USA v. Patterson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
William Randall Collins, 	)
)
Petitioner, 	) 	ORDER DENYING MOTION TO
) 	VACATE, SET ASIDE, OR
vs. 	) 	CORRECT SENTENCE
)
United States of America, 	) 	Case No. 3:19-cv-24
)
Respondent. 	)
___________________________________________________________________________
United States of America, 	)
)
Plaintiff, 	)
)
vs. 	) 	Case No. 2:09-cr-85-02
)
William Randall Collins, 	)
)
Defendant. 	)
___________________________________________________________________________
Before the Court is Defendant William Randall Collins’s motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 filed on filed on January 25, 2019. Doc. No. 289.
Following remand from the Eighth Circuit Court of Appeals, the Government responded to the
merits of the motion on February 1, 2021. Doc. No. 323. Collins filed a reply on March 23, 2021.
Doc. No. 329.
On July 22, 2021, the Court held an evidentiary hearing on Collins’s motion, which was
continued to, and concluded on, August 3, 2021. Doc. Nos. 332, 336. The parties submitted post-
hearing briefs on November 19, 2021. Doc. Nos. 341, 342. For the reasons below, the motion is
denied.
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I. 	BACKGROUND
On May 26, 2009, Collins robbed a bank in Gilby, North Dakota, with a sawed-off shotgun.
Doc. No. 309. He pleaded guilty to (1) bank robbery, in violation of 18 U.S.C. § 2113(a); (2) use
and carry of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §
924(c)(1); and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). Doc. Nos. 121, 309. The Court determined that Collins qualified for an
enhanced sentence under the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e). On
December 2, 2010, the Court imposed concurrent 235-month sentences on the bank robbery and
felon in possession offenses and a mandatory consecutive 84-month sentence on the § 924(c)
charge. Doc. No. 162. Collins did not pursue a direct appeal.
More than five years later, Collins moved to vacate his sentence under 28 U.S.C. § 2255.
Doc. No. 240. The motion relied on Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551
(2015), which invalidated the ACCA’s residual clause as unconstitutionally vague. Collins
contended that he no longer met the criteria for an ACCA enhancement and that his § 924(c)
conviction rested on similarly vague statutory language. The Court agreed with the first argument
but rejected the second. Doc. No. 269. Accordingly, the Court set the matter for a resentencing
hearing. Id.
Prior to resentencing, Collins, through then Federal Public Defender (“FPD”) Neil Fulton,
filed a “protective notice of appeal to ensure that his appeal from the district court’s order denying
relief on his § 924(c) claim is deemed timely.” Doc. No. 272. The Eighth Circuit Court of Appeals
remanded with instructions to rule on a certificate of appealability. Collins v. United States, No.
18-1004 (8th Cir. Jan. 2, 2018). Collins subsequently moved for a certificate of appealability on
the § 924(c) claim and requested the motion be held in abeyance until resentencing. Doc. Nos.
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275, 276. From that point forward, then Assistant Federal Public Defender Wm Dane DeKrey
assumed the representation of Collins. Doc. No. 270. Assistant Federal Public Defender Rachael
Steenholdt worked on Collins’s resentencing as well.1
On January 22, 2018, the day the resentencing hearing had been scheduled for, the parties
filed a stipulation with the district court for a new sentence. Doc. No. 279. The stipulation proposed
reduced concurrent sentences of 125 months on the bank robbery and felon in possession charges
and left the consecutive 84-month sentence on the § 924(c) offense unchanged. Id. Collins
consented to waive his right to a resentencing hearing. Id. The Court adopted the stipulation that
morning and directed entry of an amended judgment. Doc. No. 280. The Clerk of Court entered
an amended judgment consistent with the stipulation on January 24, 2018. Doc. No. 281.
The next day, chambers of the presiding judge sent an email to DeKrey and the prosecutor,
then First Assistant United States Attorney Keith Reisenauer. Doc. No. 324-1. The email requested
clarification as to whether the stipulation resolved the motion for a certificate of appealability on
the § 924(c) claim. Id. Reisenauer responded, “This should resolve all claims. Otherwise the
United States would not have entered into that stipulation.” Id. DeKrey responded to the email on
January 30, 2018, indicating it was the position of Collins that the stipulation did not resolve the §
924(c) claim and that “Collins wants to appeal.” Id. Chambers responded that the court intended
to vacate its order adopting the original stipulation and the amended judgment and would set a date
for resentencing. Id. After additional correspondence, chambers agreed to not enter the order until
DeKrey could speak with Collins and the United States. Id.
1 Notably, Collins’s ineffective assistance of counsel claim is as to DeKrey only, and not
Steenholdt.
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According to DeKrey, he then met with Collins on January 31, 2018 to discuss a new
stipulation. Doc. No. 338, p. 81; Doc. No. 324-3. Collins was upset and felt it was unfair that he
had signed off on an agreement and now the terms of the agreement and stipulation were changing.
Doc. No. 338, pp. 82-84. Part of the reason Collins was upset was because DeKrey and Steenholdt
proposed dismissing the pending § 924(c) claim and appeal. Id., pp. 19-20.
After meeting with Collins, DeKrey went to meet with Reisenauer. DeKrey recounted that
it was a “tough” negotiation. Doc. No. 338, p. 83. DeKrey tried to convince Reisenauer to go to
the middle of the recalculated advisory guidelines range and pointed out that Collins still had a
“really significant sentence.” Id., p. 84. However, Reisenauer refused to consider that offer, and
instead only offered the original recommendation of a stipulation for a sentence at the high end of
the revised advisory guideline range if Collins dropped his § 924(c) claim and appeal. Id.
The next day, DeKrey followed up with the district court and asked for additional time to
reach a resolution, which the court agreed to. Doc. No. 324-2. Eventually, on February 1, 2018,
DeKrey, Steenholdt, and Reisenauer met to discuss a stipulation, but Reisenauer’s position
remained unchanged. Doc. No. 338, p. 86. Steendholdt then met with Collins to relay Reisenauer’s
resentencing offer, which Collins “adamantly rejected.” Doc. No. 339, pp. 22-23.
During the February 1, 2018 meeting, Reisenauer had suggested that he, DeKrey,
Steenholdt, and Collins meet in person. Doc. No. 338, p. 86. DeKrey recalled that this was an
unusual suggestion, as he never had met with a client with an Assistant United States Attorney
present. Id., pp. 88-89. After internally discussing the idea from Reisenauer, DeKrey and
Steenholdt agreed it would be worth a try. Id. On February 5, 2018, Reisenauer, DeKrey,
Steenholdt, and Collins met in person at the Cass County Jail. Doc. No. 324; Doc. No. 324-3. Prior
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Reisenauer joining, DeKrey, Steenholdt, and Collins met, and DeKrey and Steenholdt told Collins
they would stand behind whatever decision he made. Doc. No. 339, p. 25.
When Reisenauer joined the meeting, DeKrey introduced everyone and let Reisenauer
speak first. Doc. No. 338, pp. 90-91. According to DeKrey, Reisenauer made his position
“abundantly clear,” that, without a stipulation, he would argue for a much high sentence and
believed he would get it. Id. To that end, DeKrey recalled Reisenauer referencing the underlying
facts of the robbery that would justify a high sentence. Id. He also recalled that Reisenauer made
clear the only deal he would offer was a recommendation of a sentence at the high end of the
advisory guidelines range, and Collins would drop his pending § 924(c) claim and appeal. Id.
DeKrey and Steenholdt both testified that Collins was surprisingly responsive to
Reisenauer and his offer. Id. By the end of the meeting, Collins agreed to Reisenauer’s offer and
agreed to drop his § 924(c) claim and appeal in exchange for the same sentence recommendation
from the United States. Id., p. 92; Doc. No. 324-2. When Reisenauer left, DeKrey and Steenholdt
again met with Collins. Doc. No. 338, pp. 92-93. DeKrey explained that he walked Collins through
the stipulation again to ensure he understood it. Id. As a part of that conversation, DeKrey told
Collins that he was getting the same sentence, but “if we do this, we drop the 924(c). We don’t
appeal it.” Id. DeKrey also reminded Collins he did not have to agree to the deal and did not
pressure him to take it. Id. Steenholdt said the same to Collins, and they left the final decision up
to Collins. Doc. No. 339, p. 26.
Collins ultimately made the decision to accept Reisenauer’s offer and the amended
stipulation. Doc. No. 338, p. 93. Collins said Reisenauer was very clear that if Collins did not agree
to a new deal, he would seek an upward departure at resentencing. Id., pp. 39-40. Collins testified
that he “didn’t want to go through with that upward departure thing.” Id., pp. 21-22. As to an
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appeal, Collins testified that he asked DeKrey after the meeting with Reisenauer if he could appeal.
Doc. No. 338, pp. 40-41. According to Collins:
I just asked him a simple question. I said: Look, we can appeal this right? He says
no. I said: Well, I want to appeal. No, I said: Okay, Then drop it. We’ll go to
something else. We’ll try something else.
Id. (emphasis added). Collins confirmed this was the only conversation he had with DeKrey that
discussed an appeal. DeKrey testified, “Collins did not ask me or say anything about an appeal.”
Doc. No. 338, pp. 93-94. Steenholdt also testified that Collins never expressed an intent to file an
appeal at any point during that meeting. Doc. No. 339, pp. 26-27.
On February 13, 2018, DeKrey met with Collins to execute an amended stipulation. Doc.
No. 338, p. 94-95; Doc. No. 324-3. DeKrey reviewed the terms of the amended stipulation with
Collins, and Collins did not express any desire to file an appeal. Id. Collins and DeKrey then
executed the amended stipulation. Id. However, after Collins and DeKrey had signed the amended
stipulation, Reisenauer made several edits to the stipulation. Id., pp. 97-98. Thus, DeKrey met with
Collins again on February 22, 2018 to go over the revised amended stipulation. Id. DeKrey
explained the changes and reminded Collins of the terms and effects of the stipulation. Id. Collins
signed the amended stipulation again. Id. DeKrey testified that Collins did not direct him to file
any appeal. Id.
The amended stipulation was filed on February 23, 2018. Doc. No. 282. Effectively, in
exchange for dismissing his § 924(c) claim and appeal, the parties agreed to the same sentence in
the original stipulation: 125 months on counts one and four to run concurrently, with 84 months
on count two to run consecutively. Id. The court adopted the stipulation but did not enter an
amended judgment after consulting with the parties. Doc. No. 283.
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On March 2, 2018, Collins met with DeKrey and signed a consent to dismiss his pending
§ 924(c) appeal. Doc. No. 338, pp. 100-01; Doc. No. 324-3. Collins did not direct DeKrey to file
an appeal during this meeting. Id. On March 6, 2018, the FPD filed a motion to dismiss the appeal,
along with Collins’s consent to dismiss the appeal. Collins, No. 18-1004 (8th Cir. Mar. 6, 2018).
The Eighth Circuit Court of Appeals entered a judgment dismissing the appeal the same day. Id.
In April 2018, Collins wrote a letter to DeKrey and Steenholdt, thanking them for their
work on his case and acknowledged he “did the right thing” by dropping his appeal and letting
other cases “push the issue.” Doc. No. 323-3. Collins praised DeKrey and Steenholdt for their
work and legal knowledge and asked to keep in touch with them in the future. Id.
II. 	DISCUSSION
A motion under 28 U.S.C. § 2255 affords relief “in several circumstances, including cases
shown to contain jurisdictional errors, constitutional errors, and errors of law.” Raymond v. United
States, 933 F.3d 988, 991 (8th Cir. 2019) (citing 28 U.S.C. § 2255(b)). “Habeas review is an
extraordinary remedy and will not be allowed to do service for an appeal.” Fletcher v. United
States, 858 F.3d 501, 505 (8th Cir. 2017) (quoting Jennings v. United States, 696 F.3d 759, 762
(8th Cir. 2012)). An evidentiary hearing is required unless the allegations in the motion are
inherently incredible, contradicted by the record, merely conclusory, or would not entitle the
petitioner to relief even if true. Roundtree v. United States, 751 F.3d 923, 926-27 (8th Cir. 2014).
The movant bears the burden to demonstrate an entitlement to relief. Golinveaux v. United States,
915 F.3d 564, 567 (8th Cir. 2019).
The Sixth Amendment guarantees a defendant the effective assistance of counsel at critical
stages of a criminal proceeding. Lafler v. Cooper, 566 U.S. 156, 165 (2012). To obtain relief on
an ineffective assistance of counsel claim, a petitioner must satisfy the two-prong test announced
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in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a petitioner must establish
constitutionally deficient representation, meaning counsel’s performance fell below an objective
standard of reasonableness. Harrington v. Richter, 562 U.S. 86, 104 (2011). Second, a petitioner
must demonstrate that prejudice resulted from the deficient representation. Wiggins v. Smith, 539
U.S. 510, 534 (2003).
Collins’s remaining § 2255 claim asserts that DeKrey failed to file a requested notice of
appeal from the amended judgment. If so, that would constitute deficient performance because “a
lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a
manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000).
Nonetheless, “[a] bare assertion by the petitioner that he made a request is not by itself sufficient
to support a grant of relief, if evidence that the fact-finder finds to be more credible indicates the
contrary proposition.” Walking Eagle v. United States, 742 F.3d 1079, 1082 (8th Cir. 2014)
(cleaned up). When counsel fails to file a notice of appeal as directed, “prejudice is presumed
because the defendant has forfeited his right to an appellate proceeding as a result of his counsel’s
error.” Watson v. United States, 493 F.3d 960, 963-64 (8th Cir. 2007) (citing Flores-Ortega, 528
U.S. at 483-84). Likelihood of success on appeal is irrelevant to the prejudice inquiry. Barger v.
United States, 204 F.3d 1180, 1182 (8th Cir. 2000).
At the evidentiary hearing, the Court heard conflicting testimony from Collins, on the one
hand, and DeKrey and Steenholdt, on the other. See Doc. No. 160. Collins testified that he
instructed DeKrey to file a notice of appeal, though he was unable to specifically recall when such
conversation took place. See Doc. No. 388. Collins also testified that he felt he was struck between
a “rock and a steel grid” when the original stipulation fell through. Id., p. 21. However, ultimately,
Collins admitted he accepted the resentencing offer from Reisenauer to avoid the possibility of an
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upward departure from the revised advisory guideline range, though he characterizes his
acceptance as “bowing out gracefully.” Id., pp. 9-23.
Meanwhile, DeKrey testified that he graduated from law school in 2016 and joined the
FPD as an Assistant Federal Public Defender in the fall of 2016. Id., pp. 58-59. Prior to joining
FPD, he had worked for two law firms. Id. Steenholdt testified that she joined the FPD in 2015 as
a Research and Writing Specialist, which is a position that largely focuses on appellate work. Doc.
No. 339, pp. 5-6. She previously worked at Advocates for Human Rights in Minneapolis,
Minnesota and is now an Assistant Federal Public Defender. Id.
DeKrey and Steenholdt both testified that Collins did not instruct them to file a notice of
appeal from the amended judgment. See generally Doc. Nos. 338, 339. In describing their meetings
and discussions with Collins, DeKrey and Steenholdt were clear and consistent that the § 924(c)
claim and appeal was the critical issue with the stipulation and resentencing and was the sole reason
the original stipulation fell through. Id. They were also clear and consistent in explaining to Collins
the risk of rejecting Reisenauer’s resentencing offer. Id. Both DeKrey and Steenholdt recalled that
Collins was surprisingly responsive to Reisenauer when the four of them met at the Cass County
Jail, and both recalled that Collins agreed to accepted Reisenauer’s resentencing offer and
withdraw his § 924(c) claim and appeal. Id.
Having observed the witnesses, the Court credits DeKrey’s and Steenholdt’s testimony,
particularly considering the record evidence supporting their testimony. When distilled to its core,
Collins’s testimony offered nothing more than inconsistent testimony that he instructed DeKrey
and Steenholdt to appeal the amended judgment. To be sure, Collins was understandably upset
when the original stipulation was withdrawn. But that alone is not enough to evince an intent to
appeal. See Green v. United States, 323 F.3d 1100, 1104 (8th Cir. 2003). Significantly here, the
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record is quite clear that the sole reason the original stipulation was withdrawn was because of
Collins’s outstanding § 924(c) claim and appeal. Collins’s decision to accept Reisenauer’s
resentencing offer and to execute the amended stipulation, along with his decision to sign the
consent to dismiss the § 924(c) appeal in the Eighth Circuit, supports that he understood his §
924(c) claim was waived and that he was unable to appeal.
Moreover, Collins offered no specific testimony or evidence that he instructed DeKrey and
Steenholdt to file a notice of appeal. To the contrary, Collins admitted he did not direct DeKrey to
file an appeal. Specifically, Collins testified:
I just asked him a simple question. I said: Look, we can appeal this, right? He says
no. I said: Well, I want to appeal. No, I said, Okay, Then drop it. We’ll go to
something else. We’ll try something else.
Doc. No. 338, pp. 40-41 (emphasis added). Additionally, Collins’s subsequent actions corroborate
his admission. After executing the amended stipulation, Collins, in the April 2018 letter, thanked
DeKrey and Steenholdt for their work and acknowledged that dropping the § 924(c) appeal was
the right decision. See Doc. No. 323-3. Nowhere in that letter did Collins inquire about filing any
appeal, the status of any appeal, or the outcome of any appeal. Id.
At the same time, the record and credible testimony from DeKrey and Steenholdt refute
the remaining any arguments concerning coercion that Collins attempts to present. Although
Collins suggests he was “bowing out gracefully” to appease Reisenauer, Collins’s own actions and
admissions prove otherwise. Collins agreed to accept Reisenauer’s resentencing offer and
knowingly signed the consent to withdraw his § 924(c) claim and appeal. After carefully assessing
the testimony and the record evidence, the Court rejects Collins’s assertion that he instructed
DeKrey to file a notice of appeal. Accordingly, Collins has failed to establish any constitutionally
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deficient representation, and as a result, his ineffective assistance of counsel claim must be denied.
See Harrington, 562 U.S. at 104.
III. 	CONCLUSION
The Court has reviewed the record, the parties’ filings, and the relevant legal authority. For
the reasons above, Collins’s motion to vacate, set aside, or correct sentence under 28 U.S.C. §
2255 (Doc. No. 289) is DENIED. This matter is hereby DISMISSED WITH PREJUDICE and
without an evidentiary hearing. The Court certifies that an appeal from the denial of the motion
may not be taken in forma pauperis because such an appeal would be frivolous and cannot be taken
in good faith. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Based upon the entire
record, dismissal of the motion is not debatable, reasonably subject to a different outcome on
appeal, or otherwise deserving of further proceedings. Therefore, the Court will not issue a
certificate of appealability. Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); Tiedeman v. Benson,
122 F.3d 518, 520-22 (8th Cir. 1997). If Collins desires further review of his motion, he may
request a certificate of appealability from a circuit judge of the Eighth Circuit Court of Appeals.
IT IS SO ORDERED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated this 30th day of December, 2021.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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