O'Neil v. United States

• Decision Date: 20 July 2020
• Docket Number: No. 19-1422,19-1422
• Citation: 966 F.3d 764
• Parties: Damon O’NEIL, Petitioner - Appellant v. UNITED STATES of America, Respondent - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

966 F.3d 764

Damon O’NEIL, Petitioner - Appellant

v.UNITED STATES of America, Respondent - Appellee

No. 19-1422

United States Court of Appeals, Eighth Circuit.

Submitted: January 16, 2020

Filed: July 20, 2020

Andrew J. Dunn, PARRISH & KRUIDENIER, Des Moines, IA, for Petitioner - Appellant.

Damon O'Neil, Pro Se.

Andrew H. Kahl, Ryan W. Leemkuil, Richard D. Westphal, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Des Moines, IA, for Respondent - Appellee.

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

SMITH, Chief Judge.

A jury convicted Damon O’Neil of conspiracy to distribute cocaine. See 21 U.S.C. §§ 841(b)(1)(A), 841(b)(1)(B), 846, 851. We affirmed that conviction.¹ In this appeal, he asks us to vacate, set aside, or correct his sentence because his counsel was ineffective. See 28 U.S.C. § 2255. We conclude his counsel was not ineffective and affirm the district court.²

I. Background

In January 2011, a confidential informant told law enforcement that he knew of a female named "Aaren" and a man known as "D" selling drugs out of a specific apartment. The apartment’s utilities were registered to Melissa Taylor. The officers set up a controlled buy and had the confidential informant purchase drugs from Aaren. The officers observed a female come from behind the apartment building, make the transaction, and return to the specified apartment. The confidential informant confirmed that the seller was Aaren.

A detective then applied for a search warrant. In the application’s affidavit, he substituted Taylor’s name for Aaren’s. The detective testified that he did so because he did not have a last name for Aaren and assumed Taylor was using a fake name for drug sales. In reality, the two names identified different women. As a result of the switch, the affidavit stated that the confidential informant told police that Taylor operated the distribution center at the apartment and that Taylor sold the drugs during the controlled buy.

A magistrate judge issued a search warrant for the apartment, which authorized the search of Taylor’s phones. During its execution, officers searched two phones that actually belonged to O’Neil. Officers obtained these phones’ numbers by calling dispatch, which has caller ID, and received the owner’s name and cell phone records from the service provider. The officers also found cocaine base, cash, and a digital scale in the apartment.

O’Neil, who was in the apartment at the time of the search, was arrested and later questioned by police. An officer testified that O’Neil admitted he was a crack dealer and described his operation in detail. At trial, O’Neil testified that he never confessed. O’Neil now claims that he did not waive his Miranda rights and that the police questioned him after he asked for an attorney.

O’Neil was convicted of conspiracy to distribute cocaine. After his initial sentence was vacated in light of Alleyne , we affirmed the 180-month sentence he received on remand. See O’Neil , 595 F. App'x at 665–66. O’Neil then filed this § 2255 habeas petition. See 28 U.S.C. § 2255. He raised seven ineffective-assistance-of-counsel claims.

First, O’Neil asserted that his counsel should have requested a Franks hearing³ because the affiant switched Aaren’s name with Taylor’s. The district court found that the switch constituted a recklessly made false statement. But even with the identifying information omitted, the court found that the remaining allegations—which described the participant of a controlled buy leaving the apartment area, making the purchase, and returning to the specified apartment—created probable cause that criminal evidence was in the apartment. Therefore, the court concluded that any request for a Franks hearing would have been meritless, and thus O’Neil’s trial counsel was not ineffective.

Second, O’Neil argued that his counsel erred by not contesting the validity of the search warrant. First, he pointed out the magistrate judge’s failure to indicate why he found the informant reliable. The court determined that such technical errors could not render the warrant invalid. Alternatively, O’Neil claimed that the single controlled buy described in the affidavit was not enough to establish probable cause. The court disagreed. Because both arguments lacked merit, the court held that O’Neil’s trial counsel was not ineffective for not challenging the warrant.

Third, O’Neil claimed that his counsel provided ineffective assistance by failing to file a motion to suppress evidence related to his cell phones. The district court disagreed because Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), which served as the basis of O’Neil’s claim, did not apply retroactively to the 2011 search. It also noted that the warrant authorized the seizure of Taylor’s cell phones, and the officers who seized O’Neil’s phones could have reasonably believed they belonged to Taylor. Finally, the court found that O’Neil had not identified any prejudicial evidence obtained via the search. Therefore, that claim failed as well.

Fourth, O’Neil averred that his counsel was ineffective for not filing a motion to suppress his confession. The district court found that trial counsel’s decision not to challenge that evidence was reasonable because the police read O’Neil his Miranda rights twice. It also noted that O’Neil did not show prejudice because other evidence, including co-conspirator testimony, established O’Neil’s involvement in the conspiracy.

Fifth, O’Neil argued that his counsel was ineffective because he failed to: (1) meet with O’Neil frequently, (2) adequately investigate the case, and (3) call certain unidentified witnesses. The district court found that O’Neil’s counsel’s trial strategy was not ineffective. The court noted that counsel focused on challenging the drug quantity. The jury appeared to adopt those arguments, as it found that O’Neil was responsible for a lesser amount than the government advocated, which resulted in a lower sentence. The court also rejected O’Neil’s witness argument because he failed to provide the witnesses’ names and the substance of their potential testimonies.

Sixth, O’Neil maintained that effective counsel would have challenged his career-offender status. O’Neil was previously convicted for an Illinois controlled-substance offense. See 720 Ill. Comp. Stat. § 570/405.1(a). The relevant Illinois statute applies to "offense[s] set forth in Section 401, Section 402, or Section 407." Id. The court agreed with O’Neil that Section 402 was likely overbroad. But applying the modified categorical approach, it found that O’Neil’s conviction arose out of Section 401, which was not. Therefore, any objection would have been meritless. Further, the court noted that the Guidelines range would have been the same regardless of his career-offender status, so any error was not prejudicial.

Lastly, O’Neil asserted that his counsel was ineffective because he failed to request a specific fact finding at his resentencing. O’Neil received a two-level sentence enhancement because he obstructed justice. O’Neil’s counsel objected to some facts in the presentence investigation report (PSR) that indicated he intimidated a witness. However, the allegation was also supported by unobjected-to facts. The sentencing court applied the enhancement without specifying the facts it was relying on. O’Neil claims he was prejudiced because the Bureau of Prisons (BOP) found that the sentencing court adopted the objected-to facts in the PSR and used those facts to deny him early release. The district court found that this argument was outside of the scope of its review: The enhancement was upheld on appeal and a ruling that O’Neil’s counsel was ineffective would require displacing that holding. Further, other evidence supported the enhancement and consideration of the BOP decision was outside of the court’s authority under 28 U.S.C. § 2255.

In sum, the district court found that O’Neil failed to show that his trial counsel was ineffective. The district court granted O’Neil a certificate of appealability on all of his claims except those regarding the trial-strategy and career-offender issues.⁴

II. Discussion

O’Neil reasserts all of his ineffective-assistance-of-counsel claims. "On appeal, we review the district court’s factual findings for clear error and the legal question whether those findings amount to ineffective assistance de novo." Long v. United States , 875 F.3d 411, 413 (8th Cir. 2017) (cleaned up). Still, "[o]ur review is highly deferential, with a strong presumption that counsel’s performance was reasonable." Love v. United States , 949 F.3d 406, 409 (8th Cir. 2020).

"The standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L.E.2d 674 (1984), provides the framework for evaluating [O’Neil’s] ineffective-assistance-of-counsel claim." Anderson v. United States , 762 F.3d 787, 792 (8th Cir. 2014). O’Neil "must show that his counsel’s performance was deficient and that [he] suffered prejudice as a result" to prove a violation of his Sixth Amendment rights. Id .

"Deficient performance is that which falls below the range of competence demanded of attorneys in criminal cases." Bass v. United States , 655 F.3d 758, 760 (8th Cir. 2011) (internal quotation omitted).

" Strickland sets a ‘high bar’ for unreasonable assistance." Love , 949 F.3d at 410 (quoting Buck v. Davis , ––– U.S. ––––, 137 S. Ct. 759, 775, 197 L.Ed.2d 1 (2017) ). Only a performance "outside the wide range of reasonable professional assistance" is constitutionally deficient. Id. (internal quotation omitted). "We make every effort to eliminate the distorting effects of hindsight and consider performance from counsel’s perspective at the time." Id. (internal quotation omitted).

"Prejudice requires the movant to establish ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a...