United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Defendant's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (§ 2255 Motion),
ECF No. 120.
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires initial review of a
§ 2255 motion, and describes the initial review process:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
28, 2015, following a jury trial, the Defendant Quantal Blake
was found guilty of three counts of bank robbery. He was
sentenced on February 9, 2016, to terms of 210 months, 210
months, and life imprisonment, to run concurrently, and five
years of supervised release on each count, also to run
concurrently. ECF No. 88. Restitution in the amount of $31,
375.00 and a $300 special assessment were also imposed. The
Defendant appealed, and his conviction and sentence were
affirmed by the U.S. Court of Appeals for the Eighth Circuit
on June 5, 2017. He filed a petition for writ of certiorari
with the United States Supreme Court, and that petition was
denied on October 2, 2017.
the Defendant's first Motion Under 28 U.S.C. § 2255,
and it is timely filed. The Defendant asserts that this Court
“found that defendant failed to prove by clear and
convincing evidence that a firearm was not involve[d] in the
first WestRoads bank robbery” and that such
determination should have been made by a jury, based on proof
beyond a reasonable doubt. § 2255 Motion, ECF No. 120 at
Page ID #972. He also asserts that his counsel was
ineffective for failing to raise these issues during trial,
sentencing, and on appeal.
establish ineffective assistance of counsel, Cabrera must
satisfy both prongs of the test articulated by the United
States Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984). The performance prong requires a showing
that counsel performed outside the wide range of reasonable
professional assistance and made errors so serious that
counsel failed to function as the kind of counsel guaranteed
by the Sixth Amendment. Id. at 687-89. The prejudice
prong requires a movant to demonstrate that seriously
deficient performance of counsel prejudiced the defense.
Id. at 687. “To establish prejudice, the
defendant must demonstrate a reasonable probability that the
result of the proceeding would have been different, but for
counsel's deficiency.” United States v.
Luke, 686 F.3d 600, 604 (8th Cir. 2012).
record clearly shows that Defendant's counsel raised on
appeal the precise issues the Defendant presents in his
§ 2255 Motion, and the Court of Appeals addressed each
argument thoroughly, concluding that this Court committed no
error in its application of 18 U.S.C. § 3559(c)(3)(A).
See United States v. Quantal Blake, 858 F.3d 1134,
1136-37 (8th Cir. 2017). Accordingly, the Defendant has not
demonstrated that his counsel “performed outside the
wide range of reasonable professional assistance and made
errors so serious that counsel failed to function as the kind
of counsel guaranteed by the Sixth Amendment.”
Strickland, 466 U.S. at 687-89. Nor has he
demonstrated that “seriously deficient performance of
counsel prejudiced the defense.” Id. at 687.
OF APPEALIBIITY DENIED
11(a) of the Rules Governing Section 2255 Proceedings for the
United States District Courts also requires the Court to
“issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.”
Pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(“AEDPA”), the right to appeal the denial of a
§ 2255 motion is governed by the certificate of
appealability requirements of 28 U.S.C. § 2253(c). 28
U.S.C. § 2253(c)(2) provides that a certificate of
appealability may issue only if the applicant has made a
substantial showing of the denial of a constitutional right:
(c)(1) Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the ...