The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Memorandum Opinion and Order
Petitioner Fontaine Demmond Sherman was convicted of conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base. He was sentenced to 20 years imprisonment. His conviction and sentence were affirmed on appeal. United States v. Sherman, 440 F.3d 982 (8th Cir. 2006). Now before the Court is Sherman's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The government responded in opposition to the motion. For the reasons that follow, the Court finds that the motion should be denied.*fn1
Petitioner Sherman was charged in a superceding indictment entered on August 4, 2004, with one count of conspiracy to distribute and possess with intent to distribute more than 5 kilograms of cocaine and more than 50 grams of cocaine base, in violation of 21 U.S.C. § 846, and one count of knowingly and intentionally using a telephone to commit and facilitate the commission of a drug felony in violation of 21 U.S.C. § 843(b). On August 23, 2004, a jury convicted him of the drug conspiracy count but found him not guilty of use of a telephone to facilitate a drug felony. The jury was unable to unanimously agree on the drug quantity. The jury also found petitioner was not an organizer or leader.
The drug conspiracy carried a statutory mandatory sentence of not less than ten years or more than life imprisonment. However, because petitioner had a prior drug felony conviction, the United States filed a motion to enhance his sentence under 21 U.S.C. § 851. As a result, the mandatory sentence applicable to petitioner was not less than twenty years or more than life imprisonment. Petitioner was sentenced to the minimum term of imprisonment, twenty years.
Sherman filed an appeal following his conviction, challenging the sufficiency of the evidence to support his conspiracy conviction and the enhancement of his sentence based on a prior drug felony conviction. His conviction and sentence were affirmed on appeal. United States v. Sherman, 440 F.3d 982 (8th Cir. 2006). The Eighth Circuit denied petitioner's petition for rehearing and rehearing en banc. In the motion before the Court, Sherman asserts ineffective assistance of counsel, prosecutorial misconduct, and lack of jurisdiction.
1. Ineffective Assistance of Counsel
Petitioner's chief argument is that his counsel, Alvin Schay, was ineffective because there was no evidence to support the conviction. The Eighth Circuit opinion affirming Sherman's conviction and sentence holds there was sufficient evidence to support his conviction.
The issue before this Court is whether counsel was ineffective, not the sufficiency of the evidence.
To establish that he was deprived of effective assistance of counsel, Sherman must demonstrate first, that his counsel's performance was constitutionally deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). The court need not address both components if the plaintiff makes an insufficient showing on one of the prongs. Id. at 697.
When examining whether an attorney has failed to meet the Strickland standard, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Furthermore, the court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690. The correct inquiry is not whether counsel's decision was correct or wise, but whether it "was an unreasonable one which only an incompetent attorney would adopt" considering all the circumstances. Parton v. Wyrick, 704 F.2d 415, 417 (8th Cir. 1983).
The prejudice prong requires Sherman to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 (1984). "Prejudice, for purposes of an ineffective assistance of counsel claim, means that 'one's confidence in the outcome of the trial is undermined.'" United States v. Flynn, 87 F.3d 996, 1000-01 (8th Cir. 1996) (citations omitted).
Sherman argues Schay "should have pursued questioning of Witness Jason Shiver, as to his testimony before the grand jury."*fn2 Sherman claims counsel let "the fact that the indictment was based on Mr. Shiver's perjurious testimony before the grand jury . . . fall by the wayside" and thus was ineffective.*fn3 The trial transcript shows that Schay cross-examined Shiver about his knowledge of Sherman, ...