The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
Before the Court is Alicia Estabrook's "Motion to Vacate, Set Aside Or Correct Sentence Pursuant to Title 28 U.S.C. § 2255," filed on May 7, 2012. See Docket No. 52. For the reasons set forth below, the Court denies the motion.
On December 9, 2010, Estabrook was indicted on a charge of possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). See Docket No. 2. A superseding indictment was issued on January 12, 2011, adding a charge of possession of ammunition by a felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). See Docket No. 23. Prior felonies alleged to have been committed by Estabrook were listed in both the indictment and superseding indictment. See Docket Nos. 1 and 23. Estabrook pled guilty to felon in possession of a firearm. See Docket Nos. 29 and 35. In the plea agreement, Estabrook admitted she had three or more prior convictions for "violent felonies or serious drug offenses" for the purposes of the sentencing enhancement set forth in the Armed Career Criminal Act, 18 U.S.C. § 924(e). See Docket No. 29, p. 2. A 15-year mandatory minimum sentence applied based on the armed career criminal enhancement. 18 U.S.C. § 924(e). On September 26, 2011, the Court sentenced Estabrook to 15-years in prison and 36-months of supervised release. See Docket No. 49.
On May 7, 2012, Estabrook filed a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. See Docket No. 52. She sets forth the following bases for relief:
Ground 1: Counsel failed to argue that petitioner's sentence exceeds the maximum term of imprisonment for a possession of a firearm by a convicted felon
Ground 2: Counsel failed to articulate a favorable plea in light of Missouri v. Frye
Ground 3: Counsel failed to articulate to the court that petitioner sentence is based on §851 enhancement and armed career enhancement
Ground 4: Counsel failed to argue sentence is violation of Cunningham v. California
See Docket No. 52, p. 1 (emphasis and errors in original). The Government filed a response in opposition to Estabrook's motion on June 27, 2012. See Docket No. 54. Estabrook filed a reply on August 20, 2012. See Docket No. 58.
"28 U.S.C. § 2255 provides a federal prisoner an avenue for relief if [her] 'sentence was imposed in violation of the Constitution or laws of the United States, or . . . was in excess of the maximum authorized by law.'" King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28 U.S.C. § 2255(a)). This requires a showing of either constitutional or jurisdictional error, or a "fundamental defect" resulting in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962).
Estabrook contends that her defense counsel provided ineffective assistance of counsel. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel. U.S. Const. amend. VI; McMann v. Richardson, 397 U.S. 759, 770 n.13 (1970). To demonstrate ineffective assistance, a convicted defendant must show (1) defense counsel's performance was deficient and (2) the deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Estabrook pled guilty to the felon in possession offense, and the two-part Strickland test "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58 (1985).
A. COUNSEL FAILED TO ARGUE SENTENCE ...