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United States v. Holmes

United States District Court, D. Nebraska

October 8, 2019




         This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 173) filed by the defendant, Israel Elias Holmes. The motion was timely filed less than 1 year after the defendant's conviction became final. See § 2255(f). The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:

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.

         A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show the movant is entitled to no relief. § 2255(b); Dat v. United States, 920 F.3d 1192, 1194 (8th Cir. 2019). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant 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. Ford v. United States, 917 F.3d 1015, 1026 (8th Cir. 2019).


         The defendant was charged in 2017 with one count of conspiring to commit Hobbs Act robbery and one count of bank robbery. Filing 1. Ultimately, he pled guilty to the conspiracy count pursuant to a plea agreement providing for an offense level of at least 29, with the parties free to present evidence regarding a role adjustment. Filing 80 at 5-6. The parties had no agreement regarding the defendant's criminal history. Filing 80 at 7.

         The presentence report did not include a role adjustment; however, it did assess a 4-level increase in the offense level based on a multiple count adjustment. Filing 139 at 17. So, the presentence report calculated a combined adjusted offense level of 31, which was reduced to 28 by acceptance of responsibility. Filing 139 at 17. The defendant's counsel presented an objection to the multiple count adjustment to the probation officer, filing 139 at 32, but did not object to the Court, filing 119. The Court adopted the presentence report and sentenced the defendant based on a total offense level of 28 and a criminal history category III, resulting in a guidelines sentencing range of 97-121 months' imprisonment. Filing 142 at 1. The Court sentenced the defendant to 120 months' imprisonment. Filing 141 at 2.


         The defendant's sole claim is ineffective assistance of counsel. Filing 173 at 4. The defendant's claim is premised on a factual narrative that can be generally characterized as raising two issues: alleged ineffectiveness in negotiating the plea agreement, and alleged ineffectiveness in reviewing the presentence report. Filing 173 at 7-10. Neither argument has merit.

         To establish a claim of ineffective assistance of counsel, the defendant must show that his attorney's performance was deficient and that this prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance can be shown by demonstrating that counsel's performance fell below an objective standard of reasonableness. Id. at 688. However, the Court's scrutiny of counsel's performance is highly deferential, because the Court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689.

         To satisfy the prejudice prong of Strickland, the defendant must show that counsel's error actually had an adverse effect on the defense. Gregg v. United States, 683 F.3d 941, 944 (8th Cir. 2012). The defendant must do more than show that the errors had some conceivable effect on the outcome of the proceeding. Id. Rather, the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A "reasonable probability" is less than "more likely than not," but it is more than a possibility; it must be sufficient to undermine confidence in the outcome of the case. Paul v. United States, 534 F.3d 832, 837 (8th Cir. 2008).

         The defendant's first argument is apparently that his counsel should have negotiated a more favorable plea agreement. See filing 173 at 7-8. The defendant contends that he rejected the government's initial plea offer, and asked for a binding Fed. R. Crim. P. 11(c)(1)(C) plea agreement. Filing 173 at 7. He was offered a binding agreement based on a criminal history category III and offense level 30. Filing 173 at 7-8. The Court infers that he rejected that offer. See filing 173 at 8. Instead, counsel brought him another non-binding plea offer, which is the one he accepted. Filing 173 at 8. The defendant contends, however, that he "was on suicide watch at the time" and that counsel was aware of that and "took advantage of [his] mental state and did not take the reasonable steps to investigate the issues concerning [his] background and history to figure out his accurate guideline range. . . ." Filing 173 at 8.

         But in the plea negotiation context, in order to establish prejudice, a petitioner must show that the outcome of the plea process would have been different had competent counsel represented him during the plea process. Barnes v. Hammer, 765 F.3d 810, 814 (8th Cir. 2014); see Lafler v. Cooper, 566 U.S. 156, 163 (2012). The defendant cannot make that showing, because he does not allege anything establishing that a more favorable plea agreement could have been successfully negotiated. See Ybarra v. United States, No. 4:12-cr-268, 2019 WL 3877968, at *3 (W.D. Mo. Aug. 16, 2019); Sturdivant v. United States, No. 3:12-cv-3085, 2016 WL 1298127, at *11 (N.D. Iowa Mar. 31, 2016); see also Plunk v. Hobbs, 766 F.3d 760, 765 (8th Cir. 2014); Ramirez v. United States, 751 F.3d 604, 608 (8th Cir. 2014). In the absence of any allegations suggesting the actual availability of a better deal, there is no basis to find that the defendant was prejudiced by the deal he accepted-nor, for that matter, is it possible to find that counsel performed deficiently in failing to negotiate a wholly speculative plea agreement.

         It's also noteworthy that despite his intimations regarding his mental health, the defendant doesn't actually assert that he wouldn't have pled guilty except for counsel's allegedly deficient performance. SeeMeza-Lopez v. UnitedStates, 929 F.3d 1041, 1044-45 (8th Cir. 2019). Nor do the bare allegations that the defendant was "on suicide watch" and that counsel knew that establish that the defendant was incompetent to proceed, much less that counsel should ...

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