Furnish v. U.S., 4:98CV147 JCH.
| Decision Date | 25 September 2000 |
| Docket Number | No. 4:98CV147 JCH.,4:98CV147 JCH. |
| Parties | Henrietta FURNISH, Movant, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
John J. Ware, Office of U.S. Attorney, St. Louis, MO, for Respondent.
This matter arises on Movant Henrietta Furnish's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, filed January 26, 1998. (Doc. No. 1). Respondent filed its response on March 9, 1998. (Doc. No. 6). Movant then filed an additional claim on August 31, 1998, to which Respondent replied on December 27, 1999. (Doc. Nos. 10, 14).
Movant was indicted, along with nine others, on one count of conspiracy to distribute, and to possess with the intent to distribute, more than one kilogram each of methamphetamine and heroin. United States v. Bryson, 110 F.3d 575, 578 (8th Cir.1997). Following a seven-day trial in 1995, a jury found Movant guilty. Id. On January 25, 1996, this Court sentenced Movant to 300 months imprisonment. (§ 2255 Motion, P. 2). Movant's conviction was affirmed on appeal. United States v. Bryson, 110 F.3d at 585-86.
In her initial § 2255 motion, filed January 26, 1998, Movant raises the following claim for relief:
(1) That she received ineffective assistance of appellate counsel when counsel, acting under a conflict of interest1, failed to raise the following claims on appeal:
(A) That the quantity of drugs attributed to Movant was incorrect;
(B) That the four point enhancement Movant received for playing a leadership role in the offense was applied erroneously;
(C) That the two point enhancement Movant received for possessing a firearm in connection with the offense was applied erroneously;
(D) That false witness testimony was used to convict Movant; and
(E) That Movant was sentenced incorrectly, as separate conspiracies existed to distribute methamphetamine and heroin, and Movant participated only in the methamphetamine conspiracy.
(§ 2255 Motion, attached PP. 2-6). On August 31, 1998, Movant was granted leave to file a supplement to her § 2255 motion, in which she added the following claim: (2) That her trial attorney's representation was deficient for failing to object to the testimony of witnesses who had plea agreements with the Government, on the ground that such agreements violated 18 U.S.C. § 201(c)(2). (Doc. No. 10).
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief on the ground that "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 is otherwise subject to collateral attack." 28 U.S.C. § 2255. Claims based on a federal statute or rule, rather than on a specific constitutional guarantee, can be raised "on collateral review only if the alleged error constituted a `fundamental defect which inherently results in a complete miscarriage of justice.'" Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994) (quoting Hill v. United States, 368 U.S 424, 434 n. 10, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).2
The Court must hold an evidentiary hearing to consider claims in a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir.1994) (citing 28 U.S.C. § 2255). Thus, a movant is entitled to an evidentiary hearing "`when the facts alleged, if true, would entitle [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)). The Court may dismiss a claim "`without an evidentiary hearing 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.
It is well-settled that "[c]laims which were raised and decided on direct appeal cannot be relitigated on motion to vacate pursuant to 28 U.S.C. § 2255."3 Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992).4 See also, United States v. Sanders, 723 F.2d 34 (8th Cir.1983); United States v. Shabazz, 657 F.2d 189 (1981) (); Wesley v. United States, 927 F.Supp. 1245, 1248 (E.D.Mo.1996); Shaw v. United States, 812 F.Supp. 154, 157 (D.S.D.1993). Courts recognize an exception to this rule, however, where there has been "an intervening change in the applicable law." Sanders, 723 F.2d at 36 (citing United States v. Little, 608 F.2d 296, 301 (8th Cir.1979)).
In Ground 1(E) of her § 2255 motion, Movant alleges that she was denied effective assistance of counsel on appeal, as her attorney failed to assert that she was sentenced incorrectly due to the existence of separate conspiracies to distribute methamphetamine and heroin. (§ 2255 Motion, attached P. 5). Movant's attorney raised this issue on direct appeal, however, and the Eighth Circuit Court of Appeals rejected the claim. United States v. Bryson, 110 F.3d at 585-86. Movant points to no intervening change in the law since the Eighth Circuit decision, and so Ground 1(E) must be denied. See Dall, 957 F.2d at 572; Sanders, 723 F.2d at 36.
If a claim could have been raised on direct appeal, but was not, it cannot be raised in a § 2255 motion unless Movant can show both (1) a "cause" that excuses the default, and (2) "actual prejudice" resulting from the errors of which she complains. See United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Matthews v. United States, 114 F.3d 112, 113 (8th Cir.1997). If Movant is unable to show "cause" and "actual prejudice," she must make a "substantial claim that constitutional error has caused the conviction of an innocent person...." Schlup v. Delo, 513 U.S. 298, 321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
Although Movant's claims of ineffective assistance of trial counsel, Ground 2, and ineffective assistance of appellate counsel, Ground 1(A)-(D), were not raised on direct appeal, they are not subject to procedural default because they could not have been raised on direct appeal. An ineffective assistance of trial counsel claim "is usually not cognizable on direct appeal `because facts outside the record generally need to be developed to resolve the claim.'" United States v. Jones, 121 F.3d 369, 370 (8th Cir.1997) (quoting United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.1996)). Thus, it is well-settled that an ineffective assistance of counsel claim is not cognizable on direct appeal if the issue has not been previously examined by the trial court. See e.g., Jones, 121 F.3d at 370 (citing United States v. Holy Bear, 624 F.2d 853, 856 (8th Cir.1980)); United States v. Williams, 897 F.2d 1430, 1434 (8th Cir.1990) ( ); United States v. Long, 857 F.2d 436, 448 (8th Cir.1988) (Bowman, J., concurring) (). Because this Court did not examine Movant's ineffective assistance of trial counsel claim in any trial or post-trial proceeding, the claim was not cognizable on direct appeal. Movant's ineffective assistance of trial counsel claim thus is not procedurally barred, and may be decided by the Court in this § 2255 motion. Furthermore, with respect to Movant's ineffective assistance of appellate counsel claims, they could not have been raised on direct appeal because the facts upon which such claims are based were still accruing.
In Ground 2 of her § 2255 motion, Movant claims that she was denied effective assistance of trial counsel. (Doc. No. 10). In order to prevail on an ineffective assistance of counsel claim, Movant must show that her attorney's performance was "deficient," and that the deficient performance was "prejudicial." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 104 S.Ct. 2052. To overcome this presumption, Movant must prove that, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.
Even if Movant satisfies the performance component of the analysis, she is not entitled to relief unless she can prove sufficient prejudice. Id. at 694, 104 S.Ct. 2052. To do so, Movant must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. The Court is not required to "address both components of the inquiry if [Movant] makes an insufficient showing on one [component]." Id. at 697, 104 S.Ct. 2052.
As stated above, in Ground 2 of her § 2255 motion Movant alleges that her trial attorney was deficient for failing to object to the testimony of witnesses who had plea agreements with the Government, on the ground that such agreements violated 18 U.S.C. § 201(c)(2). (Doc. No. 10). "Section 201(c)(2) is a criminal statute and makes it illegal for `whoever' to give anything of value to another for testimony under oath...
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