United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE.
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.
§ 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).
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.
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.
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.
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.
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).
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.
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.
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 ...