United States District Court, W.D. Arkansas, Harrison Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
the Court is the Defendant's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody filed June 4, 2018. (ECF No. 282).
The United States filed its Response on July 24, 2018. (ECF
No. 300). Despite obtaining leave and an extension of time to
file a reply (ECF No. 303), the Defendant has not filed a
reply. The matter is ready for Report and Recommendation.
26, 2017, a multi-party, multi-count Indictment was issued
charging the Defendant, Julia Nicole Holley
(“Holley”), with conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and 21 U.S.C. § 846 (Count One), and two counts of using
a communication facility, namely a cell phone, in committing,
causing and facilitating a felony drug offense, in violation
of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 843(b)
(Counts Thirteen and Fourteen). (ECF No. 1). Holley was
arrested on August 18, 2017 (ECF No. 74), and she appeared
for arraignment on August 21, 2017, at which time she entered
a not guilty plea to the Indictment. (ECF No. 30). The Court
appointed Christy Comstock (“Comstock”), a CJA
Panel attorney, to represent Holley. (ECF No. 30; Text Only
Order entered August 21, 2017). Comstock requested discovery
in open court on behalf of Holley. (ECF No. 30).
October 13, 2017, Holley appeared before the Hon. Mark E.
Ford, Magistrate Judge, for a change of plea hearing. (ECF
No. 99). Pursuant to a written Plea Agreement (ECF No. 100),
Holley pleaded guilty to Count One of the Indictment charging
her with conspiracy to distribute methamphetamine. (ECF No.
99). A Report and Recommendation that Holley's guilty
plea be accepted and the Plea Agreement tentatively approved,
subject to final approval at sentencing, was filed on October
13, 2017. (ECF No. 102). An Order adopting the Report and
Recommendation in toto was entered by the Hon. P. K.
Holmes, III, Chief District Judge, on October 17, 2017. (ECF
Initial Presentence Investigation Report (“PSR”)
was prepared by the United States Probation Office on
December 12, 2017. (ECF No. 158). On December 22, 2017, both
Holley and the Government advised that they had no objections
to the PSR. (ECF Nos. 167, 170).
December 27, 2017, a Final PSR was submitted to the Court.
(ECF No. 171). The Final PSR determined that Holley was
accountable for 184.27 grams of a mixture of methamphetamine
and, as a result, Holley's Base Offense Level was
determined to be 24. (ECF No. 171, ¶¶ 50, 55). This
was decreased two levels for specific offense characteristics
because Holley met the “safety valve”
requirements of U.S.S.G. § 5C1.2 (ECF No. 171,
¶¶ 50, 56), resulting in an Adjusted Offense Level
of 22 (ECF No. 171, ¶ 60). After a three level reduction
for acceptance of responsibility, Holley's Total Offense
Level was determined to be 19. (ECF No. 171, ¶¶
62-64). Holley's criminal history resulted in a total
criminal history score of zero, placing her in Criminal
History Category I. (ECF No. 171, ¶ 73). The statutory
maximum term of imprisonment for the offense of conviction is
20 years. (ECF No. 171, ¶ 106). Based upon a Total
Offense Level of 19 and a Criminal History Category of I,
Holley's advisory guideline range was determined to be 30
to 37 months imprisonment. (ECF No. 171, ¶ 107).
appeared for sentencing on March 1, 2018. (ECF No. 261). The
Court made inquiry that Holley was satisfied with her
counsel, final approval of the Plea Agreement was expressed,
and the Court imposed a below-guidelines sentence of 18
months imprisonment, three years supervised release, no fine,
and a $100.00 special assessment. (Id.). Judgment
was entered by the Court on March 1, 2018. (ECF No. 266). The
Court's Statement of Reasons set forth that the Court
adopted the PSR without change; that no count of conviction
carries a mandatory minimum sentence; that the Court departed
below the guideline range upon the government's motion
for departure for Holley's substantial assistance; and,
that the Court determined a downward variance was warranted
due, in part, to the history and characteristics of the
Defendant. (ECF No. 267).
did not pursue a direct appeal from the Judgment.
4, 2018, Holley filed her pro se Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (the “Motion”).
(ECF No. 282). The Motion raises four grounds for relief, all
being claims of ineffective assistance of counsel: (1)
counsel was ineffective at the pre-trial stage when she
failed to investigate affirmative defenses, failed to ensure
that Holley understood all of the elements of the offenses,
failed to investigate and/or explain lesser-included
offenses, failed to provide Holley with copies of all
relevant documents, and failed to properly explain all
options so Holley could participate in her defense (ECF No.
282, p. 4); (2) counsel was ineffective at the plea stage
when she failed to ensure that Holley received the benefit of
the bargain she made with the government, failed to explain
that a plea agreement is governed by contract law and that it
could be negotiated, and that the Plea Agreement did not
contain protections against use of her proffer information
against her but did contain a waiver of documents that she
would have never agreed to (Id., p. 6); (3) counsel
was ineffective at sentencing when she failed to raise
affirmative defenses, i.e., first offender treatment, failed
to raise minimal or minor role adjustment, failed to present
a fully developed plan for drug treatment, failed to ensure
protected information was not used to calculate Holley's
guidelines range, and failed to raise all sentencing
arguments (Id., p. 7); and, (4) counsel was
ineffective at the appeal stage when she failed to consult
with Holley concerning an appeal and did not file a notice of
appeal (Id., p. 8).
United States' Response to the Motion was filed on July
24, 2018. (ECF No. 300). Holley did not file a reply.
prisoner in custody under sentence . . . claiming the right
to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). “If the court finds that the
judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open
to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral attack, the
court shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b). A thorough review of Holley's
§ 2255 Motion and the files and records of this case
conclusively shows that Holley is not entitled to relief, and
the denial and dismissal of her § 2255 Motion with
prejudice without an evidentiary hearing is recommended.
Legal Standard for Ineffective Assistance of Counsel
prove a claim of ineffective assistance of counsel, a
criminal defendant must demonstrate both that counsel's
performance was deficient, and that counsel's deficient
performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To establish the
deficient performance prong of the Strickland test,
one must show that counsel's representation fell below
the “range of competence demanded of attorneys in
criminal cases.” Id. at 688. Review of
counsel's performance is highly deferential, and there is
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.
Id. at 689. Moreover, “[s]trategic choices
made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.”
United States v. Rice, 449 F.3d 887, 897 (8th Cir.
2006) (quoting Strickland, 466 U.S. at 690). Courts
also “do not use hindsight to question counsel's
performance, ” but instead must analyze it according to
counsel's situation at the time of the allegedly
incompetent act or omission. Kenley v. Armontrout,
937 F.2d 1298, 1303 (8th Cir. 1991). If one fails to
establish deficient performance by counsel, the court need
proceed no further in its analysis of an ineffective
assistance of counsel claim. United States v.
Walker, 324 F.3d 1032, 1040 (8th Cir. 2003).
establish the prejudice prong of the Strickland
test, one must demonstrate “that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. The United States
Supreme Court has clarified that the proper prejudice
analysis is whether “counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Lockhart v.
Fretwell, 506 U.S. 364, 369 (1993) (quoting
Strickland, 466 U.S. at 687).
Validity and Effect of Holley's Guilty Plea
unconditionally pleaded guilty to the offense of conviction.
When a guilty plea is entered by the movant, the focus of a
collateral attack must remain limited to the nature of
counsel's advice and the voluntariness of the guilty
plea. Bass v. United States, 739 F.2d 405, 406 (8th
Cir. 1984), citing Tollett v. Henderson, 411 U.S.
258, 266 (1973). As the Court in Tollett eloquently
“. . . a guilty plea represents a break in the chain of
events which has preceded it in the criminal process. When a
criminal defendant has solemnly admitted in open court that
he is in fact guilty of the offense with which he is charged,
he may not thereafter raise independent claims relating to
the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea
by showing that the advise he received from counsel was not
within the standards set forth in
A guilty plea, voluntarily and intelligently entered, may not
be vacated because the defendant was not advised of every
conceivable constitutional plea in abatement he might have to
the charge . . . And just as it is not sufficient for the
criminal defendant seeking to set aside such a plea to show
that his counsel in retrospect may not have correctly
appraised the constitutional significance of certain
historical facts, (internal citation omitted) it is likewise
not sufficient that he show that if counsel had pursued a
certain factual inquiry such a pursuit would have uncovered a
possible constitutional infirmity in the proceedings.”
Id. at 267. (Emphasis added.)
rationale and ruling of Tollett, while a decision
concerning a state prisoner's habeas claims, has been
adopted by the Eighth Circuit for application to motions made
by federal prisoners under 28 U.S.C. § 2255. See
Bass, 739 F.2d at 406.
standard for determining the validity of a guilty plea
remains whether it “represents a voluntary and
intelligent choice among the alternative courses of action
open to the defendant.” North Carolina v.
Alford, 400 U.S. 25, 31 (1970), citing Boykin v.
Alabama, 395 U.S. 238, 242 (1969), Machibroda v.
United States, 368 U.S. 487, 493 (1962), and
Kercheval v. United States, 274 U.S. 220, 223
(1927). “While a guilty plea taken in open court is not
invulnerable to collateral attack in a post conviction
proceeding, the defendant's representations during the
plea-taking carry a strong presumption of verity and pose a
‘formidable barrier in any subsequent collateral
proceedings.'” Nguyen v. United States,
114 F.3d 699, 703 (8th Cir. 1997) (quoting Voytik v.
United States, 778 F.2d 1306, 1308 (8th Cir. 1985)). A
defendant has a heavy burden to overcome those admissions and
show that his guilty plea was involuntary. See Blackledge
v. Allison, 431 U.S. 63, 72-74 (1977).
present case, Holley was represented by experienced defense
counsel, Christy Comstock, a CJA Panel attorney, throughout
the criminal proceedings. Prior to the change of plea
hearing, Comstock had represented Holley at the arraignment
(ECF No. 30); she requested discovery on the record at
arraignment in compliance with the Court's Pretrial
Scheduling Order (ECF No. 40); ...