DeMarko L. Collins Movant - v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 20-3662
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DeMarko L. Collins
lllllllllllllllllllllMovant - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: December 14, 2021
Filed: March 16, 2022
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Before LOKEN, ARNOLD, and STRAS, Circuit Judges.
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LOKEN, Circuit Judge.
Does trial counsel’s failure to object to a sentencing enhancement, based on an
Eighth Circuit decision that controlled the issue at the time of sentencing but was
later overruled by the court en banc, satisfy the “prejudice” element of an ineffective
assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984)?

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We conclude the answer is no and therefore affirm the district court’s1 denial of
DeMarko Collins’s motion for post-conviction relief under 28 U.S.C. § 2255.
I.
On September 1, 2016, Collins pleaded guilty to being a felon in possession of
a firearm and possessing a stolen firearm. See 18 U.S.C. §§ 922(g)(1) and (j) and
924(a)(2). The Presentence Investigation Report (PSR) determined he had two prior
felony convictions for “crimes of violence,” including a Missouri state court
conviction for second-degree robbery. Mo. Rev. Stat. § 569.030.1 (1979).2 These
prior convictions enhanced the base offense level, see USSG § 2K2.1(a)(2), resulting
in a total offense level of 23 and an advisory guidelines sentencing range of 84 to 105
months’ imprisonment. Five months before Collins’s March 2017 sentencing
hearing, a divided panel of this court held that Missouri second-degree robbery is not
a crime of violence. United States v. Bell, 840 F.3d 963, 966-67 (8th Cir. 2016).
Defense counsel did not cite Bell in opposing the § 2K2.1 enhancement. The district
court overruled Collins’s objections, granted the government’s motion for an upward
variance, and sentenced Collins to 216 months -- 108 months on each count.
Collins appealed his sentence. Relying on Bell, he argued that the district court
erred in imposing the § 2K2.1 enhancement because Missouri second-degree robbery
is not a crime of violence under the Guidelines. With the appeal pending, our en banc
court overruled Bell and held that a conviction for Missouri second-degree robbery
is a violent felony under the Armed Career Criminal Act (ACCA). United States v.
Swopes, 886 F.3d 668, 672 (8th Cir. 2018). One month later, a panel affirmed
1The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
2Missouri amended its second-degree robbery statute effective January 1, 2017.
See Mo. Rev. Stat. § 570.025.1. The amended statute is not at issue.
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Collins’s sentence, concluding that Swopes foreclosed his contention because “[o]ur
precedent views a ‘violent felony’ under the ACCA and a ‘crime of violence’ under
the Guidelines as interchangeable.” United States v. Collins, 719 F. App’x 542, 543
(8th Cir. 2018), citing United States v. Hall, 877 F.3d 800, 806 (8th Cir. 2017).
On April 15, 2019, Collins filed a pro se motion for § 2255 relief. Ground One
of the five-count motion alleged that he received ineffective assistance of counsel at
sentencing because counsel failed to cite Bell, which was controlling authority
establishing that, at the time of his sentencing, a Missouri second-degree robbery
conviction was not a crime of violence under the Guidelines. The district court
denied § 2255 relief, rejecting each of the five counts Collins alleged. As to Count
One, the court concluded:
[e]ven if [Collins] is correct that his counsel should have raised
this objection at sentencing, he cannot demonstrate he was prejudiced
by it. To establish prejudice in the sentencing context, a defendant must
show a reasonable probability that, but for counsel’s errors, the
defendant would have received a lesser sentence than he did. . . . The
record demonstrates this Court would not have imposed a lesser
sentence, even if the guidelines calculations had been lower.
The district court denied Collins’s request for the certificate of appealability (COA)
required to appeal the denial of § 2255 relief. See 28 U.S.C. §§ 2253(c), 2255(d).
We then granted a COA “solely on the issue corresponding with Ground One of
Appellant’s section 2255 motion.” In Ground One, Collins alleged:
Ineffective Assistance Counsel: My Attorney did not bring up
controlling law at time of PSI objections or sentencing . . . 2nd degree
robbery was not violent under controlling law . . . his performance was
deficient for not researching controlling law and it prejudice[d] me by
getting higher sentence.
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This is the only issue we may consider on appeal. See Fields v. United States, 201
F.3d 1025, 1026 n.2 (8th Cir. 2000). We review ineffective assistance of counsel
claims de novo. Meza-Lopez v. United States, 929 F.3d 1041, 1044 (8th Cir. 2019).
To establish ineffective assistance, Collins must show that his counsel’s performance
was constitutionally deficient and that he was prejudiced by the deficiency.
Strickland, 466 U.S. at 687.
II.
On appeal, Collins argues he was prejudiced by counsel’s failure to cite Bell
at sentencing because it resulted in Collins “serving 4½ years more than he would
have without counting the robbery conviction.” This issue is governed by Lockhart
v. Fretwell, 506 U.S. 364 (1993). In Fretwell, a divided panel of this court held that
the petitioner was entitled to habeas corpus relief because trial counsel failed to object
to a sentence-enhancing factor based on an Eighth Circuit decision we later overruled.
Fretwell v. Lockhart, 946 F.2d 571 (8th Cir. 1991). The Supreme Court granted
certiorari to decide “whether counsel’s failure to make an objection in a state criminal
sentencing proceeding -- an objection that would have been supported by a decision
which subsequently was overruled -- constitutes ‘prejudice’ within the meaning of
[the Supreme Court’s] decision in Strickland v. Washington.” Fretwell, 506 U.S. at
366. The Court reversed our grant of habeas relief:
Because the result of the sentencing proceeding . . . was rendered neither
unreliable nor fundamentally unfair as a result of counsel’s failure to
make the objection, we answer the question in the negative. To hold
otherwise would grant criminal defendants a windfall to which they are
not entitled.
Id. As Justice O’Connor explained, “today we hold that the court making the
prejudice determination may not consider the effect of an objection it knows to be
wholly meritless under current governing law, even if the objection might have been
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considered meritorious at the time of its omission.” Id. at 374 (O’Connor, J.,
concurring).
Collins’s Reply Brief conceded that the question presented in Fretwell
“resonates at the same frequency here.” Indeed, this case fits precisely in the Fretwell
glove. When Collins on direct appeal cited Bell in challenging his § 2K2.1
enhancement based on a Missouri second-degree robbery conviction, Bell had been
overruled by Swopes, and this prior conviction was once again a predicate crime of
violence under the Guidelines. Strickland prejudice “focuses on the question whether
counsel’s deficient performance renders the result of the trial unreliable or the
proceeding fundamentally unfair.” Fretwell, 506 U.S. at 372. Collins was not
deprived of a substantive or procedural right to which the law entitles him, so he
“suffered no legally cognizable prejudice.” Id. at 375 (O’Connor, J., concurring).
Accordingly, the district court did not err in denying his Count One § 2255 claim of
ineffective assistance of counsel.3
The judgment of the district court is affirmed.
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3Collins argues that Fretwell is distinguishable because the defendant in
Fretwell went to trial, but here counsel’s failure rendered Collins’s prosecution
“fundamentally unfair and unreliable because it, alone, informed [his] decision to
plead guilty.” However, Collins’s § 2255 motion did not raise this issue or challenge
his decision to plead guilty. Accordingly, this issue was not preserved for appeal and
in any event is beyond the scope of the COA he was granted.
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