United States District Court, D. Nebraska
MEMORANDUM AND ORDER
matter is before the Court on defendant's motion to
vacate under 28 U.S.C. § 2255. Filing No. 162.
The Court initially reviewed this case, and ordered the
government to file an answer addressing defendant's two
ineffective counsel claims. Filing No. 163. The
government filed its answer. Filing No. 167.
government filed an Indictment charging Schropp with six
counts. A jury found defendant guilty of Counts l-VI
respectively, one count of arson of a building used in
interstate commerce, one count of mail fraud, three counts of
wire fraud, and one count of use of fire to commit a federal
felony. The Court sentenced defendant to
imprisonment for seventy (70) months on Count I, seventy (70)
months on Count II, seventy (70) months on Count III, seventy
(70) months on Count IV, and seventy (70) months on Count V,
said terms to run concurrently; and one hundred twenty (120)
months on Count VI, said term to run consecutive to the term
imposed on Counts l-V. Filing No. 124. The Eighth
Circuit affirmed defendant's conviction and sentence.
Filing No. 159.
§ 2255 motion, the defendant alleges his counsel was
ineffective for the following reasons: (1) for counsel's
failure to argue a double jeopardy claim appropriately; (2)
for counsel's failure to raise judicial error that
created a dichotomy between the oral and written
pronouncement of his sentencing.
assistance of counsel issues are appropriately raised in
collateral proceedings. United States v. Hughes, 330
F.3d 1068, 1069 (8th Cir. 2003). "The right to counsel
is a fundamental right of criminal defendants; it assures the
fairness, and thus the legitimacy, of our adversary
process." Kimmelman v. Morrison, 477 U.S. 365,
374 (1986). The right to counsel includes the right to
reasonably effective counsel. Strickland v.
Washington, 466 U.S. 668, 694 (1984). The defendant must
show that there is a reasonable probability that the result
of his proceedings would have been different if his lawyer
had competently performed. King v. United States,
595 F.3d 844, 852 (8th Cir. 2010). To establish prejudice
under Strickland, a petitioner must
"demonstrate that there is a reasonable probability
that, but for counsel's claimed unprofessional errors,
the result of the proceeding would have been different."
Christenson v. Ault, 598 F.3d 990, 996 (8th Cir.,
first claims that he has incurred multiple punishments for
the same act or transaction. Schropp claims that Count
and Count VI are based on the same act or transaction
and impose multiple punishments for the same criminal act,
violating the Fifth Amendment's Double Jeopardy Clause.
The double jeopardy clause is violated in a single proceeding
only where multiple punishments are imposed for the same
crime contrary to the legislature's intent. Jones v.
Thomas, 491 U.S. 376, 380-81 (1989).
order to determine whether Count I and Count VI are the same
offense, the Court looks to the test employed in
Blockburger v. United States, 284 U.S. 299, 304
(1932). Here, each of the offenses requires proof of a
different element. Schropp violated both sections of the
statute by a single act; therefore, two offenses were
committed. See Id.
language of the elements within the statutes and the jury
instructions demonstrates the independent nature of the two
violations and defense counsel is not required to assert
arguments that lack merit. Filing No. 96 and
Filing No. 97. The Court finds counsel's failure
to object to charges for double jeopardy grounds was not
deficient because there was no violation of double jeopardy
involved. The evidence supports a conviction for both the 18
U.S.C. § 844(h) violation and the 18 U.S.C. §
844(i) violation. Therefore, Schropp does not have a valid
argument on this point. The defendant's claim that the 18
U.S.C. § 844(i) conviction is a lesser or included crime
within 18 U.S.C. § 844(h) is denied. Defendant received
convictions and sentencing on two separate crimes because the
elements of both Count I and Count VI are independent.
Consequently, there is no ineffective assistance of counsel
as to the double jeopardy claim.
also contends that both trial and appellate counsel rendered
deficient performance by failing to raise judicial error that
created a dichotomy between oral and written pronouncement of
his sentencing. Within this claim, he challenges language
used in the written order regarding restitution.
the 28 U.S.C. § 2255 "cannot be utilized by a
federal prisoner who challenges only the restitution potion
of his sentence." United States v. Bernard, 351
F.3d 360-61 (8th Cir. 2003). The Court recognizes that the
"the relief [Schropp] request[ed] does not qualify as a
'right to be released,' as dictated by 28 U.S.C.
§ 2255." Id. at 361. However, the present
defendant is not challenging the substance of the
restitution, merely the judicial error in the language of the
written and oral pronouncements of the conditions of his
restitution. The defendant is entitled to review of this
ineffective counsel claim. Where there is discrepancy between
a written and oral order, a petitioner is entitled to the
enforcement of the oral pronouncement of the order.
Johnson v. Mabry, 602 F.2d 167, 170 (8th Cir. 1979).
argues that the restitution payments were "to start 30
days following his discharge from incarceration."
Filing No. 132, Sentencing Transcript. While this is
true, the Court also stated in the oral pronouncement of
sentencing that, "This [order] does not affect the
government's ability to levy against other assets that
the defendant might have with respect to restitution."
Id. The judgment and commitment order does not
conflict with the oral sentencing order because the Court
held that the oral order does not affect the government's
ability to levy the defendant's other assets.
Consequently, there is no ineffective assistance of counsel
claim in this regard. The Court holds that the
defendant's claims are without merit and are dismissed.
Accordingly, THEREFORE IT IS ORDERED THAT:
defendant's § 2255 motion, Filing No. 162,
separate judgment will be entered in accordance with this
Memorandum and Order.