United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF, Senior District Judge.
Christopher Mallett (Mallett) has filed a Motion to Vacate under 28 U.S.C. § 2255. After initial review, I now deny the motion and dismiss it with prejudice.
Mallett claims that his excellent lawyer (Jessica Milburn) was ineffective during the jury trial and, perhaps, on appeal. From the files and records, it plainly appears that is not so. I next briefly explain why Mallett's claims fail.
A jury convicted Guy E. Allen and Mallett (who were sometimes referred to as "Pickle" and "Beans, " respectively) each of conspiring to distribute 280 grams or more of cocaine base (crack cocaine), in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Earlier, Terrelle L. Tyler pleaded guilty to the same charges.
At trial, ten witnesses, including police officers who had been operating undercover, testified about instances where Allen or Mallett sold crack cocaine, often by either delivering the drug to a certain address or by selling out of a customer's house or apartment. Several witnesses testified Allen, Mallett, and Tyler often sold crack cocaine together, either in pairs or as a group, and often cooperated in making sales.
Multiple witnesses testified that Allen, Mallett, and Tyler often distributed crack cocaine together from joint distribution locations. This was often done by using a customer's house or apartment (usually in exchange for drugs) as a temporary crack cocaine distribution center. When distributing together, Allen, Mallett, and Tyler took calls from customers on a communal cell phone and shared a scale used for measuring crack cocaine. The three took turns selling to customers and sometimes split individual sales such that a customer would have to purchase partly from one seller and partly from another.
Allen, Mallett, and Tyler also made deliveries. Customers called Allen, Mallett, or Tyler to arrange a crack cocaine purchase at a specific location, and one or more of the three sellers would arrive and sell the requested amount. Often, a customer would speak to one seller in arranging the transaction, but another of the three would deliver the drugs.
One witness saw Allen, Mallett, and Tyler together with $2, 500 worth of crack cocaine between them. Another witness saw each of these three possessing approximately fourteen grams of crack cocaine on multiple occasions: Allen more than ten times, Mallett about ten times, and Tyler about five times.
In summary, the evidence "strongly linked both Allen and Mallett in an active drug conspiracy...." United States v. Mallett, 751 F.3d 907, 917 (8th Cir. 2014).
The Strickland standard must be applied. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984) (announcing principles for evaluation of claims of ineffective assistance of counsel under the Sixth Amendment). In order to prevail on a claim that defense counsel rendered ineffective assistance of counsel under Strickland, the claimant must establish two things. He or she must establish (1) that "counsel's representation fell below an objective standard of reasonableness, '" and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Nguyen v. United States, 114 F.3d 699, 703-04 (8th Cir. 1997) (quoting Strickland, 466 U.S. at 688, 694).
An evidentiary hearing is unnecessary if the claimant makes an insufficient preliminary showing on either or both prongs or the record clearly contradicts the claimant's showing on either or both prongs. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995) (affirming denial of § 2255 motion without a hearing in the face of an ineffective-assistance-of-counsel claim; stating that no evidentiary hearing is required where "(1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact").
Insofar as appeals are concerned, the Court of Appeals "will apply a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Charboneau v. United States, 702 F.3d 1132, 1136-1137 (8th Cir. 2013) (quoting Strickland, 466 U.S. at 689). "Our review is particularly deferential when reviewing a claim that appellate counsel failed to raise an additional issue on direct appeal." Id. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal, " Jones v. Barnes, 463 U.S. 745, 751 (1983). Therefore, "absent contrary evidence, we ...