United States District Court, W.D. Arkansas, Fort Smith Division
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE.
Court has received a report and recommendation (Doc. 38) from
United States Magistrate Judge Mark E. Ford. The Defendant
has filed objections. The Magistrate recommends that the
Court deny Defendant's motion to vacate. The Court has
conducted de novo review of those portions of the report and
recommendation to which Defendant has objected. 28 U.S.C.
to 28 U.S.C. § 2255(f), the Magistrate finds that
Defendant's motion to vacate is untimely and recommends
that it be dismissed with prejudice. Defendant objects that
the Magistrate incorrectly applied subsections (f)(2) and
(f)(4) to Defendant's motion, and that his motion is
timely under either of those provisions. A motion to vacate
is timely under § 2255(f)(2) if it is filed within one
year of “the date on which the impediment to making a
motion created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
governmental action.” A motion to vacate is timely
under § 2255(f)(4) if it is filed within one year of
“the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.” Defendant objects that his
motion is timely under § 2255(f)(2).
argues that he was detained in local holding facilities or
transfer centers for over a month following his sentencing,
and that upon his arrival at his permanent facility, he was
threatened and requested protective custody. He was placed in
the specialty housing unit, where he remained for a month
before being transferred to a separate facility. He was then
threatened at the new facility and placed in the specialty
housing unit. Following a determination by BOP that there was
no credible threat, he was returned to the general
population, assaulted, and then placed back in the specialty
housing unit until his transfer to yet another facility, USP
Marion, where he could be housed in general population
without incident. Defendant argues that during his detention
in the specialty housing units, his law library access was
curtailed both because limited computer access is given on a
first-come, first-served basis and because Defendant required
protection to visit the library. Defendant argues that his
1-year period should run from the point at which he arrived
at USP Marion on August 17, 2017.
cases, the absence of library access may be an impediment
under 28 U.S.C. § 2255(f)(2). Estremera v. United
States, 724 F.3d 773, 777 (7th Cir. 2013). The
determination depends on facts and often requires an
evidentiary hearing. Id. at 779. Because whether
Defendant's lack of access to a law library in this case
requires closer analysis of the facts, the report and
recommendation is rejected.
evidentiary hearing or further proceedings are necessary in
this case, however, because even if Defendant's motion to
vacate is timely, the facts alleged, if true, do not justify
relief. See Smith v. United States, 618 F.2d 507,
510 (8th Cir. 1980). Defendant alleges that he received
ineffective assistance of counsel from his appointed attorney
because his attorney advised him to take the offered plea
agreement rather than going to trial and because his
attorney, in communicating with the Government to see whether
they would oppose a motion for a psychological evaluation,
mentioned that an evaluation would be helpful to avoid issues
that might arise in a 28 U.S.C. § 2255 hearing.
defendant moving to have his sentence vacated for ineffective
assistance of trial counsel on the basis that the defendant
relied on trial counsel's bad advice to take a plea
bargain must show prejudice. Hill v. Lockhart, 474
U.S. 52, 59 (1985) (“In order to satisfy the
‘prejudice' requirement [of Strickland v.
Washington], the defendant must show that 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.”). Showing that there is a reasonable
probability that he would have insisted on going to trial
depends in large part on the defendant showing that the
outcome following trial would have been different. See
United States v. Frausto, 754 F.3d 640, 643 (8th Cir.
makes no such showing. He makes no claim of actual innocence.
He cites no evidence that might have cast reasonable doubt on
the Government's case. He merely argues that, since he
was effectively facing a life sentence whether he received
the mandatory minimum or the maximum sentence, whether or not
he took a plea agreement was immaterial and he might as well
have taken his chances at trial. This speculation is
insufficient to demonstrate prejudice.
Defendant cannot show prejudice flowing from trial
counsel's mention of § 2255 in asking the Government
to agree to a psychological evaluation. The mention shows
only that trial counsel was aware of his constitutional duty
to provide effective assistance of counsel to Defendant.
Furthermore, trial counsel's negotiation tactic was
successful, as the Government did not oppose Defendant's
motion for a psychological evaluation, and this Court
ultimately granted the motion.
Defendant cannot show prejudice caused by either of the
grounds he cites for his ineffective assistance of counsel
claims, he cannot meet his burden and his motion to vacate,
even if timely, must be denied. No. evidentiary hearing is
necessary. Because Defendant has not shown that jurists of
reason could disagree with this resolution, no certificate of
appealability should issue.
THEREFORE ORDERED that the report and recommendation (Doc.
38) is REJECTED.
FURTHER ORDERED that Defendant's motion to vacate (Doc.
38) is DENIED and his petition is DISMISSED WITH PREJUDICE.
No. certificate of appealability shall issue.
will be ...