Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

MARCUS RAY NELSON, )

)

Petitioner, )

)

v. ) Case No. 1:24-cv-00011-SNLJ

)

UNITED STATES OF AMERICA, )

)

Respondent. )

MEMORANDUM AND ORDER

On January 26, 2024, Petitioner Marcus Nelson (“Nelson”) filed this Motion to

Vacate, Set Aside or Correct Sentence pursuant to Title 28, United States Code, Section

2255 [Doc. 1]. This Court then ordered the United States to show cause why the relief

requested in Nelson’s motion should not be granted. The government filed a response on

March 14, 2024 [Doc. 3]. Nelson did not file a reply. Based on the reasons set forth

below, this Court will dismiss Nelson’s claims as waived and procedurally barred or

otherwise deny them without an evidentiary hearing because they fail as a matter of law.

I. PROCEDURAL HISTORY

Petitioner Marcus Nelson and co-defendant Gino Wells were indicted by a federal

grand jury on one count of Conspiracy to Distribute 500 Grams or More of

Methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of

Aiding and Abetting Possession with Intent to Distribute 500 Grams or More of

Methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. United States

v. Marcus Ray Nelson, 1:19-cr-00145-SNLJ (“Crim. Case”), Docs. 1, 2.1 Wells entered a

plea of guilty pursuant to a cooperation agreement with the government and agreed to

testify against Nelson, who elected to proceed to trial by jury. The government called ten

witnesses and introduced forty-seven exhibits during the two-day trial. Crim. Case,

Docs. 191, 192 (transcript of the jury trial, or “Tr.”).

At the trial, Deputy Taylor Tinsley with the Dunklin County Sheriff’s Office

testified about an event occurring on December 10, 2018, where Nelson was driving a

sport utility vehicle (“SUV”) that was stopped for a traffic violation; Nelson and his front

seat passenger jumped out of the vehicle and fled on foot. Tr. at 120-21. After a brief

pursuit, both men were apprehended and taken into custody. Id. A subsequent search of

the SUV revealed a bag containing a half pound of methamphetamine and a firearm. Tr.

at 122-35; Govt. Ex. 1 and 3. The jury also heard jail calls related to this event where

Nelson attempted to have others “take” the charges for him. Tr. at 169-186; Govt. Ex. 9.

Detective Corey Mitchell with the Poplar Bluff Police Department and Task Force

Officer (“TFO”) for the Drug Enforcement Administration (“DEA”) testified that he

received information from a confidential source (“CS”) that a large shipment of

methamphetamine would be delivered to the residence of Gino Wells in Doniphan,

Missouri, on March 19, 2019. Tr. at 213. Mitchell and other law enforcement officers

responded to Wells’s residence to conduct a “knock and talk” to attempt to follow-up on

the CS’s information.

1 Nelson was also charged with a third count of Possession with Intent to Distribute Heroin. The jury acquitted him

of that charge.

Officers arrived at the residence, knocked on the front door, and were greeted by

Nelson’s girlfriend, Tambra Williams. Tr. at 216. Williams confirmed that Wells was

inside. Wells then exited the residence and began speaking with officers in the driveway.

Id. While officers were speaking with Wells, they heard a loud noise, “sounded like a

thud . . . basically something that fell and hit the ground,” coming from the side of the

residence. Tr. at 234. TFO Jason Morgan testified that he immediately responded to the

sound and discovered a black duffel bag lying on the ground. Id. TFO Morgan picked

up the bag and brought it to where Wells and the officers were speaking. Id. Officers

asked Wells if he knew what was in the bag, and he responded that it contained eleven

pounds of “ice,” a street term for crystal methamphetamine. Id. Wells further stated that

the bag was “light” and was supposed to contain fifteen pounds, of which Wells was

supposed to receive three pounds for distribution. Id.

Shortly after the bag was discovered, several subjects exited the residence,

including Marcus Nelson, Wells’s son (age 16), and Johnathan Morris. Tr. at 221, 280.

Nelson denied having any connection to the duffel bag. Morris informed officers that he

was a music producer who accompanied Nelson to the residence to film a rap video. Tr.

at 255, 280. Wells and Nelson were both arrested. Officers seized an AT&T flip phone

from Wells’s person. Tr. at 218-20; Govt. Ex. 15. Officers later obtained a search

warrant for the black duffel bag and discovered four large packages of

methamphetamine, totaling 5.28 kilograms and 333.57 grams of heroin. Tr. at 223-25;

Govt. Exs. 11, 12, 17, and 38.

Nelson’s residence was searched the following day. Tr. at 234. Tambra Williams

was present during the execution of the warrant. Tr. at 300-01. Officers seized various

items used in narcotics distribution. Tr. at 243-45. Officers located a firearm in a

bedroom safe but chose not to seize it after Ms. Williams claimed ownership. Tr. at 300-

01.

Gino Wells testified against Nelson at the trial. Wells acknowledged that his

cooperation agreement would include an unknown reduction in his sentence. Tr. at 319.

Wells provided extensive testimony about his relationship with Nelson, including how

they met years prior and began their drug-trafficking activities. Tr. at 333-35.

Regarding the December 2018 arrest, Wells testified that he met up with Nelson

the night prior at a strip club and Nelson advised Wells he was needing a half-slab

(referring to a half-pound of methamphetamine) to sell to someone down south. Tr. at

345-46. Wells agreed to “front” Nelson the half pound. Id. The next day, Tambra

Williams told Wells about the traffic stop in Dunklin County where Nelson was arrested.

Tr. at 348. Ms. Williams arranged a three-way call where Nelson assured Wells that he

would pay him back for the half pound of methamphetamine that was seized by police.

Tr. at 348-49.

Wells testified that Nelson was released from jail several days later and Nelson

began providing Wells with methamphetamine to distribute. Tr. at 355. Wells further

testified that Nelson had Mexican sources of supply in Texas that he referred to as the

“amigos.” Tr. at 356. Wells said Nelson provided him with an AT&T flip-phone to use

for their drug-trafficking activities. Tr. at 360-61. Later in the trial, Wells scrolled

through messages on the flip-phone and testified that a message from Nelson that stated:

“He’s sending 30,” referred to a thirty-pound shipment of methamphetamine that Nelson

was expecting from his suppliers in Texas. Tr. at 362, 366-67.

Wells testified that a week prior to the arrest on March 19, 2019, Nelson was

meeting with his Texas suppliers and Wells witnessed Nelson remove $30,000 from a

safe in Nelson’s bedroom that he placed in a grocery bag to pay his suppliers. Tr. at 379.

Wells further testified that Nelson expected to receive fifteen pounds of

methamphetamine in return. Id.

Wells testified that he and Nelson were together earlier in the day on March 19,

2019, when Nelson picked up the duffel bag from another individual. Tr. at 383. Wells

said he was initially supposed to get five of the fifteen pounds of methamphetamine but

since it was only eleven pounds, Nelson was going to him three, with the understanding

that Wells would pay him $3,800 per pound once it was sold. Tr. at 384, 389.

According to Wells, they ended up at his house that night because Nelson

previously made plans to shoot a rap video there. Tr. at 382, 389. Nelson brought the

duffel bag with him to feature the methamphetamine in the video. Tr. at 387. Wells

recounted the events from the moment police arrived, including his efforts to cooperate

immediately following his arrest. Tr. at 391. Finally, Wells testified that he received

approximately ten pounds of methamphetamine from Nelson between January and March

2019. Tr. at 392.

Wells’s son (age 16) testified that he was at the house the night his father and

Nelson were arrested. He testified that after his father went outside to speak to officers,

Nelson began “running around looking for a black duffel bag.” Tr. at 436. Wells’s son

further testified that he personally witnessed Nelson grab the bag and throw it out of a

window facing the woods, before stating, “Whoop, there’s your dad some more charges.”

Id.

In addition to calling ten witnesses and introducing forty-seven exhibits, the

government introduced a prior drug sale conviction from 2007 as 404(b) evidence. Tr. at

164-67; Govt. Ex. 21. The government rested its case. The defense announced that it

would not be presenting any evidence and moved for judgement of acquittal at the close

of the government’s case and at the close of all evidence, alleging insufficient evidence.

Tr. at 465-66.

Nelson’s closing argument focused largely on attacking Wells’s credibility,

referring to him as a “bought and paid for” “professional snitch” who could not be

believed. Tr. at 502-11. Nelson argued the text message, “He’s sending 30,” does not

say anything nor corroborate anything. Tr. at 502. Nelson speculated that Wells’s son

was responsible for throwing the duffel bag out of the window. Tr. at 506-07. As to the

December 10, 2018, arrest, Nelson suggested the traffic stop was pretextual and

questioned whether a traffic violation was even committed. Tr. at 510.

The jury began their deliberations at 5:06 p.m. and returned a verdict of guilty at

8:17 p.m. Tr. at 521; Crim. Case, Doc. 137. The Court accepted the verdicts and ordered

the United States Probation Office to prepare a presentence investigation report (“PSR”).

The PSR calculated Nelson’s sentencing guideline range at 360 months to life,

noting he was a Career Offender, but also noting that he had 16 criminal history points

that would make him a criminal history category VI regardless. Crim. Case, Docs. 158,

178 ¶¶ 98, 57, 58. The PSR included Nelson’s criminal history, including his five felony

convictions for controlled substance offenses. PSR ¶¶ 37, 42, 46, 48, 55.

Nelson objected to the PSR, noting that he was maintaining his innocence. Doc.

177. At sentencing, Nelson requested a downward variance and asked the Court to

impose a sentence of 218 months. Doc. 179. Nelson did not file a motion for new trial.

The government requested a sentence of 360 months, bottom of the sentencing guideline

range, as sufficient but not greater than necessary to satisfy the statutory purposes of

sentencing. Doc. 193 (“Sent. Tr.”) at 8-10.

This Court denied Nelson’s objection of innocence, stating: “The Court presided

over the trial, and the Court agrees with the verdict rendered by the jury in the case. And

the Court listened very intently, of course, to the evidence presented, and all those facts

were supported by the evidence. And the Court would have found just as the jury found

that evidence was established beyond a reasonable doubt.” Sent. Tr. at 3-4. The Court

imposed a sentence of 300 months imprisonment to be followed by a 5-year period of

supervised release. Sent. Tr. at 16.

Nelson appealed his convictions on September 29, 2021, raising two points on

appeal. Doc. 187. Nelson challenged the sufficiency of the government’s evidence,

claiming Wells was not a credible witness, and Nelson further argued that the text

message, “He’s sending 30,” constituted a Brady violation.2 The Eighth Circuit affirmed

2 Nelson’s challenge to the text message was not actually Brady material because the evidence was incriminating;

rather, the challenge should have been addressed as a Rule 16 violation. United States v. Nelson, 51 F.4th 813, 818

n.4 (8th Cir. 2022). Either way, the Eighth Circuit determined there was not substantial prejudice to Nelson. Id. at

819.

the convictions, holding the evidence was sufficient, and Nelson was not substantially

prejudiced by the introduction of the single text message. United States v. Nelson, 51

F.4th 813 (8th Cir. 2022).

Nelson has now filed this Motion under Rule 28 U.S.C. § 2255, asking this Court

to set aside his convictions and sentence. Doc. 1. Nelson alleges several grounds or

errors in his ineffective assistance of counsel claim to include the following:

1. Counsel was ineffective for failing to pursue an alibi defense;

2. Violations to his First, Fourth, Fifth, Sixth, and Eighth Amendment rights;

3. Counsel was ineffective for failing to file a motion to suppress, to include:

a. Failing to interview witnesses,

b. Failing to challenge the search and seizure as illegal,

c. Failing to challenge the witnesses’ credibility, and

d. Failing to suppress evidence that violated Brady;

4. Counsel was ineffective for failing to object to both the sentence imposed and a

firearm enhancement.

Because Nelson’s claims fail as a matter of law, the Court will dismiss the motion

without a hearing.

II. LEGAL STANDARD

“Section 2255 was intended to afford federal prisoners a remedy identical in scope

to Federal habeas corpus.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011)

(en banc) (quotation omitted). And like habeas corpus, this statutory remedy “does not

encompass all claimed errors in conviction and sentencing.” Id. (quoting United States v.

Addonizio, 442 U.S. 178, 185 (1979)). Under section 2255(a), a petitioner may file a

motion for post-conviction review on four specified grounds: “(1) ‘that the sentence was

imposed in violation of the Constitution or laws of the United States,’ (2) ‘that the court

was without jurisdiction to impose such a sentence,’ (3) ‘that the sentence was in excess

of the maximum authorized by law,’ and (4) ‘that the sentence is otherwise subject to

collateral attack.’” Martin v. United States, 150 F.Supp. 3d 1047, 1049 (W.D. Mo. 2015)

(quoting Hill v. United States, 368 U.S. 424, 426-27 (1962)). 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) (citation omitted).

A. Claims Alleging Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a petitioner has the

burden of proving his or her claims by a preponderance of the evidence. The United

States Supreme Court set forth the standard to apply in Strickland v. Washington, 466

U.S. 668 (1984). First, a petitioner must prove that counsel’s performance was so

deficient that counsel was not functioning as the counsel guaranteed by the Sixth

Amendment. Id. at 687. As to the “deficiency” prong, the petitioner must show that

counsel “failed to exercise the customary skills and diligence that a reasonably competent

attorney would [have] exhibit[ed] under similar circumstances.” Cheek v. United States,

858 F.2d 1330, 1336 (8th Cir. 1988); (quoting Hayes v. Lockhart, 766 F.2d 1247, 1251

(8th Cir. 1985)). Second, petitioner must show that petitioner was prejudiced by

counsel’s errors, and but for counsel’s errors the result of the proceeding would have

been different. Strickland, 466 U.S. at 687. Where a reviewing court determines that the

challenged errors had no impact on the result of the proceedings, the ineffectiveness

claim fails. Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000). Where

petitioner cannot affirmatively prove prejudice, the performance prong need not be

addressed. Boysiewick v. Schiro, 179 F.3d 616, 620 (8th Cir. 1999) (citing Pryor v.

Norris, 103 F.3d 710 (8th Cir. 1997)).

B. Need for Evidentiary Hearing

A motion filed under 28 U.S.C. § 2255 should be denied without an evidentiary

hearing when the court records conclusively show that the petitioner is not entitled to

relief. A hearing is not required “where the claim is inadequate on its face or if the

record affirmatively refutes the factual assertions upon which it is based.” Anjulo-Lopez

v. United States, 541 F.3d 814, 817 (2008) (quoting Watson v. United States, 493 F.3d

960, 963 (8th Cir. 2007)). The Eighth Circuit has repeatedly recognized, “[a] § 2255

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.” Tinajero-Ortiz v. United States, 635 F.3d 1100, 1105 (8th

Cir. 2011) (quoting Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003)).

Conclusory allegations will simply not suffice. United States v. Robinson, 64 F.3d 403,

405 (8th Cir. 1995).

III. DISCUSSION

A. Counsel was not ineffective for failing to present an alibi defense.

Nelson’s first ground for relief asserts that trial counsel was ineffective for various

failings in pursuing an alibi defense, to include: failure to conduct a meaningful

investigation to discover an alibi defense; failure to present an alibi defense at trial;

failure to find independent, objective sources to support his testimony; failure to present

evidence of his innocence, including evidence that undermines the government’s case;

and failure to reasonably investigate before settling on a trial strategy. Nelson’s

ineffectiveness claim fails because it is without adequate factual support.

It is a petitioner’s burden to set forth adequate facts to establish that he is entitled

to relief, and failure to do so is fatal. See, e.g., LeCroy v. United States, 739 F.3d 1297,

1321 (11th Cir. 2014) (“the burden of proof . . . on a § 2255 petition belongs to the

petitioner”); Kress v. United States, 411 F.2d 16, 20 (8th Cir. 1969) (“In a § 2255

proceeding, the burden of proof with regard to each ground for relief rests upon the

petitioner[.]”). Petitioner’s claims must go beyond mere allegations and must not be so

incredulous as be unbelievable. “The subsequent presentation of conclusory allegations

unsupported by specifics is subject to summary dismissal, as are contentions that in the

face of the record are wholly incredible.” Blackledge v. Allison, 431 U.S. 63, 74 (1977).

Here, Nelson fails to explain what his alibi defense was, what witnesses or evidence

would support that defense, and what investigation counsel failed to do to proffer alibi as

a viable defense.

Nelson seemingly suggests that counsel was ineffective for failing to find an alibi

defense for him, “[c]ounsel, Jason Korner, failed to conduct a meaningful investigation

by which he would have discovered an alibi defense.” Doc. 1 (emphasis added). Nelson

claims that counsel, “failed to do a pretrial investigation into the availability of

independent, objective sources to support the part of his client’s testimony that he knows

or can reasonably expect will be challenged, and subsequently to present to the jury any

evidence he finds that tends to show his client’s innocence and tends to undermine the

prosecution’s case.” Id.

Nelson’s claim is difficult to decipher. Nelson truthfully did not have a viable

alibi defense for the events occurring on March 19, 2019, where he was present and

arrested at the scene of the crime. Every witness that testified provided an eyewitness

accounting of that fact, from law enforcement officers to Gino Wells and his son, to

Tambra Williams, Nelson’s girlfriend, who was with Nelson at Wells’s residence that

evening. Nelson’s claim that further investigation by counsel would have turned up this

alibi defense is clearly refuted by the record. Counsel was not ineffective for failing to

investigate a falsehood.

Unless a petitioner specifically explains what, in his view, counsel failed to

investigate, he cannot show that counsel was ineffective for failing to conduct that

investigation. See United States v. Robson, 307 F. App’x. 907, 911 (6th Cir. 2009)

(declining to review ineffectiveness claim because the record did not show what

information could have been further investigated or how it might have altered the

outcome of the case). “Counsel’s failure to investigate . . . may constitute ineffective

assistance, . . . particularly when an attorney fails to investigate a plausible alibi defense

. . . . [but absent] some objectively credible evidence to support an alibi defense, we

cannot fault [counsel] for choosing not to pursue [it],” especially where the petitioner

provided no information that would have suggested such an investigation. Cope v.

United States, 385 F. App’x. 531, 533-34 (6th Cir. 2010) (citation omitted); see also

Rompilla v. Beard, 545 U.S. 374, 383 (2005) (“[T]he duty to investigate does not force

defense lawyers to scour the globe on the off chance something will turn up . . . .”). It is

not enough for Nelson to argue his counsel was ineffective for failing to investigate and

pursue an alibi defense without tendering what that alibi defense was, identifying the

witnesses who would have supported the alibi defense or identifying what that

investigation might uncover.

Additionally, Nelson was convicted in Count I of Conspiracy to Distribute

Methamphetamine: “[b]eginning at a time unknown to the Grand Jury but including on or

about March 19, 2019 . . .” for which there is no alibi defense. Doc. 2. See United States

v. Agofsky, 20 F.3d 866, 871 (8th Cir. 1994) (“[s]ince a conspirator may be held liable for

acts of his co-conspirators, he may not assert an alibi defense); see also United Staes v.

Anderson, 654 F.2d 1264, 1270-71 (8th Cir. 1981), cert denied, 454 U.S. 1127, 102 S.Ct.

978, 71 L.Ed.2d 115 (1981), and cert. denied, 454 U.S. 1156, 102 S.Ct. 1030, 71 L.Ed.2d

314 (1982) (alibi defense not supported by law in drug conspiracy case where it was

unnecessary for government to prove defendant’s presence at the drug sales).

Turning now to Count II, this count does pertain to events occurring on a

particular day, March 19, 2019, for knowingly possessing with intent to distribute five

hundred grams or more of methamphetamine, to which an alibi defense might legally

apply. However, the overwhelming evidence against Nelson closes the door on arguing

he was anywhere but Wells’s residence on March 19, 2019, where the duffel bag of

methamphetamine was discovered. Wells was outside speaking with law enforcement

officers when the duffel bag was thrown from the window. The officers retrieved the bag

as soon as they heard it hit the ground. Tr. at 217. The bag was brought to Wells who

confirmed that it belonged to Nelson and contained eleven pounds of ice, of which he

was supposed to receive three. Id. Shortly after the bag hit the ground, Nelson exited

Wells’s residence and was taken into custody along with Wells. Tr. at 255, 280.

The jury heard testimony from Wells’s son that Nelson threw the bag and made

the comment, “Whoop, there’s your dad some more charges.” Tr. at 436. The Eighth

Circuit determined “Gino Wells provided ample testimony regarding Nelson’s drug

related activities.” Nelson, 51 F.4th at 818. Aside from Nelson and Wells, there was no

evidence to support that any other person at the residence was involved in narcotics

trafficking. There was no question that Nelson was present at the time and place the

police said he was present, along with the duffel bag containing methamphetamine.

Nelson’s assertions that counsel failed to pursue an alibi defense and find sources to

support it are meritless. “An attorney is not required to present a baseless defense or to

create one that does not exist.” Krist v. Foltz, 804 F.2d 944, 946 (6th Cir. 1986); Greer v.

Mitchell, 264 F.3d 663, 676 (6th Cir. 2001) (“by definition, . . . counsel cannot be

ineffective for failure to raise an issue that lacks merit”).

Nelson also criticizes counsel’s failure to “present to the jury any evidence he

finds that tends to show his client’s innocence.” Whether this is a claim of actual

innocence is not clear. What is clear is that Nelson fails to present any new evidence in

support of his innocence. For a claim of actual innocence to prevail, petitioner must

present new and reliable evidence that was not presented at trial and show that this new

evidence would change the outcome of the trial. Bannister v. Delo, 100 F.3d 610, 615

(8th Cir. 1996); see also Schlup v. Delo, 513 U.S. 298, 327-28 (1995) (after presenting

new evidence, the movant must establish that “it is more likely than not that no

reasonable juror would have convicted him in light of the new evidence”). Here, Nelson

presents no new evidence, rendering his suggestion of innocence simply not credible.

Nelson’s claim of ineffective assistance of counsel for failing to pursue alibi fails

as meritless. Nelson is entitled to no relief for ground one of his § 2255 motion.

B. Nelson’s claim that his conviction and sentence violated his First, Fourth, Fifth,

Sixth, and Eighth Amendment rights is insufficiently pled and procedurally

defaulted.

Nelson’s second ground for relief is a blanket statement that his constitutional

rights under the First, Fourth, Fifth, Sixth, and Eighth Amendments were violated.

Nelson fails to explain how. Nelson states the following: “Mr. Nelson’s conviction and

sentence are violative of his right to freedom of speech and to petition, his right to be free

of unreasonable search and seizure, his right to due process of law, his right to counsel, to

confrontation of witness, to present a defense, and to compulsory process, and his right to

be free of cruel and unusual punishment under the constitution.” Doc. 1. Nelson states

conclusions unsupported by a single fact. Nelson fails to explain how his rights were

violated nor offer any guidance for how these constitutional provisions impacted his

conviction and sentence. Nelson’s second ground for relief is inadequate on its face.

“[A] habeas petitioner must do more than proffer gauzy generalities or drop self-serving

hints that a constitutional violation lurks in the wings.” David v. United States, 134 F.3d

470, 478 (1st Cir. 1998); see also Wogenstahl v. Mitchell, 668 F.3d 307, 335 (6th Cir.

2012); Short v. United States, 504 F.2d 63, 65 (6th Cir. 1974) (holding that if “claims are

stated in the forms of conclusions without allegations of fact in support thereof,” a § 2255

motion is “legally insufficient”); O’Malley v. United States, 285 F.2d 733, 735 (6th Cir.

1961) (“Conclusions, not substantiated by allegations of fact with some probability of

verity, are not sufficient to warrant a hearing.”).

Additionally, Nelson’s claim that his constitutional rights were violated is

procedurally defaulted. Any claim that could have been raised on direct appeal, but was

not, is deemed procedurally defaulted. Bousley v. United States, 523 U.S. 614, 621

(1998) (“[E]ven the voluntariness and intelligence of a guilty plea can be attacked on

collateral review only if first challenged on direct review.”). Failure to raise a claim on

direct appeal is overcome only by showing good cause and actual prejudice or actual

innocence. Id. at 622; United States v. Frady, 456 U.S. 152, 167-68 (1982). The hurdle

is “intentionally high . . . , for respect for the finality of judgments demands that collateral

attack generally not be allowed to do service for an appeal.” Elzy v. United States, 205

F.3d 882, 884 (6th Cir. 2000). Ordinarily, an external impediment preventing petitioner

from having raised the claim earlier is required. Murray v. Carrier, 477 U.S. 478, 492

(1986). Until cause is shown, prejudice need not be addressed. Bousley, 523 U.S. at 623.

Nelson raised none of the constitutional challenges in his direct appeal, and no

cause exists for this Court’s consideration now. Nelson’s claim fails as insufficiently

pled and procedurally defaulted. Nelson is entitled to no relief for ground two of his

§ 2255 motion.

C. Counsel was not ineffective for failing to suppress illegally obtained evidence.

Nelson’s third ground for relief is difficult to decipher and packs several unrelated

issues into a single ineffectiveness claim, including: (1) failure to interview corroborating

witnesses; (2) failure to seek suppression of illegally obtained evidence; (3) failure to

attack government witness credibility; and (4) failure to suppress evidence in violation of

Brady. Unfortunately, there is no indication as to what witnesses counsel failed to

interview, what evidence was illegally obtained, what witnesses’ credibility counsel

failed to attack, or what evidence counsel failed to suppress in violation of Brady.

Nelson’s failure to meet his burden of proof for these claims make this ground for relief

particularly difficult to address.

Claims of ineffective assistance of counsel require petitioner to identify specific

acts or omissions which reveal that counsel did not provide “reasonably effective

assistance,” Strickland, 466 U.S. at 687, as measured by “prevailing professional norms.”

Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is strongly presumed to have

provided effective assistance, and the petitioner has the burden to show otherwise.

Strickland, 466 U.S. at 689. “Counsel is constitutionally ineffective only if performance

below professional standards caused the defendant to lose what he otherwise would have

won . . . [T]he threshold issue is not whether [counsel] was inadequate; rather, it is

whether he was so manifestly ineffective that defeat was snatched from the hands of

probable victory.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992) (en banc)

(emphasis in original; internal citation omitted).

1. Failure to call witnesses

Nelson’s claim Nelson’s claim that counsel failed to interview corroborating

witnesses, without more, is fatally insufficient. See, e.g., LeCroy v. United States, 739

F.3d 1297, 1321 (11th Cir. 2014) (“the burden of proof . . . on a § 2255 petition belongs

to the petitioner” who must set forth adequate facts to establish he is entitled to relief, and

failure to do so is fatal). First, Nelson fails to disclose what witnesses he is referring to.

Second, Nelson fails to disclose what those witnesses would corroborate. Without

providing any explanation as to who those witnesses are or what those witnesses might

say makes them nothing more than imaginary and renders this claim meritless.

Additionally, decisions about what witnesses to call are quintessentially matters of trial

strategy, requiring a petitioner to overcome a strong presumption that counsel’s decision

not to call a particular witness was strategic and reasonable. Bentley v. Motley, 248 F.

App’x. 713, 718 (6th Cir. 2007) (review of such choices is “highly deferential”). The

Eighth Circuit has held, “a reasoned decision not to call a witness is a virtually

unchallengeable decision of trial strategy, in part because there is a considerable risk

inherent in calling any witness because if the witness does not hold up well on cross-

examination, the jurors might draw unfavorable inferences.” Rodela-Aguilar v. United

States, 596 F.3d 457, 464 (8th Cir. 2010) (internal quotations omitted).

Additionally, failure to provide the identity and affidavits of the expected

testimony of alleged exculpatory witnesses are fatal to claims of ineffectiveness.

Armstrong v. Kemna, 534 F.3d 857, 867-68 (8th Cir. 2008) (quoting Harris v.

Quarterman, 496 F.3d 419, 428 (5th Cir. 20078) (“[o]rdinarily, a defendant’s failure to

present some evidence from the uncalled witness regarding that witness’s potential

testimony . . . would be fatal to an ineffective assistance of counsel claim”) (citations

omitted)). Nelson’s failure to disclose what witnesses counsel failed to interview and

failure to disclose what those witnesses might testify to, makes this claim impossible to

address. The Court is left to presume this was a matter of trial strategy. Nelson fails to

overcome the strong presumption that this decision was not both strategic and reasonable.

Purported testimony that is merely of hypothetical or remote benefit to the defense is

insufficient to prove prejudice. Caban v. United States, 281 F.3d 778, 786 (8th Cir.

2002).

2. Failure to file a motion to suppress

There was no motion to suppress in this case, and Nelson does not disclose what

evidence he deemed suppression worthy. “[F]ailure to bring a meritless suppression

motion cannot constitute ineffective assistance.” Brown v. McKee, 231 Fed.Appx. 469,

475 (6th Cir. 2007) (quoting United States v. Tisdale, 195 F.3d 70, 73-74 (2d. Cir.

1999)); see also United States v. Johnson, 707 F.2d 317, 320 (8th Cir. 1983).

Nelson claims ineffectiveness for failure to suppress “physical evidence” but does

not say what physical evidence counsel failed to suppress, leaving either the narcotics

found in the duffel bag on March 19, 2019, or the firearm and drug paraphernalia found

at his residence the following day.

The duffel bag that was thrown from the window of the residence was abandoned

property that Nelson no longer had a reasonable expectation of privacy in. United States

v. Crumble, 878 F.3d 656, 659 (8th Cir. 2018) (defendant does not have a reasonable

expectation of privacy in abandoned property). “A warrantless search of abandoned

property does not implicate the Fourth Amendment, for any expectation of privacy in the

item searched is forfeited upon its abandonment.” United States v. Tugwell, 125 F.3d

600, 602 (8th Cir. 1997) (citations omitted); see also United States v. Nowak, 825 F.3d

946, 948 (8th Cir. 2016) (quotations and alterations omitted).

There is nothing unlawful in the government appropriating and seizing abandoned

property. Abel v. United States, 362 U.S. 217, 241 (1960); see also California v. Hodari,

499 U.S. 621, 629 (1991) (cocaine abandoned by subject running away from police after

a lawful order to stop was not fruit of the seizure once the officer was able to tackle

subject, making denial of subject’s motion to exclude the evidence proper); United States

v. Warren, 221 F.3d 1345 (8th Cir. 2000) (defendant objectively relinquished any

reasonable expectation of privacy in duffle bag after hanging it on a stranger’s fence and

walking away); United States v. Willis, 967 F.2d 1220, 1223 (8th Cir. 1992) (defendant

abandoned shopping bag by dropping it in parking lot with police in pursuit).

Nelson relinquished any reasonable expectation of privacy in the duffel bag by

throwing it out the window. Officers were well within their right to open the bag and

search its contents the moment it was abandoned at Wells’s residence, a property over

which Nelson had no Fourth Amendment standing.3

However, the officers did not do so. Rather, they went the extra step of obtaining

3 Nelson at least abandoned the bag, but the trial testimony suggests he was actually inviting a police search of the

bag. Wells’s son testified that when Nelson threw the bag out the window, he said, “Whoop, there’s your dad some

more charges.” Tr. at 436. The record supports the inference that he threw the bag out the window with the goal

that police would search the bag, find the controlled substances, and arrest Wells.

a valid search warrant based on probable cause before ever opening the duffle bag and

examining its contents. “A police officer has probable cause to conduct a search when

the facts available to him would warrant a person of reasonable caution in the belief that

contraband or evidence of a crime is present.” Florida v. Harris, 568 U.S. 237, 234

(2013) (internal quotations and citations omitted). Probable cause is all the Fourth

Amendment requires, and “[t]he test for probable cause is not reducible to ‘precise

definition or quantification.’” Id. at 243 (quoting Maryland v. Pringle, 540 U.S. 366, 371

(2003)). Rather, it is a practical, common-sense standard that “requires only a probability

or substantial chance of criminal activity, not an actual showing of such activity.”

District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (quoting Illinois v. Gates, 462

U.S. 213, 243-44)).

Probable cause for the search warrant of the duffel bag was abundant. Officers

initially responded to Wells’s residence based on information from a CS that a large

shipment of methamphetamine would be delivered to the residence in Doniphan,

Missouri, on that particular day, March 19, 2019. Tr. at 213. After officers heard the

“thud” of the bag hitting the ground, TFO Jason Morgan testified that he immediately

responded to the sound and discovered a black duffel bag lying on the ground. Tr. at 234.

TFO Morgan picked up the bag and brought it to where Wells and the officers were

speaking. Id. Officers asked Wells if he knew what was in the bag, and he responded

that it contained eleven pounds of “ice,” a street term for crystal methamphetamine. Id.

Wells further stated that the bag was “light” and was supposed to contain fifteen pounds,

of which Wells was supposed to receive three pounds for distribution. Id. Based on the

totality of the circumstances, there was certainly a fair probability that contraband or

evidence of a crime would be found inside the duffel bag. Illinois v. Gates, 462 U.S. 213,

238 (1983).

The same holds true for Nelson’s residence. Officers obtained a search warrant for

Nelson’s residence after finding 5.28 kilograms of methamphetamine and 333.57 grams

of heroin in the black duffel bag the day before, and after receiving information from

Wells describing his and Nelson’s drug-trafficking activities over the prior years. Tr. at

333-35. Again, there was more than a fair probability that evidence of narcotics

trafficking would be found at Nelson’s residence.

Nonetheless, even if either search warrant was found to be invalid or deficient in

some respect, the officers acted in good-faith reliance on their validity. In United States

v. Leon, 468 U.S. 897 (1984), the Supreme Court created a “good faith” exception to the

exclusionary rule. Evidence seized pursuant to a warrant that is later determined to be

invalid will not be suppressed, provided the officers executing the warrant acted in good-

faith reliance on its validity. “The good-faith inquiry is confined to the objectively

ascertainable question whether a reasonably well-trained officer would have known that

the search was illegal despite the [issuing judge’s] authorization.” United States v. Clay,

646 F.3d 1124, 1127 (8th Cir. 2011) (alteration in original) (citation omitted); see also

United States v. Kattaria, 553 F.3d 1171, 1179 (8th Cir. 20190) (noting that even if Court

were to hold search warrant affidavit failed to establish probable cause, suppression of

evidence would not be appropriate where defendant had not shown officers acted

unreasonably in carrying out the search).

3. Failure to challenge witness credibility

Nelson does not identify what witness or witnesses to whom he is referring for his

claim that counsel was ineffective for failing to attack “government witness credibility.”

However, in his appeal, Nelson raised a credibility challenge against Gino Wells’s

testimony and the testimony of Wells’s son. Assuming the same offenders are targeted

here, the Eighth Circuit reasoned, “Nelson argues that the testimony from Wells Sr. and

his son was self-serving, and therefore could not allow a reasonable jury to find him

guilty. However, ‘[w]hether a witness will receive a sentence reduction in exchange for

this testimony[] is relevant to assessing the witness’s credibility.’” Nelson, 51 F.4th at

818 (quoting United States v. Espino, 317 F.3d 788, 794 (8th Cir. 2003)).

Nelson’s counsel indisputably attacked Wells’s credibility during cross-

examination, extensively belaboring the promise of a sentence reduction and even

speculating that Wells was pinning the duffel bag on Nelson to protect his own son’s

involvement. Tr. at 397-409.

Beginning with an unrelated felony arrest, that was never charged in exchange for

cooperation, Nelson’s counsel questioned Wells:

Q: [Y]ou cooperated and did proactive controlled buys for [TFO] Scott

Johnston; is that correct?

A: Correct.

Q: Through that cooperation your felony charges were dismissed that time; is

that right?

A: Correct.

Tr. at 399-400.

Q: Why were you in that meeting with the Government? What were you trying

to get out of it?

A: Hoping for a reduction in my sentence.

Q: The same thing you’re here for today?

A: Correct.

. . .

Q: And you’re aware that you face in Counts 1 and 2 a mandatory minimum of

10 years up to life is your range of punishment; is that right?

A: Yes.

Tr. at 402.

Q: So the last time you cooperated you avoided any legal responsibility for it:

Would that be fair to say?

A: Correct.

Q: And certainly you would be hoping for as close to that this time as possible;

isn’t that right?

A: No, I wouldn’t expect that.

Q: Would it be fair to say that you want to go home as soon as possible?

A: Anybody in jail does.

Tr. at 403.

Q: Now, do you have an understanding of how you might receive time off of

your sentence for your cooperation here today?

A: I was told there might be a reduction in my sentence.

Q: Did they speak specifically about a 5K motion?

A: My lawyer had mentioned a 5K. He said that it enables the Judge to go below

a mandatory.

Tr. at 407.

Q: And you’re hoping for the best sentence possible; is that right?

A: Correct.

Q: And you’re trying to get home to see your children as soon as possible?

A: Yes, sir.

Q: Because you love your children dearly; correct?

A: Yes, sir.

Q: And cooperating working with the Government is how you see the best

path forward to getting home as soon as possible: Is that fair to say?

A: Possibly.

Q: Yes? Is that a yes?

A: It’s possibly. I haven’t been promised a reduction. I was told I may get a

reduction, so it’s possibly a way home, but it’s not a guaranteed way home.

Q: And you know you wouldn’t get a reduction if you didn’t cooperate;

correct?

A: No.

Q: Your only path to a reduction in your sentence is through you cooperation

and testimony here today; is that right?

A: Correct.

Tr. at 408.

Counsel also alluded to Wells cooperating to protect his own son from getting in

trouble, the following exchange took place:

Q: And certainly you did not want to see Gino, Junior, get in trouble the night

you were arrested at your house; correct?

A: What would he get in trouble for, sir?

Q: You wouldn’t want to see him get in trouble?

A: He hadn’t done anything.

Q: You wouldn’t want to see him get in trouble; is that fair to say?

A: I don’t see my son has done anything to get in trouble, sir. I’m not

understanding your question. No parent wants to see their children in

trouble, but my son did nothing wrong to get in trouble, so I don’t

understand what you’re saying.

Q: The question was very simple, and you kind of answered it a little bit there,

but the question simply was you didn't want to see Gino, Junior, get in trouble

at your house the night of March 19th, 2019; is that correct? Yes?

A: I’m not sure how you want me to answer that.

Q: You didn’t want to see him get arrested?

A: I have answered it as honestly as I can. My son had no reason to get in

trouble.

Q: You did not want to see him get arrested that night; correct?

A: For what?

Q: Please answer the question. It’s a very simple question.

A: I’m trying to answer it, sir. I’m not sure how you’re wanting me to answer

it. I’m answering it as honestly as I can. I don’t see why my son would

have been arrested. He was a 16-year-old kid.

Q: Yes or no you did not want to see your son get arrested March 19th, 2019?

A: No.

Tr. at 406-07.

Additionally, counsel primarily focused his entire closing argument on attacking

Wells’s credibility. Tr. at 502-11. Vehemently asserting that Wells’s testimony was

“bought and paid for” by the government, Wells Sr. was portrayed as a “professional

snitch” who simply could not be believed: “I told you during opening statements that this

case would be mostly about Gino Wells and his testimony and his credibility.” Tr. at

503-04. Counsel pleaded to the jury that the government had “better bring more than

Gino Wells and a bunch of jumbled jail calls” if it expected them to convict Nelson of the

charges. Tr. at 508. Counsel also attacked Wells’s son’s testimony, speculating that the

16-year-old was responsible for throwing the duffle bag out the window, despite there

being no evidence to support the allegation. Tr. at 506-07.

At the end of the day, “the jury was entitled to make credibility determinations and

reject [Nelson’s] theory of the case.” United States v. Chelabarge, 770 F.3d 714, 717

(8th Cir. 2014). The jury did so in this matter but not because of any failure on defense

counsel’s part.

4. Failure to suppress evidence to allow a Brady violation

Nelson’s claim here is presumably challenging counsel’s failure to suppress the

single text message, “He’s sending 30,” that was the subject of his appeal. Claims raised

and resolved on direct appeal should be deemed unreviewable in a § 2255 motion.

United States v. Shabazz, 657 F.2d 189, 190 (8th Cir. 1981); Dall v. United States, 957

F.2d 571, 572 (8th Cir. 1992) (per curiam); Bear Stops v. United States, 339 F.3d 777,

780 (8th Cir. 2003). The law of the case doctrine requires that the decisions by the

Eighth Circuit, handed down on direct appeal, remain undisturbed in subsequent

proceedings. Baranski v. United States, 515 F.3d 857, 861 (8th Cir. 2008).

Admittedly, in his appeal Nelson raised the issue strictly as a Brady violation and

not an ineffective assistance of counsel claim. Regardless, the Eighth Circuit held there

was no substantial prejudice to Nelson based on the admission of a single text message.

Likewise, here Nelson cannot prove prejudice.

As an initial matter, the Eighth Circuit determined the material was not Brady

material at all due to its incriminating nature. Nelson, 51 F.4th at 818. In footnote 4 of

the opinion, the Eighth Circuit noted, “[t]he parties agree that Brady is inapposite because

the text message at issue is in no way exculpatory.” Importantly, to prove a Brady

violation, “the defendant must show that the evidence was favorable and material” to the

accused. United States v. Anwar, 880 F.3d 958, 969 (8th Cir. 2018) (emphasis in

original) (citation omitted).

Since the text message was incriminating to Nelson, the Eighth Circuit examined

it under Rule 16 of the Federal Rules of Criminal Procedure, requiring the government to

disclose any relevant written or recorded statement made by the defendant and noted the

government conceded at oral argument that the text should have been disclosed prior to

trial. Nelson, 51 F.4th at 818-19. Determining the district court did not abuse its

discretion in admitting the text message, the Eighth Circuit found Nelson was not

substantially prejudiced by introduction of the single innocuous text message, and

parroted defense counsel’s closing argument, “th[e] text message . . . doesn’t say

anything. It doesn’t corroborate anything. It doesn’t say pounds. It doesn’t say

anything.” Id. at 819 (alteration in original).

The Court reasoned, “not every discovery violation requires exclusion of evidence.

‘A district court does not abuse its discretion in allowing the introduction of evidence

disclosed in a dilatory fashion unless that evidence substantially prejudiced the

defendant.’” Nelson, 51 F.4th at 819 (quoting United States v. Beck, 557 F.3d 619, 622

(8th Cir. 2009) (citation omitted).

Additionally, here counsel objected to admission of the text message. That the

district court allowed its admission over his objection does not make counsel ineffective.

Further, Nelson suffered no prejudice. To prevail on a § 2255 motion, a petitioner must

demonstrate “a reasonable probability that, but for [counsel’s acts or omissions], the

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

Williams v. Taylor, 529 U.S. 362, 391 (2000) (defining “reasonable probability [as] a

probability sufficient to undermine confidence in the outcome”). If the evidence of a

petitioner’s guilt is overwhelming, he cannot possibly establish prejudice, even if

counsel’s performance was deficient. Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir.

2001).

As to the deficiency prong, the petitioner must show that counsel “failed to

exercise the customary skills and diligence that a reasonably competent attorney would

[have] exhibit[ed] under similar circumstances.” Cheek v. United States, 858 F.2d 1330,

1336 (8th Cir. 1988) (quoting Hayes v. Lockhart, 766 F.2d 1247, 1251 (8th Cir. 1985))

(alteration in original). As to the prejudice prong, the petitioner must show that “there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Cheek, 858 F.2d at 1336 (quoting Strickland,

466 U.S. at 694).

“A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting Strickland, 466

U.S. at 694). “That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a

different result.” Cullen, 563 U.S. at 189 (quoting Harrington v. Richter, 562 U.S. 86,

112 (2011)).

Finding Nelson was not substantially prejudiced by introduction of the text

message, the Eighth Circuit resolved, “there was substantial evidence aside from the text

to otherwise prove Nelson’s guilt.” Nelson, 51 F.4th at 819. The reference to a single

cryptic text message stating “He’s sending 30,” could not have plausibly affected the

outcome of the trial. The government presented ten witnesses and introduced 47 exhibits

during the two-day trial. The evidence against Nelson was strong. The jury found the

testimony of Gino Wells and his son to be credible. The Wellses’ testimony was

corroborated by law enforcement testimony and the physical evidence introduced. The

jury also considered the events from the December 10, 2018, traffic stop, where Nelson

attempted to flee the scene, and law enforcement officers found a half pound of

methamphetamine and a firearm in his vehicle. The jury even heard recorded jail calls

where Nelson attempted to have others take the charges for him. Tr. at 117-35, 169-92.

In addition, the jury heard 404(b) evidence of Nelson’s prior drug sale conviction from

2007. Overall, there was overwhelming evidence supporting Nelson’s guilt. Nelson’s

claim here fails on its merits, as there was no Brady violation. It also fails for lack of

deficient performance, as counsel objected to admission of the text message. Finally, it

fails for lack of prejudice, as the single text message was not outcome determinative.

Nelson is entitled to no relief for ground three of his § 2255 motion.

D. Counsel was not ineffective for failing to raise objections to his sentence and to a

firearm enhancement.

Nelson was sentenced to a term of 300 months incarceration in the Federal Bureau

of Prisons. This sentence was a downward variance from Nelson’s sentencing guideline

range of 360 months to life. PSR ¶ 98. Nelson asked for a sentence of 218 months. Doc.

179. Defense counsel raised several objections to the PSR that were overruled at

sentencing. Doc. 193 (“Sent. Tr.”). Namely, objections were raised to the following:

Nelson’s determination as a career offender (Paragraph 30); the Offense Conduct section

(Paragraphs 7-18) as Nelson maintained his innocence; the amount of methamphetamine

involved in the conspiracy (Paragraph 24); and a four-level enhancement for Nelson’s

classification as a leader or organizer (Paragraph 27). Sent. Tr. 2-7. Objections were not

raised as to the sentence itself or to a two-level enhancement for possessing a firearm

during the commission of the offense pursuant to USSG § 2D1.1(b)(1). Nelson now

claims counsel was ineffective for failing to raise these additional objections. Nelson’s

claim is without merit.

As to the sentence itself, Nelson claims ineffectiveness for failing to object to its

legality. Nelson does not suggest how or why he believes his 300-month sentence is

illegal and only contests the two-point enhancement for the firearm. To adequately

address this claim, the Court will assume the two-level enhancement is its source.

Lending support, Nelson notes “the drugs [were] not in [his] home or property and the

firearm was not part of the charged offense.” Doc. 1. Nelson appears to be arguing since

there was no firearm located inside the duffel bag with the methamphetamine and heroin,

it was not part of the “charged offense” and should not be counted for enhancement

purposes.

Nelson fails to consider that even absent this two-level enhancement, his guideline

imprisonment range remains the same. Nelson was determined to be a Total Offense

Level 42 and a Criminal History Category VI, resulting in a guideline imprisonment

range of 360 months to life. PSR ¶ 98. If the two-level enhancement were removed,

Nelson would be a Total Offense Level 40 and a Criminal History Category VI, resulting

in a guideline imprisonment range of 360 months to life. U.S.S.G. Chp. 5, Pt. A.

Counsel was not ineffective for failing to object to an enhancement Nelson suffered no

prejudice over. Additionally, this Court showed Nelson lenient treatment and sentenced

him to a downward variance of 300 months.

Even if the two-level firearm enhancement would have affected his sentencing

guideline range; however, it would have survived an objection. The commentary for

U.S.S.G § 2D1.1(b)(1) states: “The enhancement for weapon possession in subsection

(b)(1) reflects the increased danger of violence when drug traffickers possess weapons.

The enhancement should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense. For example, the

enhancement would not be applied if the defendant, arrested at the defendant’s residence,

had an unloaded hunting rifle in a closet.”

Nelson’s PSR mentioned two firearms in the Offense Conduct Section. Doc. 178.

Paragraph 12 stated the following:

As to the relevant conduct of Marcus Nelson, Nelson organized and/or led a

conspiracy with the co-defendants to distribute over 500 grams or of

methamphetamine in the southeast Missouri area. On December 10, 2018,

deputies with the Dunklin County, Missouri Sheriff’s Office initiated a traffic

stop on a dark colored 2000 GMC Denali for a lane violation in Kennett,

Missouri. Two subjects fled from the vehicle. The suspects, later identified

as Marcus Nelson and Darius Thomas, were apprehended. Investigators

noticed a strong odor of marijuana coming from the vehicle. A search of the

vehicle located a black bag containing approximately 235 grams of

methamphetamine; a baggie containing 90 grams of marijuana; a German

Sports, Model: GSG-Five PK, .22 caliber pistol; two loaded magazines with

an unknown quantity of ammunition; various gun parts; and $103 in one

dollar Federal Reserve Notes. Nelson was found in possession of $1,040 in

United States currency and a Samsung cellular phone.

PSR ¶ 12.

Likewise, Paragraph 15 stated the following:

Further investigation determined Nelson was the head of a larger group of

individuals distributing methamphetamine on his behalf including but not

limited to Gino Wells, James Hamilton (unindicted in the Eastern District of

Missouri), Matthew Stout, and others including subjects identified as Missy

Cooksay (unindicted in the Eastern District of Missouri) and Mike Sheron

(unindicted in the Eastern District of Missouri). Nelson received

methamphetamine from his Dallas, Texas connections and then distributed

quantities to the aforementioned subjects. Investigation also determined

Nelson was distributing heroin and commonly carried firearms in relation to

his drug distribution, including a Taurus, Model: 709 Slim, nine-millimeter

caliber pistol located within the residence of one of Nelson’s drug

distribution conspiracy associates, James Hamilton, during a search

conducted by law enforcement on March 20, 2019.

PSR ¶ 15.

As Nelson was convicted in Count I of Conspiracy to Distribute 500 Grams or

More of Methamphetamine for events “[b]eginning at a time unknown to the Grand Jury

but including on or about March 19, 2019,” his relevant conduct of possessing firearms

and narcotics detailed above clearly warrant the two-level enhancement. No argument

exists that it was “clearly improbable” the aforementioned pistols were not connected to

the drug conspiracy. In fact, the December 10, 2018, traffic stop revealed a firearm and

two loaded magazines along with 235 grams of methamphetamine and 90 grams of

marijuana, just three months prior to the March 19, 2019 seizure of 5.28 kilograms of

methamphetamine and 333.57 grams of heroin. The same holds true of the Taurus 9mm

pistol that Nelson was known to carry, that was seized the following day from a co-

conspirator’s residence. Regardless, since the two-level enhancement did not affect the

sentencing guideline range, there was no prejudice to warrant relief. Nelson is entitled to

no relief for ground four of his § 2255 motion.

IV. CONCLUSION

For the foregoing reasons, this Court will deny Petitioner’s § 2255 motion [Doc.

1] without an evidentiary hearing.

IT IS FURTHER ORDERED that this Court will not issue a certificate of

appealability because Petitioner has not made a substantial showing of the denial of

federal constitutional right.

SO ORDERED this 13" day of March, 2026.

STEPHEN N. LIMBAUGH, JR.

SENIOR UNITED STATES DISTRICT JUDGE

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