Berry v. United States

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) Case No. CR-19-175-G-2

) Case No. CIV-21-192-G

REGENEA CAROL BERRY, )

)

Defendant. )

ORDER

Now before the Court is Defendant Regenea Carol Berry’s pro se Motion Under 28

U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. No. 73). The Government

has filed a Response (Doc. No. 87). After careful consideration of the parties’ arguments,

the relevant authorities, and the case record, the Court determines that no evidentiary

hearing is necessary and that the Motion should be denied on the existing record.1

I. Background

On June 19, 2019, a federal grand jury indicted Defendant and one other individual

on a one-count Indictment charging that the two defendants knowingly took by force,

violence, and intimidation, from the person and in the presence of bank employees,

approximately $19,821.36 in U.S. currency, belonging to and in the care, custody, control,

management, and possession of the International Bank of Commerce in Moore, Oklahoma,

in violation of 18 U.S.C. § 2113(a). See Indictment (Doc. No. 24). Assistant Federal

1 No evidentiary hearing is required where “the motion and the files and records of the

case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see

also United States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996).

Public Defender Teresa Brown was appointed by the Court to represent Defendant in this

case. See Doc. No. 10.

Defendant pled guilty to the one-count Indictment on July 22, 2019. See Doc. No.

41. An initial Presentence Investigation Report (“PSR”) was prepared and filed on

January 27, 2020. See Initial PSR (Doc. No. 44). Through counsel, Defendant raised

objections to the initial PSR; these objections were addressed in the Final PSR, filed on

February 12, 2020. See Final PSR (Doc. No. 46) at 28-31. Defendant’s counsel also

filed a written Sentencing Memorandum with supporting exhibits (Doc. No. 53), presenting

Defendant’s sentencing arguments to the Court.

Defendant and her counsel appeared before the Court on April 3, 2020. The Court

imposed a sentence of 70 months’ imprisonment, to be followed by three years of

supervised release. See J. (Doc. No. 60). This sentence represented the bottom of the

recommended range for imprisonment as calculated under the United States Sentencing

Guidelines. Defendant did not appeal her conviction.

II. Discussion

Under 28 U.S.C. § 2255, a prisoner in custody serving a federal sentence may move

to vacate, set aside, or correct his or her sentence “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.” 28 U.S.C. §

2255.

Liberally construed, Defendant’s Motion seeks relief on the basis that her defense

counsel, Ms. Brown, rendered constitutionally ineffective assistance. See Def.’s Mot. at

3-9. To show that her counsel’s performance was constitutionally ineffective, Defendant

must demonstrate that the performance of counsel was deficient and that such deficiency

prejudiced the outcome of the case. See Strickland v. Washington, 466 U.S. 668, 687

(1984). To establish the first prong of the Strickland test—that counsel’s performance

was deficient—Defendant must show that counsel’s behavior was unreasonable under

“prevailing professional norms.” Id. at 688. The Supreme Court shuns specific

guidelines for measuring deficient performance, as “[n]o particular set of detailed rules for

counsel’s conduct can satisfactorily take account of the variety of circumstances faced by

defense counsel or the range of legitimate decisions regarding how best to represent a

criminal defendant.” Id. at 688-89. Defendant must overcome the presumption that the

“challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel

v. Louisiana, 350 U.S. 91, 101 (1955)). “For counsel’s performance to be constitutionally

ineffective, it must have been completely unreasonable, not merely wrong.” Boyd v.

Ward, 179 F.3d 904, 914 (10th Cir. 1999).

Even if Defendant shows deficient performance, she must also show prejudice by

establishing “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

“When a defendant challenges a conviction, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.” Id. at 695. In making that determination, the court must “tak[e] the

unaffected findings as a given” and decide whether the outcome “would reasonably likely

have been different absent the errors.” Id. at 696.

The Court “may address the performance and prejudice components in any order”

and “need not address both if [Defendant] fails to make a sufficient showing of one.”

Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998).

A. Failure to Object to Sentencing Enhancement

The Initial PSR applied a two-level increase to the calculation of Defendant’s

offense level based upon her codefendant’s use of a firearm during the robbery and a six-

level increase based upon the codefendant’s use of that firearm to physically restrain the

bank tellers to facilitate the robbery. See Initial PSR ¶¶ 37, 38 (citing USSG §

2B3.1(b)(2)(B), (4)(B)). The Final PSR noted Defendant’s objection but again applied

the 8-level increase. See Final PSR ¶¶ 37, 38, pp. 29-31.

At sentencing, Defendant’s counsel withdrew Defendant’s “legal objection” to the

firearms enhancement but requested that the Court consider that objection in the context of

Defendant’s requests for a downward departure and/or a variance from the Guidelines

sentence. See Sent’g Tr. (Doc. No. 87-2) at 6. The Court permitted the withdrawal and

adopted the Final PSR, including the 8-level firearm enhancement. See id. at 8.

Defendant first argues that her counsel was ineffective because she failed to object

to the sentencing enhancement for the possession of a firearm. See Def.’s Mot. at 3. Ms.

Brown has advised that the decision to withdraw this initially made objection at the

sentencing hearing was taken for strategic reasons and with the agreement of Defendant.

See Byers Aff. ¶ 3 (Doc. No. 87-1).2 Moreover, even if the objection had been asserted,

the Sentencing Guidelines direct that a defendant in a jointly undertaken criminal activity

is accountable for “all acts and omissions of others” that were

(i) within the scope of the jointly undertaken criminal activity,

(ii) in furtherance of that criminal activity, and

(iii) reasonably foreseeable in connection with that criminal activity;

that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection

or responsibility for that offense[.]

USSG § 1B1.3(a)(1)(B).

Defendant was jointly undertaking the robbery with her codefendant when he

brandished a firearm, pointed it at the bank employees, racked the slide, and instructed

them to get on the floor. See Final PSR at 29-31. Defendant therefore cannot establish

“a reasonable probability that, but for” counsel’s ultimate withdrawal of the legal objection,

the enhancement would not have been applied and “the result of the proceeding would have

been different.” Strickland, 466 U.S. at 694.

B. Failure to Timely File Notice of Appeal

Defendant asserts that she “was not told that [she] ha[d] only 30 days” to file an

appeal and that her counsel was ineffective because she failed to timely seek an appeal of

the conviction and sentence. Def.’s Mot. at 4. Defendant’s factual assertion is belied

by the sentencing transcript, however, which reflects that the Court expressly announced

2 The Court has found that Defendant waived attorney-client privilege as to

communications with defense counsel relevant to the Motion’s allegations of error. See

Order of June 16, 2022 (Doc. No. 84) at 2. Defendant has not raised any hearsay or other

objections to the Government’s reliance upon Ms. Brown’s account of relevant events.

that Defendant had a right to appeal and that any notice of appeal must be filed within 14

calendar days. See Sent’g Tr. at 31-32.

Ms. Brown has represented that she discussed the possibility of an appeal with

Defendant. Ms. Brown’s opinion was that there were no circumstances warranting an

appeal. See Byers Aff. ¶ 4. Defendant did not request that an appeal be filed when the

sentence was announced; rather, Defendant brought up the subject of an appeal many

months later, and Ms. Brown advised Defendant that it was then too late to pursue an

appeal. Id.

Defendant fails to show deficient performance under Strickland with regard to this

ineffective assistance of counsel claim. Defendant’s broad objection does not overcome

the presumption that the decision to forgo an appeal was sound strategy. “[T]he Sixth

Amendment does not require an attorney to raise every nonfrivolous issue on appeal.”

Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995); see also Smith v. Murray, 477

U.S. 527, 536 (1986) (explaining that the process of “winnowing out weaker arguments on

appeal and focusing on those more likely to prevail . . . is the hallmark of effective appellate

advocacy” (internal quotation marks omitted)); Peugh v. United States, 569 U.S. 530, 537

(2013) (“The court of appeals may, but is not required to, presume that a within-Guidelines

sentence is reasonable.”).

C. Counsel’s Conflict of Interest

Defendant contends that Ms. Brown also worked on Defendant’s son’s father’s sex-

trafficking case and that this representation caused a conflict of interest that interfered with

Ms. Brown’s representation of Defendant in this matter. See Def.’s Mot. at 6.

The public docket sheet for the relevant case does not reflect that Ms. Brown

represented any party therein. See United States v. Johnson, No. CR-14-341-F (W.D.

Okla.). Accordingly, there has been no showing of deficient performance or prejudice

based upon any decision by Ms. Brown in this regard. See United States v. Fisher, 38

F.3d 1144, 1147 (10th Cir. 1994) (rejecting defendant’s ineffective-assistance arguments

and explaining that the court is “not required to fashion [the defendant’s] arguments for

[her] where [her] allegations are merely conclusory in nature and without supporting

factual averments”).

D. Failure to Seek a Downward Departure

Defendant next objects that her counsel “unprofessional[l]y failed to move for [an]

appro[pr]iate downward departure.” Def.’s Mot. at 7. This claim fails because Ms.

Brown did seek a downward departure and/or variance from the Guidelines sentence both

by written motion and at the sentencing hearing. See Def.’s Sent’g Mem. at 1, 9-10;

Sent’g Tr. at 6-7, 8-10, 19-27; see also United States v. Clark, 650 F. App’x 569, 571 (10th

Cir. 2016) (rejecting the defendant’s contention “that counsel was ineffective for failing to

object to his criminal-history calculation” where the record showed that counsel did in fact

object to the calculation).

E. Failure to Review Discovery with Defendant

Finally, Defendant argues that her counsel was ineffective because Defendant

“never got to see discovery.” Def.’s Mot. at 9. Ms. Brown has advised that, to the

contrary, she reviewed discovery material multiple times with Defendant. Byers Aff. ¶ 7.

Further, Defendant does not offer any basis for the Court to find that any failure in this

respect affected the proceedings or “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694.

CONCLUSION

It is therefore ORDERED that Defendant’s Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence (Doc. No. 73) is DENIED. Defendant’s Motion

for Ruling (Doc. No. 77) is DENIED as moot.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, the Court

must issue or deny a certificate of appealability (“COA”) when it enters a final order

adverse to a defendant. A COA may issue only upon “a substantial showing of the denial

of a constitutional right.” See 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537

U.S. 322, 327 (2003). Upon consideration, the Court concludes that the requisite standard

is not met in this case. Therefore, a COA is denied.

A separate judgment shall be entered.

IT IS SO ORDERED this 7th day of March, 2024.

(Vauba B. Kodo

United States District Judge