Sorensen v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SHAWN RUSSELL SORENSEN,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
4:19-CV-04190-KES
ORDER GRANTING IN PART AND
DENYING IN PART RESPONDENT’S
MOTION TO DISMISS
Movant, Shawn Russell Sorensen, filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket 1.1 The United States
moves to dismiss the petition for failure to state a claim and for lack of subject
matter jurisdiction. Docket 26. The matter was referred to a United States
Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and this court’s October 16,
2014, standing order. The Magistrate Judge recommends that all of Sorensen’s
claims be dismissed except the claim that “his Arizona conviction is not a
proper predicate offense under 21 U.S.C. §§ 841(b)(1)(A), 851, and 802(44) and
that [his] trial and appellate counsel were ineffective for failing to raise this
issue.” Docket 42 at 101. The United States and Sorensen make numerous
1 Within this opinion the court cites to documents in Sorensen’s civil habeas
case by simply citing the court’s docket number for that document. The court
will cite to “CR” when citing to documents filed in Sorensen’s criminal case
found at United States v. Sorensen, 4:16-CR-40062-KES.
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 1 of 28 PageID #: <pageID>

2
objections. See Dockets 49, 50. For the following reasons, the court grants in
part and denies in part the United States’s motion to dismiss.
FACTUAL BACKGROUND
Sorensen was charged with conspiracy to distribute 500 grams or more
of a mixture or substance containing methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 846. CR Docket 1. Later, a superseding indictment was
filed, and it added one count of felon-in-possession of a firearm in violation of
18 U.S.C. § 922(g)(1). See CR Docket 70.
Court-appointed counsel, Clint Sargent, withdrew when Sorensen
retained private counsel. See CR Dockets 36, 37, 39, 40-41. The United States
filed an information under 21 U.S.C. § 851 giving notice of its intent to seek
increased punishment based on Sorensen’s prior felony drug convictions under
21 U.S.C. § 841(b)(1)(A), as defined in 21 U.S.C. § 802(44). CR Docket 66. The
convictions identified in the § 841 enhancement notice were: (1) a conviction in
Minnehaha County, South Dakota on December 2, 2002, for possession of a
controlled substance; and (2) a conviction in Mojave County, Arizona, on March
10, 2008, for transporting or selling a dangerous drug. See id.
A jury trial was held from October 4-6, 2016. CR Docket 137. The jury
convicted Sorensen on all counts of the superseding indictment. CR Docket 97.
After the trial but before sentencing, Sorensen terminated his trial attorneys
and retained his original attorney, Clint Sargent, to represent him at
sentencing. CR Dockets 108-110. Before sentencing, the United States filed an
amended information to clarify that the Arizona conviction was for possession,
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 2 of 28 PageID #: <pageID>

3
rather than transportation, of a dangerous drug. CR Docket 143. At
sentencing, the amended information was found to be permissible under 21
U.S.C. § 851(a)(1). CR Docket 157 at 5-7.
Sorensen was sentenced to life in prison, which was mandatory, because
of the effect of the United States’s § 851 information. CR Docket 148. The court
stated it “would not” have sentenced Sorensen to life imprisonment without the
enhancement. CR Docket 157 at 28. Without the enhancement, Sorensen’s
guideline range would have been 360 months (30 years) in custody. Id. On
count 2, possession of a firearm by a prohibited person, Sorensen was
sentenced to 10 years in custody to be served concurrently with the sentence
imposed on count 1. Docket 148 at 2.
After Sorensen appealed the conviction and sentence, a new attorney
represented him through the appellate proceedings. See United States v.
Sorensen, 893 F.3d 1060 (8th Cir. 2018). He raised four issues on direct
appeal, and the Eighth Circuit affirmed his convictions and denied his claims
on the merits. Id. at 1060-67. Now, Sorensen raises six grounds in support for
his petition under § 2255. Docket 1. The Magistrate Judge stated the claims
were:
1. 	Mr. 	Sorensen’s 	statutory 	sentencing 	range 	was 	improperly
enhanced to mandatory life under 21 U.S.C. §§ 841(b)(1)(A) and 851.
a. Arizona Conviction
b. South Dakota Conviction
2. Trial, sentencing, and appellate counsel were ineffective in failing
to challenge whether Mr. Sorensen’s South Dakota and Arizona drug
convictions qualified as “felony drug offenses” in violation of Mr.
Sorensen’s Sixth Amendment Rights.
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 3 of 28 PageID #: <pageID>

4
3. Trial counsel was ineffective in failing to investigate and present
at least two defense witnesses in violation of Mr. Sorensen’s Sixth
Amendment rights.
4. Trial counsel was ineffective in advising Mr. Sorensen to give up
his right to testify on his own behalf in violation of Mr. Sorensen’s
Sixth Amendment rights.
5. Mr. Sorensen’s life sentence for a drug offense violates his rights
under the:
a. Equal Protection Clause;
b. Eighth Amendment.
6. Mr. Sorensen’s conviction and sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and
924(a)(2) were imposed in violation of the laws of the United States
in light of Rehaif v. United States, 139 S. Ct. 2191 (2019).
Docket 42 at 9.
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In conducting its de novo
review, this court may then “accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 4 of 28 PageID #: <pageID>

5
DISCUSSION
I. 	Objections to Claims 1 and 2
Sorensen’s counsel did not raise on appeal the issue of whether his
Arizona and South Dakota convictions could be used to enhance his sentence.
Docket 42 at 18, 49. A movant’s claim is procedurally defaulted if he did not
raise the claim on direct appeal. See United States v. Frady, 456 U.S. 152, 167-
68 (1982); McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001). A district
court may address a procedurally defaulted claim if the movant shows (1) that
there was cause for the default and actual prejudice or (2) actual innocence.
Bousley v. United States, 523 U.S. 614, 622 (1998); McNeal, 249 F.3d at 749.
“Ineffective assistance of . . . counsel may constitute cause and prejudice
to overcome a procedural default.” Becht v. United States, 403 F.3d 541, 545
(8th Cir. 2005). In order to establish ineffective assistance of counsel, a
petitioner must meet the two-pronged standard articulated by the United
States Supreme Court in Strickland v. Washington. See 466 U.S. 668, 687
(1984). “First, the [petitioner] must show that counsel's performance was
deficient.” Id. This “performance prong” requires a petitioner to show that
counsel's representation was deficient and “fell below an objective standard of
reasonableness.” Id. at 687-88. To show deficiency, a petitioner must show
“that counsel made errors so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Ragland v.
United States, 756 F.3d 597, 599-600 (8th Cir. 2014) (quoting Strickland, 466
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 5 of 28 PageID #: <pageID>

6
U.S. at 687). This court must assess “whether counsel’s assistance was
reasonable considering all the circumstances.” Strickland, 466 U.S. at 688.
There is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). “Thus, a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690.
A. 	Arizona Conviction
The Magistrate Judge found that Sorensen met his burden to show there
is plausible evidence of ineffective assistance of counsel on the issue of his
counsel’s failure to object to the use of Sorensen’s Arizona conviction to
enhance his sentence. Docket 42 at 29-30. The Magistrate Judge stated that
the Mathis holding has been the law for 25 years and that Mathis was the “law
of the land 10 months before Mr. Sorensen’s sentencing.” Id. at 29; see Mathis
v. United States, 136 S. Ct. 2243 (2016). Here, the Magistrate Judge
recommends holding an evidentiary hearing on the issue. See Docket 42 at 30.
The United States objects and asserts that this a novel issue and that
counsel was not deficient. Docket 49 at 1. It states:
The government respectfully believes the analysis in the Report and
Recommendation 	misconstrues 	the 	question 	that 	was 	facing
Sorensen’s trial and appellate counsel. The question they faced was
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 6 of 28 PageID #: <pageID>

7
not whether Mathis . . . and the precursor cases on which it relied,
provided 	a 	pathway 	for 	defendants 	to 	challenge 	predicate
convictions generally. Instead, the question was whether Mathis
provided 	Sorensen 	a 	path 	to 	challenge 	his 	predicate 	Arizona
conviction. It is far from clear, even now, whether Mathis provided
such a path for Sorensen. It was even less clear at the time they
represented Sorensen.
Id. at 2. Sorensen also objects and claims that he agrees with the Magistrate
Judge that Mathis is a significant part of why this issue is not novel but that
the Magistrate Judge failed to address other reasons why the issue was not
novel. Docket 50 at 6-7.
This court must first address whether this issue was novel because
“[c]ounsel’s failure to raise [a] novel argument does not render his performance
constitutionally ineffective.” Basham v. United States, 811 F.3d 1026, 1029 (8th
Cir. 2016) (quoting Anderson v. United States, 393 F.3d 749, 754 (8th Cir.
2005)). “[F]ailure to raise arguments that require the resolution of unsettled
legal questions generally does not render” a lawyer’s competence a violation of
the Sixth Amendment. Id. (quoting New v. United States, 652 F.3d 949, 952
(8th Cir. 2011). “Even in cases where there is a split of authority, the ‘complete
lack of Eighth Circuit or Supreme Court authority on [a] subject’ governs
whether counsel’s performance falls within the wide range of professionally
competent assistance.” Id. (quoting Fields v. United States, 201 F.3d 1025,
1027-28 (8th Cir. 2000)). “Although the issue was percolating in lower courts,
‘[c]ounsel’s failure to anticipate a rule of law that has yet to be articulated by
the governing courts surely cannot render counsel’s performance professionally
unreasonable.’ ” Id. (emphasis omitted) (quoting Fields, 201 F.3d at 1028).
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 7 of 28 PageID #: <pageID>

8
In Mathis, the “issue” and “subject” decided by the United States
Supreme Court was:
[f]or 	more 	than 	25 	years, 	we 	have 	repeatedly 	made 	clear 	that
application of [Armed Career Criminal Act] involves, and involves
only, comparing elements. Courts must ask whether the crime of
conviction is the same as, or narrower than, the relevant generic
offense. They may not ask whether the defendant’s conduct—his
particular means of committing the crime—falls within the generic
definition. And that rule does not change when a statute happens to
list possible alternative means of commission . . . .
Mathis, 136 S. Ct. at 2257 (considering the Armed Career Criminal Act, 18
U.S.C. § 924(e), and whether an Iowa burglary statute constituted a “violent
felony” to enhance the sentence to a 15-year mandatory minimum). But
Sorensen was not charged under the Armed Career Criminal Act; he was
charged under the Controlled Substances Act. CR Dockets 1, 70. While Mathis
is precedent for individuals charged under the Armed Career Criminal Act,
Mathis simply alerts counsel that this type of argument could be raised in other
types of cases.
Sorensen argues that the Magistrate Judge should not have looked only
to Mathis when determining whether this issue was novel. See Docket 50 at 6-
7. Sorensen cites to Mellouli v. Lynch, where the United States Supreme Court
considered whether a lawful permanent resident who had been convicted under
a Kansas state misdemeanor statute of possession of drug paraphernalia was
deportable under 8 U.S.C. § 1227(a)(2)(B)(i). Mellouli v. Lynch, 575 U.S. 798
(2015). Section 1227(a)(2)(B)(i) authorizes the removal of an alien “convicted of
a violation of . . . any law or regulation of a State, the United States, or a
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 8 of 28 PageID #: <pageID>

9
foreign country related to a controlled substance (as defined in section 802 of
Title 21)[.]” Mellouli was an immigration case that addresses federal criminal
statutes, including § 802 where “felony drug offense” is defined. Mellouli, 575
U.S. at 801-02, 810-11, 813. Sorensen claims that “Mellouli put defense
attorneys on notice that a state statute may be fatally overbroad because it
includes substances not listed in the relevant federal definition or schedule.”
Docket 50 at 7. Putting defense counsel on notice, however, does not constitute
United States Supreme Court and Eighth Circuit precedent on the direct issue.
It merely alerts counsel that this argument is percolating in lower courts, and it
does not render counsel’s performance professionally unreasonable. It was not
ineffective for counsel to not raise a novel issue.
The cases cited by Sorensen to support his position that the issue was
not novel are not “clearly controlling precedent.” See Kelly v. United States, 819
F.3d 1044, 1050 (8th Cir. 2016). In Kelly, the Eighth Circuit found that the
court did not rule on
whether a conviction under [Iowa Code] § 708.1(2) was further
divisible under the modified categorical approach, [and the court did
not] discuss whether a conviction under section 708.1(2) . . . would
qualify as a predicate offense for the career-offender enhancement.
Given the absence of a clearly controlling precedent requiring
a course of action, and in light of the substantial deference we afford
trial counsel, we conclude that [movant’s] counsel’s performance at
sentencing was objectively reasonable.
Id. at 1050-51. Kelly holds that if the case law is not “clearly controlling” then
counsel is not ineffective. Id. Although case precedent supports that counsel
can challenge whether predicate offenses are more broad than the federal
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 9 of 28 PageID #: <pageID>

10
definition, there is not “clearly controlling” precedent regarding these specific
state statutes.
Additionally, Sorensen and the United States argue extensively about
whether the state statutes are divisible or indivisible and whether the
categorical or modified categorical approach applies. See Docket 2 at 2-5;
Docket 28 at 12-17; Docket 49 at 4-7; Docket 50 at 3-8. In Arizona, Sorensen
was convicted of possession of dangerous drugs (methamphetamine) in
violation of A.R.S. §§ 13-3407,2 13-701, and 13-801. Docket 2-1 at 5. The
Seventh Circuit and Ninth Circuit have addressed whether other Arizona drug
statutes were divisible. United States v. Elder, 900 F.3d 491, 503 (7th Cir.
2018) (holding that A.R.S. § 13-3407(A)(3)3 and the definition of “dangerous
drug” is not divisible and “the modified categorical approach is not
appropriate”); Romero-Millan v. Barr, 958 F.3d 844, 848 (9th Cir. 2020)
(certifying questions to the Arizona Supreme Court about whether A.R.S. §§ 13-
3415 and 13-3408 were divisible because it was “difficult to determine the
answers from existing Arizona law”). But both Elder and Romero-Millan were
decided after Sorensen was sentenced on April 25, 2017. Compare CR Docket
157, with Elder, 900 F.3d at 503; Romero-Millan, 958 F.3d at 848. And the fact
that the Ninth Circuit Court of Appeals in Romero-Miller certified questions to
the Arizona Supreme Court about whether certain state statutes were divisible
2 A.R.S. § 13-3407(A)(1) makes it unlawful to “possess or use a dangerous
drug.”
3 A.R.S. § 13-3407(A)(3) makes it unlawful to possess “equipment or chemicals,
or both, for the purpose of manufacturing a dangerous drug.”
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 10 of 28 PageID #: <pageID>

11
is further evidence that the question is still open. Courts began to examine
whether the Arizona drug statutes were divisible after Sorensen was sentenced.
This also supports the conclusion that the issue before Sorensen’s counsel was
an open question and was novel. Because no “clearly controlling” precedent
had been announced at the time Sorensen was sentenced, this issue was novel.
Sorensen’s counsel’s performance was not deficient.4 And because
Sorensen has not shown that he received ineffective assistance of counsel, he
has not met his burden to show cause to overcome his procedural default.
Thus, Sorensen’s objections regarding the Arizona conviction are overruled and
the United States’s objection is sustained.
B. 	South Dakota Conviction
Sorensen’s counsel did not raise on appeal the issue of whether his
South Dakota conviction could be used to enhance his sentence, and as a
result, his claim is procedurally defaulted. Docket 42 at 49. The Magistrate
Judge held: “[f]or the same reasons discussed [] in connection with this court’s
discussion of the Arizona conviction, the court finds Mr. Sorens[e]n has
adequately demonstrated cause and prejudice[.]” Id. at 49-50. After addressing
the merits of the claim, the Magistrate Judge recommended “granting the
government’s motion to dismiss Mr. Sorensen’s claim that his South Dakota
drug conviction did not qualify as a predicate offense.” Id. at 58. The Magistrate
4 Because Sorensen’s counsel’s performance was not deficient, this court will
not address prejudice. See Morelos v. United States, 709 F.3d 1246, 1252 (8th
Cir. 2013) (supporting that a petitioner raising an ineffective assistance claim
must establish both prongs of the test outlined in Strickland).
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 11 of 28 PageID #: <pageID>

12
Judge “recommend[ed] dismissal of his claim that trial and appellate counsel
were ineffective for failing to challenge the South Dakota conviction on that
ground.” Id. at 59.
Sorensen objected to the Magistrate Judge’s finding that “counsel was
not ineffective for failing to challenge his South Dakota conviction[.]” Docket 50
at 8. Here, the Magistrate Judge relied on her finding that there was enough
evidence that counsel was ineffective for not objecting to the Arizona
conviction—that the legal issue was not novel—to address the merits of the
South Dakota conviction claim. See Docket 42 at 49-50. But this court has
held that “Sorensen has not shown that he received ineffective assistance of
counsel, [and thus] he has not met his burden to show cause to overcome his
procedural default[,]” because the issue before counsel was novel. Supra
section I.A. at 11. As discussed above with the Arizona statute, Mathis and
Mellouli provided counsel with notice that the argument in question was
percolating in lower courts. Id. Neither case is clearly controlling United States
Supreme Court or Eighth Circuit precedent that the South Dakota statute was
fatally overbroad.
As with the Arizona statute, Sorensen and the United States focus
heavily on whether the South Dakota statute is divisible or indivisible. See,
e.g., Docket 2 at 2-3, 5-7; Docket 28 at 18-20. In South Dakota, Sorensen was
convicted of possession of a controlled drug or substance in violation of SDCL
§ 22-42-5. Docket 2-2 at 1, 3. The Magistrate Judge examined one case cited
by Sorensen and four cases cited by the United States on this question and
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 12 of 28 PageID #: <pageID>

13
concluded that because “a defendant can be charged under South Dakota’s
drug laws with multiple violations of SDCL § 22-42-5 based on simultaneous
possession of different controlled substances[,]” the individual substances are
likely elements, not means, and the law is likely divisible. Docket 42 at 51-56;
see also Rendon v. Barr, 952 F.3d 963, 969 (8th Cir. 2020); Martinez v.
Sessions, 893 F.3d 1067, 1071 (8th Cir. 2018). But because neither side has
cited clearly controlling authority from the United States Supreme Court or the
Eighth Circuit holding that SDCL § 22-42-5 was indivisible at the time
Sorensen was sentenced, the divisibility of the statute was an open question
and was novel.
In an objection to the Magistrate Judge’s Report and Recommendation,
Sorensen also argues that the South Dakota statute was overbroad because “a
person could be convicted under this statute for having a positive urinalysis
test.” Docket 50 at 7 (citing South Dakota v. Schroder, 674 N.W.2d 827, 829-31
(S.D. 2004)). As discussed above, this objection is procedurally defaulted.
Supra section I.B. at 11. While ineffective assistance of counsel can serve as
cause to overcome procedural default, this issue is novel as well. Sorensen
cites no clearly controlling precedent finding SDCL § 22-42-5 indivisible at the
time of his sentences because it applied to positive urinalysis tests. Thus, this
claim is procedurally defaulted, and Sorensen has not raised a plausible
argument to overcome the procedural default. Counsel was not ineffective in
failing to raise this argument. Because Sorensen has not shown his counsel’s
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 13 of 28 PageID #: <pageID>

14
performance was deficient, this court will not address the merits of the claim,
and Sorensen’s objections regarding his South Dakota conviction are overruled.
Sorensen also objects to the fact that Magistrate Judge only addressed
whether ineffective assistance of counsel could overcome the procedural
default. See Docket 50 at 2. Sorensen claims that he can overcome procedural
default through the actual innocence/miscarriage of justice exception. Id. But
the “actual innocence exception to the procedural default rule is not available
to remedy errors in noncapital sentencing.” Lindsey v. United States, 615 F.3d
998, 1001 (8th Cir. 2010). 	Sorensen’s claim regarding his underlying Arizona
and South Dakota convictions is an alleged error in his noncapital sentencing,
and this claim is not sufficient to overcome procedural default. Sorensen’s
objections regarding a miscarriage of justice are overruled. Finally, because
Sorensen’s claims are procedurally defaulted, this court will not address the
merits of whether the state convictions were improperly used to enhance his
sentence.
II. 	Objection to Claim 3
The Magistrate Judge found that Sorensen had failed to show that Larry
Kuhnert’s testimony would have changed the outcome of his trial. Docket 42 at
60, 64-65. Sorensen objects and claims he is entitled to an evidentiary hearing
because “the court cannot make a credibility determination on the [competing]
affidavits alone and instead must conduct a hearing.” Docket 50 at 8 (citing
Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013)). In his
objections, Sorensen attached an affidavit of Kuhnert. The Magistrate Judge
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 14 of 28 PageID #: <pageID>

15
did not consider the affidavit because it was not filed with the court when she
made her recommendations.
Sorensen’s pro hac vice counsel at the time of trial, Bruce Rivers, filed an
affidavit. Docket 23. Rivers’s affidavit does not address what, if any, attempts
were taken to contact Kunhert. Id. Sorensen’s other pro hac vice counsel at the
time of trial was Coley Grostyan. Docket 24. Grostyan states that he
remembers attempting to contact Kuhnert but does not have proof to support
that he actually attempted to contact him and does not recall whether his
attempts were successful. Id. at 2-3. Grostyan believed that Kunhert’s
testimony was “unnecessary or possibly risky to the defense.” Id. at 3.
When determining whether counsel’s performance was deficient, “[t]he
decision not to call a witness is a virtually unchallengeable decision in trial.”
United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005) (internal quotation
omitted). But reasonable trial strategy involves “choices made after thorough
investigation of law and facts relevant to plausible options . . . and strategic
choices made after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the limitations on
investigation.” Francis v. Miller, 557 F.3d 894, 901 (8th Cir. 2009) (quoting
Strickland, 466 U.S. at 690-91). “[T]he strength of the general presumption that
counsel engaged in sound trial strategy ‘turns on the adequacy of counsel’s
investigation.’ ” Id. (quoting White v. Roper, 416 F.3d 728, 732 (8th Cir. 2005)).
Here, even if this court found that there was evidence of an inadequate
investigation, it would still need to find evidence that Sorensen was prejudiced
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 15 of 28 PageID #: <pageID>

16
by Kuhnert not testifying. The “prejudice prong” requires the petitioner to
“show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. In other words, “[i]t is not enough
for the defendant to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693. Thus, “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.” Id. at 691.
Sorensen asserts that he can show prejudice because Kuhnert would
testify to the source of the cash he had when he was arrested. The amount of
cash was brought up “many times at trial, including in the government’s
opening statement, by fact witnesses, and in expert testimony linking large
amounts of cash to drug trafficking.” Docket 50 at 10. Sorensen claims that
Kuhnert’s testimony would have explained why he had such a large amount of
cash and it had the potential to change the outcome of the trial. Id.
“To prove prejudice from a trial attorney’s failure to investigate potential
witnesses, a petitioner must show that the uncalled witnesses would have
testified at trial and that their testimony would have probably changed the
outcome of the trial.” Stewart v. Nix, 31 F.3d 741, 744 (8th Cir. 1994). Here,
the affidavit by the attorneys and Kuhnert are competing. Compare Dockets 23,
24, with Docket 50-1. Kuhnert claims he was never contacted, and he filed an
affidavit about what he would have testified to at trial. Docket 50-1. At this
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 16 of 28 PageID #: <pageID>

17
time, Sorensen has alleged facts to support that his trial counsel was
ineffective for not contacting Kuhnert and that if Kuhnert would have testified
it could have changed the outcome of the trial. Sorensen’s objection regarding
this issue is sustained. Sorensen is entitled to an evidentiary hearing on this
issue to determine the credibility of the witness.
III. 	Objection to Claim 4
The Magistrate Judge recommended that the United States’s motion to
dismiss be granted on Sorensen’s claim that his trial counsel was ineffective for
advising him to give up his right to testify. Docket 42 at 72. Sorensen objects
and asserts the Magistrate Judge’s decision was based on an impermissible
credibility determination. Docket 50 at 10-11.
A criminal defendant has the fundamental right to choose whether to
testify on his own behalf and only the defendant can waive this right, but the
waiver must be voluntary and knowingly. See Rock v. Arkansas, 483 U.S. 44,
51-53 (1987); United States v. Bernloeher, 833 F.2d 749, 751 (8th Cir. 1987). If
a factual dispute exists on § 2255 motions, evidentiary hearings are preferred.
Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013). “The district
court is not permitted to make a credibility determination on the affidavits
alone; thus if the decision turns on credibility, the district court must conduct
a hearing.” Id. (citing Kingsberry v. United States, 202 F.3d 1030, 1032–33 & n.
6 (8th Cir.2000)). But if the “motion, files, and records of the case conclusively
show that the movant is not entitled to relief” an evidentiary hearing may be
denied. Id. An evidentiary hearing may be denied if either “(1) the [petitioner's]
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 17 of 28 PageID #: <pageID>

18
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.” Id.
at 1206-07 (alterations in original) (quoting Buster v. United States, 447 F.3d
1130, 1132 (8th Cir.2006)).
Here, the issue does not rest on factual disputes alone, because the court
can rely on the entire record. Among other alleged facts, Sorensen asserts that
his trial counsel did not prepare him to testify, did not advise him of the
benefits of testifying, and pressured him to not testify. Docket 50 at 10. Trial
counsel’s affidavits state otherwise. Dockets 23, 24. But the Magistrate Judge
relied on the entire record. Docket 42 at 71. At trial, and out of the jury’s
presence, Sorensen was questioned by the court:
THE COURT: I was advised last night by Defense counsel, Mr.
Sorensen, that you were not going to testify. Is that correct?
THE DEFENDANT: That’s correct.
THE 	COURT: 	And 	you 	talked 	all 	of 	this 	over 	with 	your
lawyers?
THE DEFENDANT: Yes, sir, I did.
THE 	COURT: 	Are 	you 	satisfied 	with 	the 	advice 	and
representation your lawyers have give you on this point?
THE DEFENDANT: Yes.
THE 	COURT: 	Are 	you 	satisfied 	with 	the 	advice 	and
representation they’ve given you generally throughout the course of
preparation as well as this trial?
THE DEFENDANT: Yes, Your Honor.
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 18 of 28 PageID #: <pageID>

19
THE COURT: You understand that you have a right to take
the stand and to testify and tell your story, including proclaiming
your innocence. You understand that?
THE DEFENDANT: I understand that.
THE COURT: As I’m talking to you here today, are you under
the influence of any drugs or alcohol that would affect your ability
to think in any way?
THE DEFENDANT: No, sir.
THE COURT: How old a man are you?
THE DEFENDANT: Fifty-four.
. . .
THE COURT: . . . How much education have you had?
THE DEFENDANT: I got a GED. . . . [from] Kilian College in
Sioux Falls.
THE COURT: Do you have any questions about the right that
you have to testify?
THE DEFNEDANT: No, Your Honor.
THE COURT: You realize, and also I ruled last night that if you
did testify, the jury would become aware that you had another
conviction, but the fact that the other conviction was for drug
distribution, they would not be apprised of. You understand that?
THE DEFENDANT: I understand.
THE COURT: Considering all of that, is it still your decision
not to testify?
THE DEFENDANT: Yes, Your Honor.
CR Docket 137-2 at 4-6. Sorensen was questioned by the court before he
waived his right to testify. He had the opportunity to speak up and chose not to
do so. Sorensen’s affidavit is directly contradicted by the record; thus, his
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 19 of 28 PageID #: <pageID>

20
motion does not entirely rest on a factual dispute. The Magistrate Judge did
not make an impermissible credibility determination because the decision was
supported by the court record. Sorensen’s objection regarding his ineffective
assistance of counsel claim regarding his right to testify is overruled.
III. 	Objection to Claim 5(a)
Sorensen objects to the Magistrate Judge’s recommendation that his
equal protection claim be dismissed. Docket 50 at 11. The Magistrate Judge
found that Sorensen’s sentence did not violate the Equal Protection Clause
because it passed rational-basis review. Docket 42 at 78-79. When an equal
protection claim is not based on a suspect classification or fundamental right,
it is subject to rational basis review. Gilmore v. Cnty. of Douglas, 406 F.3d 935,
937 (8th Cir. 2005) (citations omitted). Sorensen conceded that the rational
basis test applies. Docket 42 at 76.
The “rational-basis review in equal protection analysis ‘is not a license for
courts to judge the wisdom, fairness, or logic of legislative choices.’ ” Heller v.
Doe, 509 U.S. 312, 319 (1993) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S.
307, 313 (1993)). A classification not involving a fundamental right or suspect
class is “accorded a strong presumption of validity” and does not violate the
Equal Protection Clause “if there is a rational relationship between the
disparity of treatment and some legitimate governmental purpose.” Id. at 319-
20. The legislation in question does not need to “articulate at any time the
purpose or rationale supporting its classification.” Nordlinger v. Hahn, 505 U.S.
1, 15 (1992).
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 20 of 28 PageID #: <pageID>

21
A classification “must be upheld . . . if there is any reasonably
conceivable state of facts that could provide a rational basis for the
classification” and the government has “no obligation to produce evidence to
sustain the rationality[.]” Heller, 509 U.S. at 320 (quoting Beach, 508 U.S. at
313) (first quote). “[A] legislative choice is not subject to courtroom factfinding
and may be based on rational speculation unsupported by evidence or
empirical data.” Id. (quoting Beach, 508 U.S. at 315). Sorensen bears the
burden to negate “every conceivable basis which might support it[.]” Id.
(quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364 (1973)). If
the end result of a classification is inequality, it does not fail rational-basis
review. See id. at 321.
Sorensen asserts that the classification of when someone was sentenced,
either before or after the First Step Act of 2018, creates a “harsh and arbitrary
disparity[.]” Docket 50 at 11. The Magistrate Judge relied on case precedent
holding that the sentencing reform in the Fair Sentencing Act did not violate
the Equal Protection Clause when it was non-retroactive. Docket 42 at 77-79.
This court is unaware of binding precedent on whether the classification
in the First Step Act violates the Equal Protection Clause, but the Sixth Circuit
addressed the issue in United States v. Gatewood, 807 F. App’x 459, 463 (6th
Cir. 2020). In Gatewood, the movant argued that he was deprived of equal
protection because the amendments made by the First Step Act treat “similarly
situated offenders [differently] due to an arbitrary date that makes no
distinction for the purpose of deterrence.” Id. (alteration in original). The court
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 21 of 28 PageID #: <pageID>

22
held that the government’s “strong interest in the finality of sentences” and the
presumption of validity to the First Step Act passes rational-basis review. Id.
(quoting United States v. Blewett, 746 F.3d 647, 659 (6th Cir. 2013)). Further,
“limiting the retroactivity of . . . [the] amendments supports the government’s
legitimate interest in preserving sentence finality[.]” Id.
Here, Sorensen challenges the amendments made by the First Step Act
and asserts the classification is arbitrary and has no rational purpose. Docket
50 at 11. But the amendments made by the First Step Act are not retroactive,
and as in Gatewood, this court finds that the limit of retroactivity supports the
United States’s argument. Further, the United States has an interest in
preserving sentence finality. There are conceivable facts that provide a rational
basis for this classification. See Heller, 509 U.S. at 320. Thus, the classification
survives rational-basis review, and Sorensen’s objections are overruled. This
court cannot and will not judge the fairness or logic of legislative choices. See
id. at 319.
IV. 	Objection to Claim 5(b)
The Magistrate Judge recommended that the United States’s motion to
dismiss be granted on Sorensen’s Eighth Amendment claim because his claim
was already rejected on direct appeal and thus barred. Docket 42 at 80.
Sorensen objects and asserts he made a general Eighth Amendment challenge
on his direct appeal, but the argument in his petition was different because it
asserts that
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 22 of 28 PageID #: <pageID>

23
his 	sentence 	violates 	the 	Eighth 	Amendment 	because 	of 	the
disparity between his pre-First Step Act mandatory life sentence and
the elimination of this mandatory penalty in that Act. The First Step
Act was enacted after Sorensen’s direct appeal, so his argument
could not have been considered or addressed by the Eighth Circuit
in his direct appeal.
Docket 50 at 12 (emphasis omitted.
This court agrees with the Magistrate Judge. The Eighth Circuit held that
“given the gravity of the offense and in light of Sorensen’s history of felony
convictions, this case does not present the ‘extremely rare’ circumstance where
the sentence runs afoul of the Constitution[.]” Sorensen, 893 F.3d at 1067.
Even though the First Step Act was enacted after Sorensen was sentenced, the
Act does not apply retroactively. In Dorsey v. United States, the United States
Supreme Court explained that sentencing disparities “will exist whenever
Congress enacts a new law changing sentences” and “in federal sentencing the
ordinary practice is to apply new penalties to defendants not yet sentenced,
while without holding the change from defendants already sentenced.” 567 U.S.
260, 280 (2012). The Eighth Circuit has already held that Sorensen’s sentence
was constitutional, and the change brought by the First Step Act does not
interrupt the Eighth Circuit’s analysis of Sorensen’s conviction. To further
support this contention, the court considers what is looked at to determine
whether a sentence is grossly disproportionate—the court compares the “crime
committed and the sentence imposed.” United States v. Ford, 642 F. App’x 637,
640 (8th Cir. 2016) (quoting Harmelin v. Michigan, 501 U.S. 957, 1005 (1991)).
“In the rare case that the threshold comparison ‘leads to an inference of gross
disproportionality,’ the court should then perform a comparative analysis of the
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 23 of 28 PageID #: <pageID>

24
defendant’s sentence with sentences received by other offenders in the same
jurisdiction and other jurisdictions.” Id. (quoting Harmelin, 501 U.S. at 1005).
Here, the Eighth Circuit did the threshold comparison and held that it
did not lead to an inference of gross disproportionality. Sorensen, 893 F.3d at
1067. The court noted that in numerous cases, “[t]his court has ruled . . . that
the imposition of a mandatory life sentence under [21 U.S.C. § 841(b)] does not
violate the Eighth Amendment[.]” Id. (third alteration in original). Even if there
were a threshold showing, the court would look to what other courts were
doing at the time Sorensen was sentenced and not how his sentence compares
to individuals committing the same crimes now. See id. Sorensen’s objection is
overruled.
V. 	Objection to Claim 6
The Magistrate Judge recommended granting the United States’s motion
to dismiss regarding Sorensen’s Rehaif5 claim. Docket 42 at 100. Sorensen
objects and asserts that at the time he possessed the firearm, he did not know
he had the “ ‘relevant status’ that brought him under the federal firearms ban
because he believed that his rights had been restored.” Docket 50 at 12.
Recently, the United States Supreme Court and the Eighth Circuit have issued
opinions regarding Rehaif claims. See Greer v. United States, 141 S. Ct. 2090,
2093 (2021); United States v. Willis, 851 F. App’x 650 (8th Cir. 2021) (per
curiam).
5 Rehaif v. United States, 139 S. Ct. 2191 (2018).
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 24 of 28 PageID #: <pageID>

25
Rehaif clarified that the United States, for a felon-in-possession case,
“must prove not only that the defendant knew he possessed a firearm, but also
that he knew he was a felon when he possessed the firearm.” Greer, 141 S. Ct.
at 2095 (emphasis omitted). A Rehaif violation is to be reviewed under a plain-
error standard if the:
defendant first makes a sufficient argument or representation on
appeal that he would have presented evidence at trial that he did
not in fact know he was a felon. When a defendant advances such
an argument or representation on appeal, the court must
determine whether the defendant has carried the burden of
showing a “reasonable probability” that the outcome of the district
court proceeding would have been different.
Id. at 2100. The court can examine “relevant and reliable information from the
entire record—including information contained in a pre-sentence report." Id. at
2098. Here, Sorensen could not have raised this issue on appeal because his
appeal occurred before Rehaif was decided.
Sorensen asserts he did not know he was a felon because he reasonably
believed his rights had been restored. Docket 50 at 15. Sorensen must provide
evidence that he did not know he was a felon at the time of his arrest.
Specifically, evidence that he did not know he had “been convicted in any court
of, a crime punishable by imprisonment for a term exceeding on year[.]” 18
U.S.C. § 922(g)(1) (emphasis added). A “crime punishable by imprisonment for
a term exceeding one year” does not include:
(A) any Federal or State offenses pertaining to antitrust violations,
unfair trade practices, restraints of trade, or other similar offenses
relating to the regulation of business practices, or
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 25 of 28 PageID #: <pageID>

26
(B) any 	State 	offense 	classified 	by 	the 	laws 	of 	the 	State 	as 	a
misdemeanor and punishable by a term of imprisonment of two
years or less.
What constitutes a conviction of such a crime shall be determined
in 	accordance 	with 	the 	law 	of 	the 	jurisdiction 	in 	which 	the
proceedings were held. Any conviction which has been expunged, or
set aside or for which a person has been pardoned or has had civil
rights restored shall not be considered a conviction for purposes of
this chapter, unless such pardon, expungement, or restoration of civil
rights expressly provides that the person may not ship, transport,
possess, or receive firearms.
Id. at § 921(a)(20) (emphasis added).
Sorensen claims that at the time he possessed the firearm, he believed
that his gun rights had been restored in South Dakota;6 thus, he believed he
had not been convicted of “a crime punishable by imprisonment for a term
exceeding a year” under § 921(a)(20). Docket 50 at 15; Docket 35-4 at 1. But
§ 22(g)(1) states that the relevant status is when someone has “been convicted
in any court of, a crime punishable by imprisonment for a term exceeding one
year[.]” 18 U.S.C. § 922(g)(1) (emphasis added). This court can look to the pre-
sentence report to show that Sorensen cannot show a reasonable probability
that the proceeding would have been different because Sorensen was convicted
of a felony in Arizona on March 10, 2008. Docket 2-1 at 4-9; CR Docket 66.
6 Sorensen contends he believed his gun rights had been restored, but he has
not provided any official documentation to show his gun rights in fact were
restored by the state of South Dakota. In United States v. Burning Breast, the
Eighth Circuit held that the defendant must in fact have received a restoration
of the defendant’s civil rights because a mistake of law argument would be
unavailing. United States v. Burning Breast, No. 20-1450, 2021 WL 3519970, at
*9 (8th Cir. Aug. 11, 2021). Thus, Sorenson would not prevail with regard to
his South Dakota conviction either.
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 26 of 28 PageID #: <pageID>

27
Under Arizona law, when someone is convicted of a felony and sentenced, the
person loses the right, among other rights, to vote and to possess a firearm.
A.R.S. § 13-904. In order to restore those rights, the person:
may apply to the superior court to have the person’s civil rights
restored. A person who has received an absolute discharge from
imprisonment may file an application for restoration of civil rights
no sooner than two years from the date of the person’s absolute
discharge. The restoration of civil rights is in the discretion of the
judicial officer.
Id. at § 13-908.
Here, Sorensen raises a possibility that he was not a felon under the
federal statute because he believed his civil rights had been restored in South
Dakota, but he has not shown that he took affirmative steps to restore his civil
rights in Arizona. Further, his Arizona felony conviction was more recent (2008)
than his South Dakota conviction (2002). CR Docket 66. The jury instructions
did not include the proper mens rea element but did state that the “[d]efendant
had been convicted of a crime punishable by imprisonment for a term of one
year[,]” which could have been either his South Dakota or Arizona felony
conviction. CR Docket 93 at 29-30. Sorensen has not shown a reasonable
probability that if given the proper instruction, the jury would have found him
not guilty.
Further, in United States v. Willis, the Eighth Circuit found that the
movant could not “show a reasonable probability that he would not have been
charged or that he would have been acquitted, if the correct question had been
presented.” Willis, 851 F. App’x at 651. In Willis, the “record le[ft] no question
that [the movant] knew he previously had been convicted of a felony—
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 27 of 28 PageID #: <pageID>

28
regardless of whether he believed the United States now lacked jurisdiction
over him as a ‘sovereign citizen.’ ” Id. at 652. The same rationale is true here—
the record leaves no question that Sorensen knew he had previously been
convicted of a felony in Arizona and that his civil rights in Arizona had not been
restored—regardless of whether he believed his rights had been restored in
South Dakota. Sorensen’s objections are overruled.
CONCLUSION
Thus, it is ORDERED that:
1. 	The report and recommendation (Docket 42) is adopted in part and
rejected in part.
2. 	The United States’s motion to dismiss (Docket 26) is granted on all
claims except as follows:
a. 	Sorensen’s Ineffective Assistance of Counsel for Failure to
Investigate Potential Witness Larry Kuhnert. Sorensen’s
objections regarding this claim are sustained.
3. 	The Magistrate Judge will hold an evidentiary hearing on the above
stated claim and file a Report and Recommendation with the court.
DATED August 24, 2021.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
Case 4:19-cv-04190-KES Document 51 Filed 08/24/21 Page 28 of 28 PageID #: <pageID>