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United States v. Gaye

United States District Court, D. Nebraska

May 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTOINE GAYE, Defendant.

          MEMORANDUM AND ORDER

          Robert F. Rossiter, Jr. United States District Judge

         This matter is before the Court on defendant Antoine Gaye's (“Gaye”) Motion Pursuant to 28 U.S.C. § 2255 (Filing No. 52).[1] In an Order (“Order”) dated October 23, 2018 (Filing No. 53), the Court determined that part of Gaye's ineffective-assistance claim was potentially cognizable, warranting a response from the government. See 28 U.S.C. § 2255 Rule 4(b). The government has filed that response (Filing No. 57). The Court finds that Gaye's motion should be denied without a hearing for the reasons stated below.

         I. BACKGROUND

         The factual and procedural background of this case are set forth in the Order. Relevant to the present motion, [2] on June 20, 2016, Paul Antoniak (“Antoniak”), an employee of Gerber Auto Sales and former police officer, [3] repossessed a vehicle. In that vehicle, Antoniak discovered identification belonging to Gaye in the back of the driver's seat and a firearm under the driver's seat, which Antoniak alerted to law enforcement. Upon discovering that the vehicle had been repossessed, Gaye called Antoniak and informed him that he had “property” in the vehicle he wanted to retrieve. Gaye came to the location of the vehicle, looked under the driver's seat, became agitated, and said to Antoniak, “I had a legally registered firearm under the seat and I want it back.” Antoniak had previously attempted to repossess the vehicle on a prior occasion, but Gaye convinced him not to and made a payment on the vehicle later that day.

         At his plea proceeding on April 11, 2017, Gaye pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Court asked Gaye, while he was under oath, if his attorney had done everything he had asked her to do in the case, and Gaye stated that she had. The Court also asked Gaye whether he had any concerns or complaints about her representation, and Gaye stated that he did not. Gaye further affirmed that he was satisfied with his attorney's advice. Gaye now contends he is entitled to relief because his attorney failed him “during the critical plea . . . phase of the case.”

         According to Gaye, his attorney failed to properly conduct a pretrial investigation “including speaking with [Antoniak] who claimed to have recovered the firearm” from a vehicle he repossessed. Gaye believes that if his attorney had done so, she would have discovered Antoniak previously investigated Gaye “for an unrelated incident, and could have very well used his interests in a conflicted way.” Moreover, Gaye asserts his attorney convinced him he was guilty under a theory of constructive possession and told him “that even if he had no knowledge of the firearm, because he was driving the vehicle (which was not his), he is still liable.” Gaye alleges that if his attorney had informed him of the knowledge requirement, “there is a reasonable probability [he] would have rejected the plea and proceeded to trial.”

         II. DISCUSSION

         A. Standard

         Relief is warranted where a “sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. Amend. VI. Accordingly, ineffective assistance of counsel may result in the imposition of an unconstitutional sentence. See Bear Stops v. United States, 339 F.3d 777, 780-81 (8th Cir. 2003).

         Gaye faces a heavy burden in establishing ineffective assistance of counsel. He must demonstrate both that “(1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense.” Guzman-Ortiz v. United States, 849 F.3d 708, 713 (8th Cir. 2017). In other words, he must show that his attorney's representation “‘fell below an objective standard of reasonableness' and that he was prejudiced as a result.” Dat v. United States, 920 F.3d 1192, 1193 (8th Cir. 2019) (quoting Jae Lee v. United States, 582 U.S.___, ___, 137 S.Ct. 1958, 1964 (2017)).

         In challenging his guilty plea, Gaye must show there is a “reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Thompson v. United States, 872 F.3d 560, 567 (8th Cir. 2017) (quoting Jae Lee, 582 U.S. at___, 137 S.Ct. at 1964); see also United States v. Frausto, 754 F.3d 640, 643 (8th Cir. 2014) (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (quoting Cullen v. Pinholster, 563 U.S.___, ___, 131 S.Ct. 1388, 1403 (2011))). The Court should not disturb a plea solely based on “post hoc assertions from a defendant about how he would have pleaded but for his attorney's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences.” Thompson, 872 F.3d at 567 (quoting Jae Lee, 582 U.S. at___, 137 S.Ct. at 1967).

         Counsel has a duty to make reasonable investigations. See Strickland v. Washington, 466 U.S. 668, 691 (1984). A defendant may establish prejudice by showing that an investigation would have uncovered evidence that “would have caused counsel to change [her] recommendation as to the plea offer.” Witherspoon v. Purkett, 210 F.3d 901, 903 (8th Cir. 2000). This assessment turns on predicting “whether the evidence likely would have changed the outcome of trial.” Id. at 904 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

         B. Evidentiary Hearing

         An evidentiary hearing is generally required under § 2255(b) unless “(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.” Walker v. United States, 81 ...


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