Phenix v. United States

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

PIERRE PHENIX, )

)

Petitioner, )

)

v. ) Case No. 4:22-cv-00825-HEA

)

UNITED STATES OF AMERICA, )

)

Respondent. )

OPINION, MEMORANDUM AND ORDER

This matter is before the Court on Petitioner Pierre Phenix’s Motion

Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in

Federal Custody, [Docs. 1, 6], and a Motion to Amend 28 U.S.C. § 2255 Motion,

[Doc. 24]. The Government filed a response in opposition, [Doc. 22]. For the

reasons stated below, both motions will be denied and this matter will be

dismissed with prejudice.

BACKGROUND

On April 7, 2021, Phenix was indicted by the Grand Jury for the Eastern

District of Missouri on a charge of felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1). United States v. Phenix, 4:21-cr-00239-HEA (E.D. Mo.),

[Doc. 1]. The maximum penalty for that charge is imprisonment of not more than

10 years and a fine of not more than $250,000. 18 U.S.C. § 924(a)(2).

Plea Agreement

On June 1, 2021, Phenix executed a written guilty plea agreement with the

Government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). [Doc.

37].1 Phenix acknowledged “having voluntarily entered into both the plea

agreement and guilty plea” and that “[he], is in fact, guilty.” [Id. at 10]. Phenix

stipulated and agreed to the following facts:2

On March 31, 2021, Defendant was arrested in St. Louis County, within the

Eastern District of Missouri, while possessing a firearm. On that day, police

were surveilling Defendant to arrest him on active warrants, and to take

custody of three minor children who were supposed to be in the custody of

the Children’s Division. Police surveilled Phenix, waiting for him to exit his

vehicle so that police could arrest him without endangering the children.

As Phenix arrived at a car wash and exited the vehicle, police stopped him

and arrested him. He was carrying a handgun in his left armpit. Security

camera footage from the car wash showed that when he exited the vehicle,

the handgun was in his right pant pocket, with its extended magazine

protruding from his pocket. Once he exited the vehicle, the security footage

shows him remove the handgun from his pocket and place it in his armpit,

between his left arm and torso. When police arrested him, they seized the

firearm. A search of Phenix’s car led to the discovery of 4.5 grams of crack

cocaine and a spare 50-round drum magazine for the handgun.

The handgun was identified as a Glock make, model 19, 9mm Luger caliber

semiautomatic handgun. It was loaded with one round in the chamber and a

fully-loaded 17-round magazine. The handgun was determined by an expert

firearms examiner to have been manufactured outside the State of Missouri,

and, therefore, the handgun had been transported across state lines and in

1 All citations to the record refer to the underlying criminal case, United States v. Phenix,

4:21-cr-00239-HEA (E.D. Mo.) unless otherwise stated.

2 Phenix also agreed that the facts were true and correct under oath during the plea

hearing. [Doc. 68 at 15-18].

interstate commerce prior to or during Defendant’s possession. The handgun

can expel a projectile by the action of an explosive and is, therefore, a

“firearm” as defined under federal law. Defendant admits possessing the

firearm, as charged in Count One.

Prior to March 31, 2021, Defendant was convicted of at least one felony

crime punishable by imprisonment for a term exceeding one year. At the

time Defendant possessed the aforementioned firearm, he knew he had been

convicted of a crime punishable by a term of imprisonment exceeding one

year.

The suspected controlled substances were submitted to and analyzed by an

expert criminalist with the St. Louis City Crime Laboratory. The suspected

controlled substances were confirmed to be crack cocaine, a Schedule II

controlled substance. Defendant knew the substances were controlled

substances.

[Id. at 3-4]. Additionally, the parties agreed that the stipulated facts “may be

considered as relevant conduct pursuant to Section 1B1.3.” [Id. at 2].

As part of the plea agreement, the Government agreed “that no further

federal prosecution will be brought in this District relative to Defendant’s

violations of federal law, known to the United States at this time, arising out of the

events set forth in the Indictment.” [Id. at 1]. Further, the parties agreed “that

because the Government will not charge Defendant with possession with intent to

distribute crack cocaine on March 31, 2021, neither party shall request a sentence

above or below the U.S. Sentencing Guidelines range (combination of Total

Offense Level and Criminal History Category) ultimately determined by the

Court.” [Id. at 2].

The statutory penalties were set forth in the plea agreement as follows:

Defendant fully understands that the maximum possible penalty provided by

law for the crime to which Defendant is pleading guilty is imprisonment of

not more than ten years, a fine of not more than $250,000, or both such

imprisonment and fine. The Court also may impose a period of supervised

release of not more than three years.

In certain situations under Title 18, United States Code, Section 924(e)

(Armed Career Criminal), Defendant may be subject to a mandatory

minimum sentence of imprisonment of fifteen (15) years and a maximum of

life, a fine of not more than $250,000, or both such imprisonment and fine,

and a term of supervised release of not more than five years. Defendant is

pleading guilty with full knowledge of these possibilities, has discussed

these possibilities with counsel and will not be able to withdraw the guilty

plea if the Court determines the foregoing statute applies to Defendant’s

sentence.

[Id. at 4].

The parties agreed that the applicable base offense level and total offense

level depended on the nature of Defendant’s criminal history, the characteristics of

the firearm, and other relevant factors. [Id. at 5-6]. The parties also agreed that the

following specific offense characteristics applied: “A four-level increase pursuant

to 2K2.1(b)(6)(B) because Defendant possessed a firearm in connection with

another felony offense, including possession with intent to distribute crack cocaine,

possession of crack cocaine, and endangering the welfare of a child.” [Id. at 5].

Further, under the agreement, Phenix would receive a three-level reduction for

acceptance of responsibility pursuant to Section 3E1.1 (a) and (b). [Id.]. The

determination of Phenix’s criminal history category was left to the Court. [Id. at

6]. Further, the parties agreed that “the Court is not bound by the Guidelines

analysis agreed to herein. The parties may not have foreseen all applicable

Guidelines. The Court may, in its discretion, apply or not apply any Guideline

despite the agreement herein and the parties shall not be permitted to withdraw

from the plea agreement.” [Id. at 7].

Phenix waived his right to file pretrial motions including motions to

suppress or exclude evidence and the right to a jury trial. [Id. at 9]. He also

acknowledged that he “has been fully apprised by defense counsel of [his] rights

concerning appeal” and waived his right to appeal and post-conviction rights with

certain limited exceptions. [Id. at 7]. He agreed that he was “fully satisfied with

the representation received from defense counsel,” that he had “reviewed the

United States’ evidence and discussed the United States’ case and all possible

defenses and defense witnesses with defense counsel,” and that “[d]efense counsel

has completely and satisfactorily explored all areas which Defendant has requested

relative to the United States’ case and any defenses.” [Id. at 10].

Change of Plea Hearing

Phenix appeared with his counsel on July 29, 2021, and entered a plea of

guilty to the charge of felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1) in accordance with the plea agreement. [Docs. 37, 68]. He was sworn

under oath and questioned by the Court. [Id.] When questioned about defense

counsel, he testified as follows:

Q. (By the Court) … Mr. Phenix, have you had the opportunity to meet with

your lawyer and talk with him about your case?

A. Yes.

Q. And are you satisfied that you have had sufficient time and opportunity to

meet with him and talk about your case?

A. Yes.

Q. And has your lawyer advised you regarding your case?

A. Yes.

Q. And are you satisfied with all of the advice that he has given to you?

A. Yes, sir.

Q. Has he answered all of your questions fully, completely, and to your

satisfaction?

A. Yes, sir.

Q. Is there anything that you needed to know or wanted to know about your

case that still confuses you?

A. No, sir.

Q. Is there anything about your case that you still do not understand?

A. No, sir.

Q. Were there any witnesses that you wanted your lawyer to contact that he

should have contacted but did not contact?

A. No, sir.

Q. Was there any investigation that you wanted your lawyer to do for you, or

that he should have done for you, that he didn’t do?

A. No, sir.

Q. Was there any information that you wanted him to get from the

Government regarding your case that he should have gotten from the

Government regarding your case that he didn’t get?

A. No, sir.

Q. Was there anything at all that you wanted your lawyer to do for you in

this case that he has failed to do or refused to do for you?

A. No, sir.

Q. Are you fully satisfied with all of the work that Mr. Byrne has done for

you?

A. Yes, sir.

Q. Do you have any complaints against him in regard as your attorney?

A. No, sir.

[Doc. 68 at 7-8].

When questioned by the Court regarding sentencing and his knowledge of

the range of punishment, Phenix testified:

Q. Do you understand that whatever sentence I impose is entirely up to me?

A. Yes, sir.

Q. Do you understand, Mr. Phenix, that that’s true, even though you may

have some agreement between yourself and the United States on things

relating to sentencing?

A. Yes, sir.

[Id. at 10-11].

Q. Were you also aware of the range of punishment that applies to the

charges in the indictment? A. Yes, sir.

Q. And you have talked about that with your lawyer as well?

A. Yes, sir.

Q. Any questions about the range of punishment?

A. No, sir.

THE COURT: All right. Mr. Dunkel, what is the applicable range of

punishment in this matter? MR. DUNKEL: As for a term of imprisonment,

is a term of incarceration of up to 10 years. As for the fine, it is a fine of up

to $250,000, and of course, it could be both imprisonment and a fine. It is

also including a term of supervised release of no more than three years.

Q. (By the Court) Mr. Phenix, did you hear everything that Mr. Dunkel just

said?

A. Yes, sir.

Q. And is there anything regarding the range of punishment that he stated

just now that surprised you in any way just now?

A. No, sir.

Q. Has anyone forced you to plead guilty today?

A. No, sir.

Q. Has anyone threatened you to cause you to plead guilty?

A. No, sir.

Q. Has anybody made any promises to you in exchange for your plea of

guilty?

A. No, sir.

[Id. at 11-12].

Q. So again, do you understand whatever the sentence is, it is entirely up to

me?

A. Yes, sir.

Q. And knowing that, do you still want to go forward with your plea of

guilty here today? A. Yes, sir.

[Id. at 15].

When questioned about the plea agreement, Phenix testified:

Q. …When we started out this proceeding, Mr. Phenix, I made a reference to

the guilty plea agreement. Your last page of the guilty plea agreement, page

11, shows the name of Pierre Phenix in print, and there is a signature above

the printed name; is that your signature?

A. Yes, sir.

Q. And before you signed the document, did you talk about it with your

attorney Mr. Byrne?

A. Yes, sir.

Q. And as a result of that discussion and review, are you now satisfied that

you understand everything in the guilty plea agreement?

A. Yes, sir.

Q. Are there any questions that that you have regarding the guilty plea

agreement?

A. No, sir.

[Id. at 13].

MR. DUNKEL: As part of the guilty plea agreement, the Defendant is

agreeing to plead guilty to Count 1 of the indictment. That’s the count of

being a Felon in Possession of a Firearm. In exchange for that plea of guilty

to Count 1, the Government is promising to file no additional charges

against the Defendant. And that would also include charges relating to the

crack cocaine that he was in possession of on the day of his arrest. The

parties also agree that the parties will request a sentence that’s within the

guidelines of the United States Sentencing Guideline manual. And finally,

your Honor, I would note, that as part of the guilty plea agreement, the

Defendant is waiving certain Appellate Rights.

Q. (By the Court) All right, thank you. Did you hear all of those things that

he just stated, Mr. Phenix?

A. Yes, sir.

Q. Is there anything he said regarding the guilty plea agreement just now

that surprised you in any way just now?

A. No, sir.

Q. All right. The Court will then approve of the guilty plea agreement as

outlined on the record. Mr. Phenix, has anybody given you a promise or

given you a prediction regarding what your sentence from me is going to be?

A. No, sir.

Q. So again, do you understand whatever the sentence is, it is entirely up to

me?

A. Yes, sir.

Q. And knowing that, do you still want to go forward with your plea of

guilty here today?

A. Yes, sir.

[Id. at 14-15].

Presentence Investigation Report

The United States Probation Office prepared a Presentence Investigation

Report (“PSR”). [Doc. 46]. Phenix’s base offense level was 26. [Id. at 6]. Four

levels were added for possessing a firearm in connection with another felony

offense. [Id.]. And, he received a three-level reduction for acceptance of

responsibility. [Id.]. His total offense level was 27. [Id.].

Phenix’s total criminal history score was 19, which established a criminal

history category of VI. [Id. at 9]. His criminal history included felony

convictions for Resisting Arrest (3), Possession of a Controlled Substance (2),

Domestic Assault 2nd Degree (2), Aggravated Stalking, Endangering the Welfare

of a Child, and Tampering with a Motor Vehicle. [Id. at 7-26]. He also had

numerous misdemeanor convictions including Domestic Assault 3rd Degree (3)

and Possession of a Controlled Substance. [Id.]. In total, his criminal history

included 36 cases with several cases involving more than one charge. [Id.].

Based on a total offense level of 27 and a criminal history category of VI,

Phenix’s guideline imprisonment range was 130 to 162 months. [Id. at 33].

Because the statutory maximum term of imprisonment was 10 years, the

guideline term of imprisonment became 120 months. [Id.].

Sentencing Hearing

During the sentencing hearing on January 5, 2022, the Court adopted as its

findings of fact the factual statements in the PSR. [Doc. 60 at 3]. The Court also

adopted, as its additional findings, the Sentencing Guidelines calculations in the

PSR of a Total Offense Level of 27, a Criminal History Category of VI, and

sentencing guideline range of 120 months. [Id. at 4]. The parties asked the Court

to follow the plea agreement in which the parties agreed to a guideline sentence,

which under the circumstances was 120 months. [Id. at 4-5]. The Court followed

the plea agreement and sentenced Phenix to 120 months imprisonment. [Id.].

28 U.S.C. § 2255 Motion

On August 5, 2022, Phenix filed the instant motion pursuant to 28 U.S.C.

§ 2255 to vacate, set aside, or correct his sentence, alleging ineffective assistance

of counsel. [Petitioner’s § 2255 Motion, Docs. 1, 6]. He focuses on two alleged

inconsistencies in the plea agreement in three of the four grounds stated in his

§ 2255 motion. For Ground 1, he claims that defense counsel was ineffective for

failing to object to the alleged inconsistencies in the plea agreement. [Doc. 6 at 4,

19-26]. For Ground 2, he claims that defense counsel was ineffective for failing to

investigate the case and go over the case with him. [Id. at 5, 27-32]. For Ground

3, he claims that defense counsel was ineffective for causing him to sign a guilty

plea agreement with the alleged deficiencies. [Id. at 7, 32-35]. For Ground 4, he

claims that defense counsel was ineffective for failing to file pretrial motions

including a motion to dismiss the Indictment and a motion to suppress the

evidence. [Id. at 8, 36-38]. Under Grounds 1-3, Phenix commingles his primary

claim of ineffective assistance of counsel with allegations of breach of the plea

agreement, prosecutorial misconduct, sentencing issues, and failure to appeal. [Id.

at 19-35].

LEGAL STANDARDS

28 U.S.C. § 2255

Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a

sentence imposed against him on grounds that “the sentence was imposed in

violation of the Constitution or law 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. To obtain relief under § 2255, the petitioner must establish a

violation constituting “a fundamental defect which inherently results in a

complete miscarriage of justice.” United States v. Gomez, 326 F.3d 971, 974 (8th

Cir. 2003) (quoting United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir.

1989)). Section 2255 is not designed to provide a remedy for “all claimed errors

in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185

(1979). The petitioner bears the burden of proof as to each asserted ground for

relief. Golinveaux v. United States, 915 F.3d 564, 567 (8th Cir. 2019).

A petitioner is entitled to an evidentiary hearing on a § 2255 motion unless

“the motion, files, and records of the case conclusively show that the movant is not

entitled to relief.” Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013)

(citing 28 U.S.C. § 2255(b)). The motion “can be dismissed without a hearing if

(1) the petitioner’s allegations, accepted as true, would not entitle the petitioner 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.” Engelen v. U.S., 68 F.3d 238, 240 (8th Cir. 1995).

Ineffective Assistance of Counsel Claims

The Sixth Amendment establishes the right of the criminally accused to

the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686

(1984). To prove a claim of ineffective assistance of counsel, the petitioner must

show that (1) his counsel did not perform to the degree of skill of a reasonably

competent attorney, and as a result, (2) he was prejudiced. Id. at 687. Failure to

satisfy either of the Strickland prongs [performance or prejudice] is fatal to the

claim. Kingsberry v. United States, 202 F.3d 1030, 1032 (8th Cir. 2000) (“If the

petitioner makes an insufficient showing on one component, the court need not

address both components.”).

“Strickland’s first prong sets a high bar.” Buck v. Davis, 580 U.S. 100, 118

(2017). An attorney’s performance is not constitutionally deficient “unless it is

outside the ‘wide range of reasonable professional assistance.’” Love v. United

States, 949 F.3d 406, 410 (8th Cir. 2020) (quoting Strickland, 466 U.S. at 689). “It

is only when the lawyer’s errors were so serious that counsel was not functioning

as the ‘counsel’ guaranteed by the Sixth Amendment that Strickland’s first prong is

satisfied.” Id. (quoting Buck, 580 U.S. at 118-119 (cleaned up)). The Court makes

“every effort to eliminate the distorting effects of hindsight and consider

performance from counsel’s perspective at the time.” Id. (cleaned up). The

starting point for this analysis is “a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Rodela-Aguilar v.

United States, 596 F.3d 457, 461 (8th Cir. 2010) (quoting Strickland, 466 U.S. at

689). A petitioner “bears the burden to overcome the strong presumption that

counsel’s performance was reasonable.” Thomas v. United States, 737 F.3d 1202,

1207 (8th Cir. 2013).

A court need not determine whether a movant meets the performance prong

of Strickland, “[i]f it is easier to dispose of an ineffectiveness claim on the ground

of lack of sufficient prejudice.” Strickland, 466 U.S. at 697. “[T]he prejudice

prong requires proof that there is a reasonable probability that, but for a counsel’s

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

Nave v. Delo, 62 F.3d 1024, 1035 (8th Cir. 1995) (cleaned up). This inquiry depends

on the likelihood of success if the alleged error were corrected. Hill v. Lockhart, 474

U.S. 52, 59 (1985).

Generally, to establish prejudice where a defendant has entered a guilty

plea, “the [m]ovant 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.’” United States v. Frausto, 754 F.3d 640, 643 (8th Cir. 2014)

(quoting Hill, 474 U.S. at 59). “[T]he 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) (cleaned up). Where the petitioner states on the record that he is

satisfied with his lawyer, that no threats or promises had been made to induce him

to plead guilty, and admits his guilt, he has a heavy burden to overcome those

admissions and show that his plea was involuntary. Nguyen, 114 F.3d at 703.

DISCUSSION

28 U.S.C. § 2255 Motion

Phenix focuses on two alleged inconsistencies in the plea agreement as the

basis for Grounds 1-3: (1) that the plea agreement was “contradictive” with regard

to prosecution for other crimes; and (2) the Government’s promise of a three-level

reduction based on his acceptance of responsibility was illusory. His larger point

is that he did not receive a benefit from the plea agreement because he received the

maximum sentence.

Ground 1: Defense counsel was ineffective for failing to object to two alleged

inconsistencies in the plea agreement.

In addition to arguing that defense counsel was ineffective for failing to

object to the alleged inconsistencies in the plea agreement, Phenix claims the

alleged inconsistencies constitute a breach of the plea agreement and prosecutorial

misconduct. He alleges defense counsel should have objected to and appealed the

prosecutorial misconduct.

A. “Contradictive” plea agreement

Phenix asserts the plea agreement was “contradictive” based on his belief

that sections 2 and 6 conflict with each other. In section 2, the Government agreed

not to prosecute him for any other violations of federal law arising out of the

events that gave rise to the Indictment. [Doc. 37 at 1]. In section 6, the parties

agreed that Phenix would receive a four-level enhancement for possessing a

firearm in connection with three other felony offenses – possession with intent to

distribute crack cocaine, possession of crack cocaine, and endangering the welfare

of a child. [Id. at 5]. He contends defense counsel was ineffective for failing to

notice and object to the alleged inconsistency. Further, he argues the alleged

inconsistency is a breach of the plea agreement and prosecutorial misconduct.

There is no inconsistency in the Government agreeing not to prosecute for

certain offenses and Phenix receiving a sentencing enhancement based on the

circumstances of the events surrounding the Indictment. The Government’s

pursuit of a sentencing enhancement does not breach a promise not to file

additional criminal charges. United States v. Peck, 496 F.3d 885, 889 (8th Cir.

2007). In Peck, the appellant argued that pursuing sentencing enhancements

“effectively” constitutes filing additional charges. Id. The Eighth Circuit rejected

the argument because “there is no way to file criminal charges ‘effectively.’ They

are either filed or they are not.” Id. Here, as in Peck, the Government did not file

additional charges but instead, pursued only a sentencing enhancement. This was

not a breach of the plea agreement nor prosecutorial misconduct.

Further, while under oath during the plea hearing, Phenix acknowledged that

he had reviewed the plea agreement, discussed the plea agreement with his

counsel, and that he understood everything in the plea agreement. [Doc. 68 at 13].

He also acknowledged “having voluntarily entered into both the plea agreement

and guilty plea.” [Id. at 10]. The sentencing enhancement is clearly stated and

agreed to in the plea agreement. [Doc. 37 at 5]. Thus, the plea agreement and his

testimony during the plea hearing contradict the allegations he now makes.

Based on the record, Phenix has not demonstrated deficient performance by

defense counsel, or that he suffered any prejudice related to counsel’s performance

with regard to the sentencing enhancement in the plea agreement.

B. Acceptance of responsibility reduction

Phenix argues the Government breached the plea agreement and committed

prosecutorial misconduct because, despite an agreement that he would receive a

three-level reduction based on his acceptance of responsibility, he received the

maximum sentence of ten years. He claims that he did not receive the promised

reduction for acceptance of responsibility. [Doc. 6 at 28]. To the contrary, the

PSR shows that Phenix received a three-level reduction for acceptance of

responsibility. [Doc. 46 at 6].

More to the point, Phenix claims the promised reduction was illusory

because he received the maximum sentence. There is no promise or guarantee in

the plea agreement as to what effect, if any, the reduction will have on the

guideline range or his sentence. [Doc. 37 at 5]. If Phenix had a criminal history

category of I-IV, with the three-level reduction and a total offense level of 27, the

minimum of the guideline range would have been less than 120 months. See

Federal Sentencing Guidelines Sentencing Table, Ch. 5, Pt. A, 18 U.S.C.A., FSG

Ch. 5, Pt. A. However, Phenix’s total criminal history score was 19, which

established a criminal history category of VI. [Id. at 9]. Phenix was well aware of

his own lengthy criminal history and acknowledged in the plea agreement that the

sentencing range would be determined by the Court based on the total offense level

and the criminal history category. [Doc. 37 at 4].

Accordingly, there is no breach of the plea agreement, no prosecutorial

misconduct, and his claim that defense counsel was ineffective for failing to make

sure he received the reduction is without merit.

C. Failure to File an Appeal

Phenix asserts defense counsel was ineffective for failure to object to and

appeal prosecutorial misconduct based on a “contradictive” plea agreement, breach

of the plea agreement, and the fact that he did not receive a three-level reduction

for acceptance of responsibility. This allegation implicates counsel’s obligation to

file a notice of appeal.

The United States Supreme Court addressed an attorney’s obligation to file a

notice of appeal in Roe v. Flores–Ortega, 528 U.S. 470 (2000). Under Flores–

Ortega, courts conduct a two-step analysis to determine whether an attorney’s

failure to file a notice of appeal was ineffective. Id. at 477–78. Under the first

step, a court must determine whether a criminal defendant specifically instructed

his attorney to appeal. Id. at 477. Here, Phenix does not claim that he specifically

requested defense counsel to file an appeal, he suggests only generally that counsel

should have appealed. On this basis, he fails to establish ineffective assistance of

counsel for failure to file an appeal under the first step. See e.g. United States v.

Luke, 686 F.3d 600, 606 (8th Cir. 2012) (recognizing that failure to file an appeal

constitutes ineffective assistance of counsel for the purposes of § 2255 where the

client specifically instructed counsel to file an appeal).

The second step applies when a defendant does not specifically instruct his

attorney to appeal. “Where a defendant has not specifically requested an appeal,

the reasonableness of counsel’s conduct is judged by whether counsel had a duty to

consult the client about the possibility of an appeal.” Watson v. United States, 493

F.3d 960, 964 n.1 (8th Cir. 2007) (citing Roe v. Flores-Ortega, 528 U.S. 470, 480

(2000)). “This duty is triggered where there is reason to believe that a rational

defendant would want to appeal or where the client has reasonably demonstrated

an interest in appealing.” Id. In making this determination, a court may consider

whether a conviction followed a trial or a guilty plea, whether a defendant received

the sentence he bargained for as part of a plea deal, and whether a defendant

expressly reserved or waived some or all of his appellate rights. Flores–Ortega,

528 U.S. at 480.

Phenix’s sentencing followed a guilty plea, which the record demonstrates

was voluntary. He was sentenced in accordance with the plea agreement. When

questioned by the Court during the plea and sentencing hearings, he did not raise

any issues or concerns. Defense counsel filed a Notice of Compliance with Local

Rule 12.07(A) notifying the Court that “[d]efense counsel has explained to

defendant his/her right to appeal and defendant has not requested that counsel file a

Notice of Appeal.” [Doc. 55]. There is nothing in the record to suggest that a

rational defendant would want to appeal or that Phenix reasonably demonstrated an

interest in appealing. Based on the record, defense counsel’s conduct was

reasonable.

D. Conclusion

Based on the record, for Ground 1, Phenix has not demonstrated deficient

performance by defense counsel, or that he suffered any prejudice related to

counsel’s performance. Nor do his allegations meet the heavy burden to overcome

his admissions during the plea hearing that he was satisfied with the way counsel

handled his case and that counsel had done everything he had asked him to do.

Ground 2: Defense counsel was ineffective for failing to investigate the case

and go over the case with Phenix.

Phenix claims defense counsel was ineffective for failing to notice the

inconsistencies in the plea agreement, failing to properly calculate the proper

sentencing guideline range, and failing to object at sentencing to an alleged

miscalculation of the guideline range. First, as discussed under Ground 1, supra,

the plea agreement was not inconsistent.

Next, Phenix’s claims regarding the improper sentencing guideline

calculation suggest that defense counsel failed to inform him of the likely

consequences of pleading guilty. Even if true, “[i]naccurate advice of counsel

about the sentencing guidelines or likely punishment does not render involuntary a

defendant’s decision to plead guilty, so long as the defendant is informed of the

maximum possible sentence permitted by statute and the court’s ability to sentence

within that range.” Walker v. United States, 810 F.3d 568, 578 (8th Cir. 2016)

(citation omitted). “[A] defendant’s reliance on an attorney’s mistaken impression

about the length of sentence is insufficient to render a plea involuntary as long as

the court informed the defendant of his maximum possible sentence.” United

States v. Granados, 168 F.3d 343, 345 (8th Cir.1999); see also Hollis v. United

States, 687 F.2d 257, 260 (8th Cir. 1982) (“a defendant cannot set aside a guilty

plea merely because he relied on his attorney’s opinion that the sentence would be

a lenient one”). “Where a defendant is invariably informed that the sentencing

decision rests solely in the discretion of the trial court, and where the defendant

states at the sentencing hearing that he understood the negotiated plea and that

there were no promises other than the plea agreement, the plea will not be set aside

as involuntary.” Hollis, 687 F.2d at 260 (cleaned up).

Here, the statutory penalties were set forth in the plea agreement. [Doc. 37

at 4]. And, the Court advised Phenix of the maximum possible sentence and that

his sentence would be entirely up to the Court during the plea hearing. [Doc. 65 at

10-12, 15]. Under questioning from the Court at the plea hearing, Phenix stated

that he understood the range of punishment and that the sentence to be imposed

was within the Court’s discretion. [Id.]. As a result, “[h]e cannot now be heard to

complain that he would not have pled guilty if he had known his sentence would be

more severe than his lawyer predicted. He specifically disclaimed that risk at his

change of plea hearing.” Bethel v. U.S., 458 F.3d 711, 718 (7th Cir. 2006).

Nor was Phenix prejudiced in any respect by his counsel’s advice to plead

guilty. He alleges the guilty plea was skewed in favor of the government and did

not have any benefit for him. This, however, is far from true. The Government’s

agreement not to prosecute Phenix for other changes was a substantial benefit.

Without the plea agreement, he could have received a longer sentence.

Prior to the plea agreement, the Government advised the Court and Phenix

that the Government’s investigation into the events on March 31, 2021, was

continuing and more charges could be forthcoming. [Docs. 22 at 2, 24 at 1-2, 26 at

2]. One of the charges that the Government agreed not to file in exchange for the

plea agreement – possession with intent to distribute crack cocaine – has a 20-year

maximum sentence. See [Government’s Response to § 2255 motion, Doc. 22 at

13]. Additionally, the Government could have charged Phenix with possessing a

firearm in furtherance of a drug trafficking crime which carries a 5-year mandatory

minimum sentence that must be served consecutively to any other sentence

imposed. [Id. citing 18 U.S.C. § 924(c)(1)(A)(i), (c)(1)(D)(ii)]. If the Government

had filed those charges, and Phenix had proceeded to trial and been convicted, the

guideline range would have been 168 months to 210 months, and the additional

consecutive the 60-month mandatory minimum for the § 924(c) offense. [Id. citing

U.S.S.G. § 5G1.2(a)].

Although Phenix argues the sentencing guideline calculation was incorrect,

there is no legal basis for his claim. Without any basis in fact or law, he claims

that the firearm charge should have carried a base offense level of “maybe 24” and

with a three-level reduction, his total offense level should have been 21. See

[Petitioner’s § 2255 motion, Doc. 6 at 28]. His wishful thinking does not support a

claim that the guideline calculation was incorrect.

Additionally, to the extent that Phenix suggests the sentence he received is

inconsistent with the plea agreement, he is incorrect. The parties agreed:

[T]hat because the Government will not charge Defendant with possession

with intent to distribute crack cocaine on March 31, 2021, neither party shall

request a sentence above or below the U.S. Sentencing Guidelines range

(combination of Total Offense Level and Criminal History Category)

ultimately determined by the Court pursuant to any chapter of the

Guidelines, Title 18, United States Code, Section 3553, or any other

provision or rule of law not addressed herein.

[Doc. 37 at 2]. Based on a total offense level of 27 and a criminal history category

of VI, Phenix’s sentencing guideline range was 130 to 162 months. [Doc. 46 at

33]. The statutory maximum term of imprisonment was 10 years of imprisonment

under 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). [Id.]. “Where the

statutorily authorized maximum sentence is less than the minimum of the

applicable guideline range, the statutorily authorized maximum sentence shall be

the guideline sentence.” U.S.S.G. § 5G1.1(a). As a result, the guideline sentence

was 120 months. The sentence Phenix received was consistent with the plea

agreement.

Phenix’s claim that counsel was ineffective by failing to investigate the case

is a reiteration of the claims that defense counsel failed to notice inconsistencies in

the written plea agreement and failed to properly advise him that the guideline

range would be the statutory maximum. [Doc. 6 at 30-31. Those issues are

addressed supra. To the extent Phenix is referencing some other alleged failure to

investigate with regard to the case, his allegations are insufficient.

To demonstrate prejudice in the context of a failure to investigate, the

movant must show specifically what would have been revealed by further

investigation and how the additional evidence would have made a different

outcome a reasonable probability. Palmer v. Clarke, 408 F.3d 423, 445 (8th Cir.

2005) (holding that the movant could not show prejudice because he had failed to

demonstrate specifically what further evidence would have been uncovered and

how it would have affected the outcome at trial).

Here, Phenix fails to articulate any exculpatory or mitigating evidence that

could have been discovered, let alone how that evidence would have affected the

guilt or sentencing phase. He does not identify any witnesses that defense counsel

should have interviewed, or any evidence counsel failed to gather. Instead, he

offers nothing more than the conclusory statement that counsel failed to investigate

the case.

Based on the record, for Ground 2, Phenix has not demonstrated deficient

performance by defense counsel, or that he suffered any prejudice related to

counsel’s performance. Nor do his allegations meet the heavy burden to overcome

his admissions during the plea hearing that he was satisfied with the way counsel

handled his case, that counsel had investigated to his satisfaction, and that counsel

had done everything he had asked him to do.

Ground 3: Defense counsel was ineffective for causing Petitioner to sign a guilty

plea agreement with the alleged deficiencies.

The predominant issue raised by Phenix is that he received no benefit from

the guilty plea because he received the maximum sentence. For this reason, he

claims defense counsel was ineffective. Phenix has not shown his counsel made

any errors to support his claim of ineffective assistance of counsel because he

received the maximum sentence. As discussed under Ground 2, supra, the

Government’s agreement not to prosecute Phenix for other charges was a

substantial benefit.

Further, to meet the second prong of the Strickland test, Phenix would have

to show there was a reasonable probability that, but for his counsel’s errors, he

would have received a sentence less than 120 months. See Coleman v. United

States, 750 F.3d 734, 739 (8th Cir. 2014) (quoting Jeffries v. United States, 721

F.3d 1008, 1014 (8th Cir. 2013) (stating that prejudice in the context of sentencing

is proven “by demonstrate[ing] a reasonable probability that his sentence would

have been different but for the deficient performance.”). “A reasonable probability

is a probability sufficient to undermine confidence in the outcome or a substantial,

not just conceivable, likelihood of a different result.” Meza-Lopez v. United States,

929 F.3d 1041, 1044-45 (8th Cir. 2019) (cleaned up). A “mere possibility of

prejudice” does not meet the actual prejudice threshold needed to establish an

ineffective assistance of counsel claim. See Prewitt v, United States, 83 F.3d 812,

819 (7th Cir. 1996) (defendant’s counsel’s failure to raise a § 5G1.3(c) motion

created only a possibility of prejudice and did not qualify as actual prejudice to

support an ineffective assistance of counsel claim). Here, Phenix offers nothing

but speculation that if he had gone to trial, he “may have been found not guilty.”

[Doc. 6 at 35].

Based on the record, for Ground 3, Phenix has not demonstrated deficient

performance by defense counsel, or that he was prejudiced by counsel’s

performance. In addition, his allegations do not meet the heavy burden to

overcome his admissions during the plea hearing that he was satisfied with the way

counsel handled his case.

Ground 4: Defense counsel was ineffective for failing to file pretrial motions

including a motion to dismiss the Indictment and a motion to suppress the

evidence.

Phenix claims defense counsel was ineffective for failing to file (1) a

motion to dismiss the Indictment and (2) a motion to suppress evidence. Failure to

file a pretrial motion does not alone establish ineffective assistance of counsel.

Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Where a claim of ineffective

assistance of counsel hinges on the failure of counsel to file a pretrial motion, a

petitioner cannot prove prejudice if there is no reasonable probability that the

motion would have been successful. DeRoo v. United States, 223 F.3d 919, 925

(8th Cir. 2000). It is well established that defense counsel cannot be ineffective for

failing to raise issues upon which a defendant would not have prevailed.

Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994) (“Counsel’s failure to

advance a meritless argument cannot constitute ineffective assistance.”)

A. Failure to file motion to dismiss

Under Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may file

a pretrial motion based on a defect in the indictment, including failure to state an

offense. Fed. R. Crim. P. 12(b)(3)(B)(v). On a motion to dismiss for failure to

state an offense, the Court must accept the allegations in the indictment as true and

determine whether the allegations form the basis of the charged offense. United

States v. Hansmeier, 988 F.3d 428, 436 (8th Cir. 2021). “An indictment is

generally sufficient unless it is so defective that it cannot be said, by any

reasonable construction, to charge the offense for which the defendant was

convicted.” United States v. Welker, 75 F.4th 820, 822 (8th Cir. 2023) (cleaned

up). “Whether an indictment sufficiently states an offense, then, depends on the

elements of the charged offense.” Id.

“There is no authority under Rule 12, however, to dismiss on the basis of a

sufficiency-of-the-evidence defense which raises factual questions.” United States

v. Brown, 481 F.2d 1035, 1041 (8th Cir.1973) (citations omitted). If an indictment

contains facially sufficient allegations, federal criminal procedure does not provide

for pre-trial determination of sufficiency of the evidence. United States v. Ferro,

252 F.3d 964 (8th Cir. 2001). A challenge to the sufficiency of the evidence is

reserved for trial – specifically a motion for acquittal under Federal Rule of

Criminal Procedure 29 – not by a “dismissal of an indictment on the basis of

predictions as to what the trial evidence will be.” United States v. Sholley-

Gonzalez, 996 F.3d 887, 893 (8th Cir. 2021).

Phenix claims defense counsel was ineffective for failing to file a motion to

dismiss the Indictment arguing that his criminal history does not fall within the

category of a violent felon that would trigger him to know it was unlawful for him

to possess a firearm. He relies on Rehaif v. United States, 588 U.S. 225 (2019) in

support of his claim. Phenix is mistaken as to what the Government must prove on

a charge of felon in possession of a firearm in light of Rehaif. The government is

not required to prove that a defendant knew he was prohibited from possessing a

firearm; it need only prove that a defendant knew that he belonged to the category

of persons barred from possessing a firearm. Rehaif, 139 S. Ct. at 2200. In other

words, “the government must prove that [the defendant] knew that he had been

convicted of a crime punishable by imprisonment for a term exceeding one year at

the time he possessed the firearms.” United States v. Bull, 8 F.4th 762, 770 (8th

Cir. 2021) (cleaned up).

Here, the Indictment charged:

Defendant herein, knowing he had previously been convicted in a court of

law of one or more crimes punishable by a term of imprisonment exceeding

one year, knowingly possessed a firearm that had traveled in interstate or

foreign commerce during or prior to being in defendant’s possession.

[Docs. 1, 2]. The language in the Indictment is legally sufficient on its face to

charge Phenix with a violation of 18 U.S.C. 21§ 922(g)(1) under Rehaif. There

was, therefore, no basis for the filing of a motion to dismiss the Indictment, and

counsel cannot be ineffective for failing to file a meritless motion.

B. Failure to File Motion to Suppress

Phenix claims defense counsel was ineffective for failing to file a motion to

suppress with regard to the search of the vehicle. In support of this claim, he offers

two arguments: (1) the officers had a warrant for him, not to search the car; and (2)

the motion would have been granted “as the government insist[ed] on not

prosecuting [him] for [the] drugs and drum magazine found in [the] car.” [Doc. 6

at 37-38]. Phenix does not offer any facts in support of his arguments, nor does he

dispute the facts in the record.

According to the undisputed facts, police were surveilling Phenix to arrest

him on active warrants and to take custody of three missing and endangered

children who were in the vehicle with him. [Docs. 37 at 3, 46 at 4, 68 at 16].

Police waited for him to exit his vehicle so that he could be arrested without

endangering the children. [Id.]. When he exited the vehicle, the firearm was

protruding from his right pant pocket and then he placed it in his armpit between

his left arm and torso. [Id.]. Phenix would not have prevailed on a motion to

suppress because the charge of possessing a firearm was not based on a search of

the vehicle.

To the extent Phenix suggests a motion to suppress should have been filed

with regard to the drugs and drum magazine found in the car, that was not relevant

to the § 922(g) charge. Setting that aside, the undisputed facts show that the drugs

and drum magazine were discovered when officers removed the three missing and

endangered children from the vehicle. [Doc. 46 at 5]. As such, a motion to

suppress would have been meritless.

The Court finds that Phenix cannot establish either prong of the Strickland

test: that his counsel’s failure to file a motion to suppress was conduct that fell

below the objective standard of reasonableness, or that he suffered prejudice as a

result.

Motion to Amend 28 U.S.C. § 2255 Motion

Phenix filed a motion to amend his § 2255 motion in which he claims that

his conviction under 18 U.S.C. § 922(g)(1) violates his Second Amendment rights.

[Petitioner’s Motion to Amend, Doc. 24]. In support of his claim, he relies on New

York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 24 (2022). [Id.].

A motion to amend a § 2255 motion filed before a district court renders

judgment is not barred as “second or successive.” U.S. v. Sellner, 773 F.3d 927,

931 (8th Cir. 2014). However, motions brought under § 2255 are subject to a one-

year limitations period. 28 U.S.C. § 2255(f)(1); Peden v. United States, 914 F.3d

1151, 1152 (8th Cir. 2019). Phenix’s sentence became a final judgment in January

2022. He did not file the motion to amend until December 2023, long after the

one-year limitations period. As a result, his motion is untimely under 28 U.S.C.

§ 2255(f)(1) unless the claim relates back to a timely filed motion as allowed by

Federal Rule of Civil Procedure 15(c). Taylor v. United States, 792 F.3d 865, 869

(8th Cir. 2015). Rule 15(c)(1)(B) provides that an “amendment to a pleading

relates back to the date of the original pleading when: ... the amendment asserts a

claim or defense that arose out of the conduct, transaction, or occurrence set out—

or attempted to be set out—in the original pleading[.]” Fed. R. Civ. P. 15(c)(1)(B).

Phenix contends that § 922(g)(1) is unconstitutional and his conviction is

therefore void based on the United States Supreme Court’s decision in Bruen. This

new claim challenging the constitutionality of § 922(g)(1) would not be supported

by a “common core of operative facts” as the ineffective assistance of counsel

claims raised in his § 2255 motion. See United States v. Holdford, No. 4:18-CR-

00278 KGB, 2024 WL 4350792, at *9 (E.D. Ark. Sept. 30, 2024). Therefore, his

amended motion does not relate back to date of the initial filing. See id.

The issue then becomes whether a new claim based on Bruen would be

timely under § 2255(f)(3), which applies the one-year limitations period from the

date the United States Supreme Court recognizes a new right and makes the right

retroactive on collateral review. 28 U.S.C. § 2255(f)(3). Bruen was decided on

June 23, 2022. Bruen, 597 U.S. at 1. The filing of Phenix’s motion to amend on

December 4, 2023 is more than one-year after the Bruen decision and, therefore, it

is also untimely under § 2255(f)(3).

Even if the motion to amend was timely filed, following the decision in

Bruen, the Eighth Circuit has concluded that the felon-in-possession statute is

constitutional and that there is “no need for felony-by-felony litigation regarding

the constitutionality of § 922(g)(1).” United States v. Jackson, 110 F.4th 1120,

1125 (8th Cir. 2024). As such, the Eighth Circuit’s decision in Jackson forecloses

the claim.3 See United States v. Lowry, 112 F.4th 629, 632 (8th Cir. 2024);

Gundersen v. United States, No. 24-1032, 2025 WL 251695, at *1 (8th Cir. Jan.

21, 2025).

CONCLUSION

For the reasons stated, the allegations in the § 2255 motion do not meet the

heavy burden to overcome Phenix’s admissions during the plea hearing that he

was satisfied with the way counsel handled his case, that counsel had investigated

to his satisfaction, and that counsel had done everything he had asked him to do.

3 Even if Phenix could bring an as-applied challenge to § 922(g)(1), his prior convictions

clearly demonstrate a history of violence and that he is dangerous. See United States v.

Jackson, 110 F.4th 1120, 1125 (8th Cir. 2024). His criminal history includes felony

convictions for Resisting Arrest (3), Possession of a Controlled Substance (2), Domestic

Assault 2nd Degree (2), Aggravated Stalking, Endangering the Welfare of a Child, and

Tampering with a Motor Vehicle. [Doc. 46. at 7-26]. He also has misdemeanor

convictions for Leaving Scene of an Accident, Engage Maintain Nuisance (6), Trespass

1st Degree (4), Domestic Assault 3rd Degree (3), Possession of a Controlled Substance,

and numerous traffic violations. [Id.]. In total, his criminal history included 36 cases with

several cases involving more than one charge. [Id.].

Phenix has not demonstrated any errors by defense counsel that fall outside the

wide range of reasonable professional assistance. Nor has he established any

prejudice that he suffered as a result of any alleged deficiencies in counsel’s

performance. As a result, his claims of ineffective assistance of counsel fail both

prongs of the Strickland test. And, because his allegations are conclusively

refuted by the record, inherently incredible, and based on speculation, Phenix is

not entitled to a hearing on the motion

CERTIFICATE OF APPEALABILITY

In a § 2255 proceeding before a district judge, the final order is subject to

review on appeal by the court of appeals for the circuit in which the proceeding is

held. 28 U.S.C. § 2253(a). However, unless a circuit judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals. Id.

§ 2253(c)(1)(B). A district court possesses the authority to issue certificates of

appealability under § 2253(c) and Fed. R. App. P. 22(b). Tiedeman v. Benson, 122

F.3d 518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of

appealability may issue only if a movant has made a substantial showing of the

denial of a constitutional right. Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2003); Tiedeman, 122 F.3d at 523. To make such a showing, the issues must be

debatable among reasonable jurists, a court could resolve the issues differently, or

the issues deserve further proceedings. Miller-El, 537 U.S. at 335-36.

Courts reject constitutional claims either on the merits or on procedural

grounds. “[W]here a district court has rejected the constitutional claims on the

merits, the showing required to satisfy § 2253(c) is straightforward: [t]he [movant]

must demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338

(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Having thoroughly reviewed the record in this case, the Court finds that

Phenix has failed to make a “substantial showing” of the denial of a constitutional

right. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). Therefore, a certificate

of appealability will not issue.

Accordingly,

IT IS HEREBY ORDERED that the Motion Under 28 U.S.C. § 2255 to

Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, [Docs. 1,

6], is DENIED without a hearing.

IT IS FURTHER ORDERED that the Motion to Amend 28 U.S.C.

§ 2255 Motion, [Doc. 24], is DENIED.

IT IS FURTHER ORDERED that this matter is DISMISSED with

prejudice.

IT IS FURTHER ORDERED that the Court will not issue a certificate

of appealability as to any of the claims raised in the § 2255 motion because

Phenix has not made a substantial showing of the denial of a constitutional right.

See 28 U.S.C. § 2253(c)(2).

Dated this 14"" day of March, 2025.

HENRY EDWARD a

UNITED STATES DISTRICT JUDGE

37