Gater v. United States
| Decision Date | 08 August 2018 |
| Docket Number | Case No. 1:18CV00038 SNLJ |
| Parties | JERRY L. GATER, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Jerry L. Gater, a person in federal custody. On October 15, 2015, Gater was found guilty of the offense of Possession with Intent to Distribute Cocaine Base and, on August 17, 2015, this Court sentenced Gater to the Bureau of Prisons for a term of 146 months, a sentence within the sentencing guideline range. Gater's § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.
Gater was indicted by a grand jury on April 16, 2015, and charged with possessing with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). (DCD 2)
Gater requested and was granted permission to proceed pro se. (DCD 25, 30)
Gater filed several pretrial motions, including a Motion Requesting Suppression of Evidence on June 17, 2015. (DCD 26) Gater also filed two supplemental motions relative to suppression. (DCD 33, 35) In his Motion to Suppress Evidence, Gater made several arguments to suppress the evidence seized pursuant to the search of his residence. One of those arguments was what Gater referred to as a "reverse Franks claim." He claimed that Officer Sullivan omitted information from his affidavit stating that he did not follow the procedures outlined in the Sikeston Department of Public Safety's policy on informants and that the second CS (Carter) is an abuser of various drugs, suffers from mental illness, and is a prostitute. (DCD 57, R&R, p. 22) Gater argued that, had this information been included in the affidavit, it would have lacked probable cause for the issuance of a search warrant. (DCD 26, p. 5)
After two hearings on the motions, a Report and Recommendation was issued by Magistrate Judge Abbie Crites-Leoni. Therein, Judge Crites-Leoni construed Gater's arguments as allegations of material omissions. (DCD 57, R&R, p. 22) The Court denied Gater's Motions, including his Motion to Suppress Evidence. (DCD 57, R&R) With respect to the need for a Franks hearing, Judge Crites-Leoni found:
(DCD 57, p. 23-24, quotation omitted). This Court issued an Order on September 23, 2015, sustaining and adopting Judge Crites-Leoni's Report and Recommendation. (DCD 61)
On October 14 and 15, 2015, the case against Gater was tried before a jury, which convicted him of possessing with intent to distribute cocaine base. (DCD 76-77)
The Presentence Report (PSR) provided that Gater was responsible for at least 122 grams of cocaine base. His resulting Base Offense Level was 26, pursuant to USSG § 2D1.1(c)(7), because the amount of cocaine base for which he was responsible, including relevant conduct, was more than 112 grams but less than 196 grams. (PSR ¶15) The PSR recommended a two-level enhancement for the specific offense characteristic of maintaining premises for the purpose of manufacturing or distributing a controlled substance pursuant to USSG § 2d1.1(b)(12). (PSR ¶16) The PSR also recommended a two-level enhancement for Obstruction of Justice pursuant to USSG § 3C1.1. (PSR ¶19)
The PSR recommended Gater's Total Offense Level to be 30. (PSR ¶23) Gater criminal history score was 12, which established a criminal history category of V. (PSR &42). Based on a total offense level of 30 and a criminal history category of V, Gater's guideline imprisonment range was 151 to 188 months. (PSR ¶72) Gater filed several objections to his presentence report. (Doc. 86)
E. SENTENCING HEARING
At the sentencing hearing, the Government provided testimony and additional proof regarding Gater's responsibility for 122 grams of cocaine base. The Government also conceded the two-level enhancement for maintaining premises for the purpose of manufacturing or distributing a controlled substance pursuant to USSG § 2d1.1(b)(12). (S. Tr. 52-53) Other than that concession, this Court adopted the factual findings of the Presentence Investigation Report (PSR), and determined that the total offense level was 28, and Gater's criminal history category was V. The resulting guideline range was 130 months to 162 months imprisonment, following by a supervised release period of six years. (S. Tr. 53-54) This Court imposed a sentence of 146 months of imprisonment, to be followed by a six-year term of supervised release. (S. Tr. 61)
Gater appealed his conviction, based on this Court's denial of his motion to suppress evidence seized at his residence during the execution of a search warrant. Gater's conviction was affirmed by the Eighth Circuit on August 17, 2017. United States v. Gater, 868 F.3d 657 (8th Cir. 2017), cert. denied, 138 S. Ct. 751 (2018).
Gater argued on appeal that the district court erred "when it denied his request for a hearing on his claim that police officers secured a search warrant by omitting material information from the affidavit submitted to the issuing judge." Id. at 658. The Eighth Circuit concluded that Gater was not entitled to a hearing and affirmed. Id. at 660.
On February 16, 2018, Gater timely filed a Motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, alleging four reasons why he was denied effective assistance of counsel.
1. In his first allegation, Gater alleges that his appellate counsel was ineffective because he "failed to argue on direct appeal that Movant had been denied his right to self-representation during voir dire proceedings." (2255 Mot. Memo p. i (9 of 38)). Gater is contesting his standby counsel, Jacob Zimmerman, not opposing venireperson McGee being struck for cause. Id.
2. In his second allegation, Gater alleges that his appellate counsel was ineffective for failing to argue on appeal that there was insufficient, reliable evidence to support this Court's finding that Gater was accountable for 122 grams of cocaine base. (2255 Mot. Memo p. v (13 of 38)).
3. In his third allegation, Gater alleges that this Court committed "procedural error in calculating drug amount attributable to movant." (2255 Mot. Memo p. x (18 of 38)).
4. In his fourth allegation, Gater alleges that his appellate counsel was ineffective in failing to "fully develop the claims although he had a mountain of information to do so" relative to his claim that he should have been "granted a Franks hearing because the affiant had omitted information from his affidavit that was relevant to the finding of probable cause." (2255 Mot. Memo p. xvi (24 of 38)).
5. For his fifth allegation, Gater asserts, in a Supplement, that his appellate counsel was ineffective in failing to contest on appeal the Government filing an Information pursuant to 21 U.S.C. § 851, and also using the convictions to increase his criminal history category to V, as "impermissible double counting." (2255 Mot. Memo Supp. (Doc. 3-1) p. 3 of 5).
28 U.S.C. § 2255 provides in pertinent part:
Unless the motion and the files and records of the case conclusively show that the prisoner is not entitled to relief, the court shall . . . grant a prompt hearing thereon.
Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Court states:
The motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits in the prior proceedings in the case that the Petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the Petitioner to be notified.
When a petition is brought under Section 2255, the petitioner bears the burden of establishing the need for an evidentiary hearing. Section 2255 provides a remedy for jurisdictional and constitutional errors. A defendant may seek relief on grounds that the sentence was imposed in violation of the Constitution or laws of the United States, the court lacked jurisdiction to impose a sentence, the sentence exceeded the maximum authorized by law, or the sentence is otherwise subject to collateral attack. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011), citing 28 U.S.C.A. § 2255(a).
In determining whether petitioner is entitled to an evidentiary hearing the court must consider "[a] petitioner's allegations ... as true and a hearing should be held unless they are contradicted by the record, inherently incredible, merely conclusions, or would not entitle the petitioner to relief." Garcia v. United States, 679 F.3d 1013, 1014 (8th Cir. 2012), citing ...
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