). Section 2255 does not provide a remedy for “all claimed errors in conviction and sentencing.” Id. (citation omitted). Rather:

Relief under [§ 2255] is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.

United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (citation omitted); see also Sun Bear, 644 F.3d at 704 (“[T]he permissible scope of a § 2255 collateral attack . . . is severely limited[.]”). A collateral challenge under § 2255 is not interchangeable or substitutable for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982)


(“[W]e have long and consistently affirmed that a collateral challenge may not do service for an appeal.”). Consequently, “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Id. (citation omitted).

“Evidentiary hearings on [§ 2255] motions are preferred, and the general rule is that a hearing is necessary prior to the motion's disposition if a factual dispute exists.” Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013) (emphasis added). “The district court is not permitted to make a credibility determination on the affidavits alone.” Id. at 1206; see also United States v. Sellner, 773 F.3d 927, 930 (8th Cir. 2014) (“[The] district court abused its discretion when it credited the attorney's affidavit over the petitioners without first holding an evidentiary hearing.”). However, no hearing is required “where the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.” New v. United States, 652 F.3d 949, 954 (8th Cir. 2011) (citation omitted).


Dean alleges his convictions for possession of a firearm in furtherance of a crime of violence (Counts 6 and 7) should be vacated as being unconstitutional under Davis. I will refer to this claim for relief as a Davis claim (claim one). Additionally, Dean claims his former counsel failed to raise and preserve a Davis claim, which amounted to ineffective assistance of counsel (claim two). Id. Finally, Dean alleges five additional instances of ineffective assistance of counsel (claims 3 through 7).

A. Waiver

After the court appointed Dean counsel for his § 2255 motion, counsel filed a merits brief addressing only the Davis claim and its related ineffective assistance of counsel claim. See Doc. 32. Counsel did not address the other arguments in Dean's motion. Id. Those claims allege that trial counsel was ineffective by failing to:

a. request a jury instruction to ensure jurors understood that while they could have convicted him of brandishing a weapon in furtherance of a crime of violence, or of a lesser-included charge, they did not have to convict him at all (claim 3).
b. object to the all-white jury panel (claim 4).
c. object to the sufficiency of the evidence on the robbery charges, specifically that the Government had not established the robbery affected interstate commerce (claim 5).
d. move to suppress cell phone evidence as being the fruit of an illegal search (claim 6).
e. object to the relevance and prejudicial nature of a round of ammunition submitted into evidence (claim 7).

See Docs. 1, 2, 3. Counsel stated:

Mr. Dean's counsel will only be substantively arguing one issue, [claim one] however, this is an issue that is especially compelling in light of the United States v. Davis case. There is direct adverse case law in 8th Circuit on this issue and Mr. Dean believes this case presents an excellent candidate for a certificate of appealability. [Claim six] is potentially a good issue, but very difficult without an actual evidentiary hearing on this. Mr. Dean will provide cursory briefing on [claim six]. [Claim one] is very meaty though and will devote his wattages there.

Doc. 32. While counsel states he would substantively argue only claim one, his argument addresses both the Davis claim and its related ineffective assistance of counsel claim. See Doc. 32. Dean did not submit further briefing on any other issues.

When counsel abandons claims set out in an initial habeas petition, that abandonment constitutes waiver of the non-addressed claims. Harper v. Nix, 867 F.2d 455, 457 (8th Cir. 1989) (“[Defendant] contends that counsel's decision to abandon the claims set out in his initial federal habeas corpus petition should not constitute a waiver of these claims because counsel acted without his consent . . . . We disagree.”); see also Dantzler v. Sperfslage, 2019 WL 1460898, at *5 (N.D. Iowa, April 2, 2019) (claims raised in the initial petition but not subsequently briefed were waived); Braggs v. Bartruff,


2018 WL 11229134, at *4 (N.D. Iowa, May 23, 2018) (citing Harper). Therefore, I find Dean waived claims 3 through 7 because counsel chose not to address any of those claims in counsel's brief.

Even if counsel's suggestion that Dean would brief claim six himself was an attempt to prevent waiver, it would be unsuccessful. Defendants do not have a constitutional right to hybrid representation or the right to act as “co-counsel.” See United States v. Swinney, 970...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT