USA v. Barth et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHWESTERN DIVISION
United States of America, 	)
)
Plaintiff, 	) 	ORDER DENYING DEFENDANT’S
) 	PETITION FOR HABEAS CORPUS
vs. 	) 	RELIEF UNDER 28 U.S.C. § 2255
)
Shawn Leo Barth, 	)
) 	Case No. 1:03-cr-046
Defendant. 	)
____________________________________)
)
Shawn Leo Barth, 	)
)
Petitioner, 	)
)
vs. 	) 	Case No. 1:06-cv-097
)
United States of America, 	)
)
Respondent. 	)
Before the Court is the Defendant’s petition under 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence, filed on December 11, 2006. 	On December 12, 2006, the Court granted the
Defendant’s request to amend his brief in support of the petition for habeas relief. On February 21,
2007, the Court reviewed the motion and ordered the Government to file a response. On April 20,
2007, the Government filed a response requesting that the Court deny the Defendant’s motion for
post-conviction relief. For the reasons set forth below, the motion is denied.
I. 	BACKGROUND
On July 9, 2003, the defendant, Shawn Leo Barth (“Barth”), was charged in a nine-count
indictment with various drug and firearm offenses. 	Count One charged Barth and four other
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individuals with conspiracy to distribute and possess with intent to distribute 50 grams or more of
actual methamphetamine or 500 grams of more of a mixture or substance containing a detectable
amount of methamphetamine. Count Two charged Barth with possession with intent to distribute
500 grams of a mixture or substance containing a detectable amount of methamphetamine. Count
Three charged Barth with distribution of methamphetamine. 	Count Four charged Barth with
possession of a firearm in furtherance of a drug trafficking crime. Count Six charged Barth with
being a felon in possession of a firearm and ammunition. See Docket No. 11. Prior to trial, the
Government filed an Information alleging that Barth had two prior felony drug offenses therefore
subjecting Barth to the possibility of a mandatory sentence of life imprisonment if convicted on
either Counts One or Two. See Docket No. 94.
On December 18, 2003, a jury found Barth guilty on all counts. See Docket No. 131. As
to Count One, the jury found that the conspiracy involved over 50 grams of methamphetamine or
over 500 grams of a mixture or substance containing a detectable amount of methamphetamine. The
jury also found that as to Count Two, Barth possessed with intent to distribute 500 grams or more
of a mixture containing a detectable amount of methamphetamine.
Barth was sentenced on March 22, 2004. At sentencing, the Court determined that Barth had
two prior felony drug convictions and, due to the jury’s special findings regarding the amount of
methamphetamine involved in the offenses, sentenced Barth to concurrent terms of life
imprisonment on Counts One and Two. The Court imposed a concurrent 20-year prison term on
Count Three, a concurrent 5-year prison term of Count Four, and a concurrent 15-year prison term
on Count Six. On Count Five, the Court imposed a 5-year consecutive prison term as mandated by
18 U.S.C. § 924(c)(1)(A).
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On March 25, 2004, Barth filed a notice of appeal. See Docket No. 165. Barth appealed his
conviction and sentence. On appeal, Barth argued that (1) he was prejudiced because of a variance
between the Indictment that alleged a single conspiracy and the evidence which allegedly showed
multiple conspiracies; (2) there was insufficient evidence to convict him; and (3) his sentence
violated the Sixth Amendment under United States v. Booker, 543 U.S. 220 (2005). See United
States v. Barth, 424 F.3d 753 (8th Cir. 2005). The Eighth Circuit Court of Appeals rejected Barth’s
claims and affirmed his conviction and sentence. Id.
On December 11, 2006, Barth filed a motion under 28 U.S.C. § 2255. Barth asserts that his
trial counsel were ineffective. Barth sets forth six alleged deficiencies: (1) counsel failed to file a
motion to suppress evidence; (2) counsel failed to negotiate a plea agreement; (3) counsel failed to
call Barth as a witness; (4) counsel failed to investigate Government witnesses; (5) counsel
ineffectively cross-examined Government witnesses; and (6) counsel failed to object to sentencing
enhancements.
II. 	LEGAL DISCUSSION
A. 	INEFFECTIVE ASSISTANCE OF COUNSEL
The burden of demonstrating ineffective assistance of counsel is on a defendant. United
States v. Cronic, 466 U.S. 648, 658 (1984); United States v. White, 341 F.3d 673, 678 (8th Cir.
2003). To be eligible for habeas relief based on ineffective assistance of counsel a defendant must
meet the two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984). 	A
defendant must first establish that counsel’s representation was constitutionally deficient, which
requires a showing that counsel’s performance fell below an objective standard of reasonableness.
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Id. at 687-88; see Wiggins v. Smith, 539 U.S. 510 (2003). This requires showing that counsel made
errors so serious that defense counsel was not functioning as the ‘counsel’ guaranteed the defendant
by the Sixth Amendment. Strickland v. Washington, 466 U.S. 688, 687 (1984). 	In considering
whether this showing has been accomplished, “[j]udicial scrutiny of counsel’s performance must be
highly deferential.” 	Id. at 689. 	If the underlying claim (i.e., the alleged deficient performance)
would have been rejected, counsel’s performance is not deficient. Carter v. Hopkins, 92 F.3d 666,
671 (8th Cir. 1996). Courts seek to “eliminate the distorting effects of hindsight” by examining
counsel’s performance from counsel’s perspective at the time of the alleged error. Id.
A defendant must then show that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). This requires proving that there is a reasonable
probability that, but for counsel’s ineffectiveness, the result would have been more favorable to the
defendant. Id. at 690-91. A reasonable probability is one “sufficient to undermine confidence in
the outcome.” Wiggins v. Smith, 539 U.S. 510, 534 (2003). Merely showing a conceivable effect
is not enough. When evaluating the probability the result would have been different, a court views
the alleged error in light of the totality of all the evidence before the jury to gauge the effect of the
error. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); Williams v. United States, 452 F.3d
1009, 1013 (8th Cir. 2006). When a defendant raises multiple claims of ineffective assistance, each
claim of ineffective assistance must be examined independently rather than collectively. Hall v.
Luebbers,296 F.3d 385, 692-693 (8th Cir. 2002); Griffin v. Delo, 33 F.3d 895, 903-04 (8th Cir.
1994).
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1. 	MOTION TO SUPPRESS EVIDENCE
Barth contends that his counsel was ineffective for failing to file a motion to suppress
evidence seized at a farmstead in Oliver County at which Barth was staying. 	Barth’s claim is
frivolous and devoid of any merit. 	The record clearly reveals that on October 1, 2003, Barth’s
counsel filed a motion to suppress. See Docket No. 75. A hearing on the motion to suppress was
held. See Docket No. 81. On October 30, 2003, the Court issued an Order finding that the search
warrants did not authorize the search of the vehicles at the farmstead, but that the search of the
vehicles was allowed under either the automobile exception to the warrant requirement of the Fourth
Amendment or the inevitable-discovery doctrine. See Docket No. 83.
To the extent that Barth is asserting that counsel was ineffective for failing to challenge the
evidence obtain pursuant to the search warrants, to prevail on such a claim Barth must show that the
suppression claim would have been “meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence.” See Kimmelman v. Morrison,
477 U.S. 365, 381 (1986). 	Barth has failed to establish that such a challenge would have been
successful or that the outcome of the trial would have been different without the evidence. The
Court finds that Barth’s claim on this issue is so lacking in any demonstrable proof that it much be
rejected in its entirety
2. 	NEGOTIATION OF PLEA AGREEMENT
Barth contends that his counsel was ineffective for failing to negotiate a plea agreement with
the Government. It is unclear whether defense counsel has a duty to negotiate a plea agreement.
See Beans v. Black, 757 F.2d 933, 936 (8th Cir. 1985) (“Defense counsel does not always have a
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duty to initiate plea negotiations.”); Hawkman v. Parratt, 661 F.2d 1161 (8th Cir. 1981) (while no
duty to initiate plea negotiations, the failure to do so may be deficient under circumstances of a
particular case). Nevertheless, even if the Court were to assume that Barth’s counsel had a duty to
negotiate a plea agreement, Barth must still how that his counsel’s omission actually prejudiced him.
To establish actual prejudice, Barth must establish, through objective credible evidence, that (1) the
Government would have offered a plea bargain, and (2) Barth would have accepted such an offer
and admitted his guilt. See Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995).
A thorough review of the record does not indicate whether the Government would have
offered Barth a plea bargain. Even assuming it would have offered Barth a plea agreement, there
is no evidence to indicate what the terms of the agreement may have been. As the Government
pointed out in its response brief, given the amount of methamphetamine involved and Barth’s
extensive criminal history, Barth was likely facing a life sentence whether he pled guilty or went to
trial. 	A thorough review of the record reveals no evidence to establish that Barth would have
accepted any specific plea agreement. Further, Barth has offered no objective, credible evidence
that he was willing to plead guilty prior to trial. In his brief in support of his petition, Barth simply
states “[p]etitioner certainly would have considered a plea agreement and his contention is not based
on the hindsight of having received a life sentence.” 	See Docket No. 228. 	Barth has failed to
provide an affidavit from himself or others indicating that he was willing to plead guilty prior to
trial. As a result, the Court finds that Barth has failed to establish that he was prejudiced by his
counsel’s performance.
The Court finds that Barth has failed to establish that his counsel was deficient in failing to
conduct plea negotiations. 	The Court also finds that Barth has failed to establish that he was
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prejudiced as a result of his counsel’s performance. 	As a result, the Court expressly finds that
Barth’s claim of ineffective assistance of counsel based on a failure to conduct plea negotiations
must fail as a matter of law.
3. 	DEFENDANT TESTIFYING
Barth next claims that his counsel was ineffective for advising him not to testify and for
failing to call him as a witness. Barth argues that he wanted to testify, but counsel advised him not
to do so because the jury would not believe him based on his prior convictions. According to Barth,
he made no objection at trial because of this evidence. Barth alleged that he had nothing to lose and
everything to gain by testifying.
A defendant has a constitutional right to testify, and only the defendant may waive that right.
See Rock v. Arkansas, 483 U.S. 44 (1987); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.
1987). A defendant’s waiver of his right to testify, like his waiver of other constitutional rights,
should be made voluntarily and knowingly. United States v. Bernloehr, 833 F.3d 749, 751 (8th Cir.
1987) (citing Boykin v. Alabama, 395 U.S. 238, 242-43 (1969); Johnson v. Zerbst, 304 U.S. 458,
464-65 (1938)). Although the defendant has the ultimate decision whether to waive his right to
testify, he must act affirmatively to assert that right. Id. If, during trial, a defendant sits idly and
does not express his desire to testify, a knowing and voluntary waiver is deemed to have occurred.
Frey v. Schuetzle, 151 F.3d 893, 898 (8th Cir. 1998); United Stats v. Blum, 65 F.3ed 1436, 1444
(8th Cir. 1995).
[The Eighth Circuit has] previously held that a knowing and voluntary waiver of the
right [to testify] may be found based on a defendant’s silence when his counsel rests
without calling him to testify. 	[The Eighth Circuit] stressed that under such
circumstances 	the 	defendant 	must 	act 	affirmatively 	rather 	than 	apparently
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acquiescing in his counsel’s advice that he not testify, and then later claiming that
his will to testify was overcome.
Frey v. Schuetzle, 151 F.3d 893, 898 (8th Cir. 1998) (internal quotations omitted) (citing United
States v. Bernloehr, 833 F.3d 749, 751 (8th Cir. 1987)).
It is clear from Barth’s amended brief in support of his petition that he was aware of his right
to testify. See Docket No. 228. Assuming Barth’s characterization of his discussions with counsel
is accurate, it is also clear that Barth knew that his counsel did not intend to call him as a witness.
Barth failed to voice to the Court his desire to testify. Eighth Circuit case law is clear – a defendant
must affirmatively assert his right to testify. Accordingly, Barth cannot claim his right to testify was
violated.
As to Barth’s claim that his counsel was ineffective for not calling him to testify at trial, this
strategic decision is given great deference. The Presentence Report (PSR) reveals that Bart had
several felony convictions, including prior felony drug convictions. 	See PSR, pp. 22-23. If Barth
had testified, the Government asserts that it could have and would have used Barth’s prior
convictions in cross-examination. Thus, the Court finds that counsel’s advice that Barth would
likely be impeached if he testified did not fall below an objective standard of reasonableness.
Moreover, Barth completely fails to allege or demonstrate that there was a reasonable
probability that the results of the trial would have been different had Barth testified. Barth does not
indicate what his testimony would have been, or how that testimony would have changed the
outcome of the trial. The Government provided a thorough summary of the witnesses and evidence
that implicated Barth in the drug conspiracy and other charges.
Large quantities of methamphetamine and marijuana and a firearm were
found at the Oliver County property at which Barth was staying. These items were
found within vehicles and a utility trailer connected to Barth. 	The firearm and
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ammunition, several bags of marijuana, and drug paraphernalia were found within
a B&B Roofing trailer (a company run by Barth’s brother) parked on the property.
(Tr. 223-26). Marijuana paraphernalia was found in a limousine also parked on the
property, the title to which was located inside the residence. (Tr. 236-37). A large
quantity of methamphetamine and additional marijuana was found in a pickup truck
parked on the property that Barth obtained from Ray Kershaw in exchange for
methamphetamine. (Tr. 260-61, 265-66, 272-74, 278-79, 477-81, 511-12, 515).
In addition, numerous witnesses testified about Barth’s involvement in
methamphetamine distribution. This includes the following:
(a) Ray Kershaw: In additional to testifying that Barth sold him a pick-up
truck for an 1/8 ounce of methamphetamine, Ray Kershaw testified he had
previously obtained methamphetamine from Barth. (Tr. 272-74, 278-79, 281-82).
(b) James Chrisikos: Chrisikos testified that he sold methamphetamine and
marijuana for Barth. (Tr. 337). Chrisikos also testified that shortly before the search
of the Oliver County property, Barth showed him methamphetamine, marijuana, and
a gun inside the utility trailer parked at the property. (Tr. 343-44). Chrisikos said
Barth indicated the gun was there in case somebody got stupid. (Tr. 345). Chrisikos
testified he obtained methamphetamine from Barth at this time which he intended to
resell. 	(Tr. 346). 	Chrisikos subsequently obtained an additional ounce of
methamphetamine from Barth at the farmstead. 	(Tr. 347-48). 	On this occasion,
Barth showed Chrisikos a large chunk of methamphetamine from which Barth took
an ounce. (Tr. 353-56). Chrisikos also obtained marijuana on that occasion. (Tr.
356).
(c) William Canada: Canada testified that he gave the keys to the Oliver
County resident to Barth after Canada’s arrest on unrelated charges. 	(Tr. 399).
Canada also testified that he obtained 8-balls of methamphetamine from Barth (Tr.
402). During those occasions, Canada observed Barth with more meth than what
Barth had sold to him. (Tr. 403). Finally, Canada testified that Barth bought two
hispanic males over to Canada’s residence, one of which was identified by Canada
as Vargas. (Tr. 404-06).
(d) Leslie Beneke Schmidt: Beneke Schmidt testified she observed Barth
providing methamphetamine and marijuana to others from a shop in Bismarck. (Tr.
592-97). She also testified that she had obtained methamphetamine from Barth at
the Oliver County property on several occasions. In approximately February 2003,
Beneke Schmidt observed Barth with a large quantity of methamphetamine at this
property. 	(Tr. 	605-611). 	She 	also 	testified 	that 	Barth 	offered 	to 	trade
methamphetamine for her vehicle, and that Barth told her he had obtained vehicles
from others persons who owed him money for methamphetamine sales. (Tr. 612).
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(e) Jason Kramer: 	Kramer also implicated Barth in drug distribution.
Kramer testified that, at one time, he had brought back methamphetamine from
California. (Tr. 643). Kramer was having difficulty selling the methamphetamine,
so he wen to Barth to discuss helping Kramer get rid of the methamphetamine. (Tr.
644-47). 	Barth informed Kramer that he could hook him up with some
methamphetamine. (Tr. 647). Kramer then began obtaining methamphetamine for
distribution from Barth on a weekly basis. (Tr. 647-51). Kramer also testified he
took a trip to Idaho with Barth and Vargas during which Barth informed Kramer that
“these guys” were his source of drugs. (Tr. 657-60). Kramer testified that he gave
Barth a vehicle to settle a drug debt Kramer had with Blaine Martinez. (Tr. 663-65).
(f) Russel Lipp: 	Lipp also implicated Barth in drug distribution. 	Lipp
testified that he purchased methamphetamine from Barth. (Tr. 717-20). In addition
to using the methamphetamine he purchased from Barth, Lipp also sold meth to
others. (Tr. 718-19). Lipp indicated the greatest amount of meth he received from
Barth on any one occasion was 3 ounces. (Tr. 718, 720-21). However, Lipp noted
he observed Barth with a larger quantity of methamphetamine. (Tr. 721).
(g) Rigoberto Fernandez: 	Fernandez also implicated Barth in drug
distribution. Fernandez testified that he was initially enlisted by Rosalio Vargas to
assist in transporting methamphetamine and marijuana from Washington state to
Bismarck. (Tr. 837-40). Fernandez testified that upon arrival in Bismarck, he would
take the drugs to Nancy Ferneau’s residence. (Tr. 842-43, 847). Each of the eight
successful trips involved approximately two pounds of methamphetamine and 3-5
pounds of marijuana. (Tr. 847). Fernandez observed Barth at Ferneau’s residence
on occasions after Fernandez had arrived with the drugs. (Tr. 848). Fernandez also
testified that on one of these occasions he observed Ferneau place methamphetamine
into a contained, walk to a vehicle driven by Barth, and drop the contained into the
vehicle. (Tr. 931-32). Fernandez also stated that a Monte Carlo automobile he used
to transport drugs from Washington was obtained by Vargas from Thomas Pinks in
exchange for methamphetamine and cocaine, but that it was Barth who conducted
this drugs-for-vehicle transaction. (Tr. 866-67).
Fernandez also testified that Vargas obtained a gun from Barth in exchange
for cocaine. (Tr. 853-54). Vargas had informed a fellow inmate at the Burleigh
County Detention Center that he had obtained the gun from Barth. (Tr. 1276-77).
This gun was seized from Vargas when he was stopped for a traffic violation in
Minnesota. (Tr. 854-55, 1263-68).
(h) Jennifer Wilke: 	Wilke also implicated Barth in methamphetamine
distribution. She met Barth through her boyfriend, Blaine Martinez. (Tr. 1075).
Wilke testified that she purchased methamphetamine from Barth on one occasion.
(Tr. 1076-77).
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(i) Blaine Martinez: Martinez also testified that he traveled with Barth to
Iowa to obtain methamphetamine for distribution. 	(Tr. 1113). 	He accompanied
Barth on approximately five trips to Iowa during which they would obtain
approximately a pound of methamphetamine per trip. (Tr. 1114). Upon returning
from Iowa, Barth gave methamphetamine to Martinez for distribution in the local
area. 	(Tr. 1115). 	After Martinez was arrested in April of 2000, Barth used a
corvette as collateral to post Martinez’ bond and secure his release from jail. (Tr.
1045, 1119). Upon his release, Martinez was picked up by Barth who had some
methamphetamine with him, part of which they distributed to others. (Tr. 1119-20).
(j) Scott Messner: 	Messner also implicated Barth in drug distribution.
Messner testified that he purchased methamphetamine from Barth. (Tr. 1186-87).
He did so four to six times a month for two or three months. (Tr. 1189). Messner
would use most of the methamphetamine and sell the rest. (Tr. 1188-89). Messner
testified that he would purchase as little as a gram and as much as an ounce from
Barth. 	(Tr. 1189). 	Messner stated that he believed that Barth was getting his
methamphetamine from two hispanic males named Rosalio and Junior. (Tr. 1198).
Messner indicated that Rosalio had asked Messner to assist him in transporting
drugs, but Messner declined. (Tr. 1198).
See Government’s Response Brief, pp. 14-18 (Docket No. 210).
As the record reflects, in addition to the drug and firearm evidence, no less than nine fact
witnesses implicated Barth on the charged offenses. After carefully reviewing the totality of the
evidence, the Court finds that the inclusion of any proffered testimony by Barth would not have
resulted in a different outcome at trial. The Government’s ability to impeach Barth with his prior
drug convictions would have lead to the introduction of additional incriminating evidence. The
Court finds that there was overwhelming evidence of Barth’s guilt. The Court further finds that even
if Barth had testified, he has failed to establish a reasonable probability that the results of the trial
would have been different.
The Court finds that Barth has failed to establish that his counsel was deficient in failing to
call him as a witness at trial or in advising Barth not to testify. The Court also finds that Barth has
failed to establish that he was prejudiced as a result of his counsel’s performance. As a result, the
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Court expressly finds that Barth’s claim of ineffective assistance of counsel based on failure to call
him as a witness and/or advising him not to testify must fail as a matter of law.
4. 	INVESTIGATION OF WITNESSES
Barth also contends that his counsel was ineffective for failing to properly investigate the
Government’s witnesses. 	Barth contends that counsel should have more fully investigated the
Government witnesses’ criminal histories and the extent of their cooperation with the Government.
To succeed on a claim of ineffective assistance of counsel based on an inadequate
investigation, a petitioner must demonstrate that a more thorough investigation would have revealed
evidence which would establish a reasonable probability that the results of the trial would have been
different. 	See Schone v. Purkett, 15 F.3d 785, 789-790 (8th Cir. 1993). Barth fails to set forth any
specific details as to why his counsel’s investigation was allegedly deficient. Barth also fails to
suggest what new evidence or legal arguments a more thorough investigation would have revealed.
The Court finds that Barth has failed to establish that his counsel was deficient in the
investigation into Government witnesses. The Court also finds that Barth has failed to establish that
he was prejudiced as a result of his counsel’s performance. As a result, the Court expressly finds
that Barth’s claim of ineffective assistance of counsel based on inadequate investigation must fail
as a matter of law.
5. 	CROSS-EXAMINATION OF WITNESSES
Barth also asserts that, as a result of the allegedly insufficient investigation, counsel’s cross-
examination of the witnesses was inadequate. 	The Government argues that Barth has failed to
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establish a reasonable probability that the results of the trial would have been different had Barth’s
counsel conducted a more effective cross-examination of the Government’s witnesses.
A trial counsel’s cross-examination techniques, like other matters of trial strategy, are
entrusted to the professional discretion of counsel. United States v. Villalpando, 259 F.3d 934, 939
(8th Cir. 2001). Counsel’s cross-examination may, in some instances, be so unreasonable that it may
constitute ineffective assistance of counsel. 	The Eighth Circuit has found a counsel’s cross-
examination techniques to be ineffective in instances where counsel “failed to cross-examine a
witness who made grossly inconsistent prior statement.” Whitfield v. Bowersox, 324 F.3d 1009,
1017 (8th Cir. 2003)(citing Hadley v. Groose, 97 F.3d 1131, 1135-1136 (8th Cir. 1996) and Driscoll
v. Delo, 71 F.3d 701, 709-711 (8th Cir. 1995)).
The record demonstrates that Barth’s trial counsel did in fact cross-examine numerous
witnesses about their prior convictions and any benefits, or possible benefits, they received (or
hoped to receive) in exchange for their cooperation or testimony. 	These witnesses included:
Raymond Kershaw (Tr. 287-288), James Chrisikos (Tr. 373-378, 387), William Canada (Tr. 412-
414), Leslie Beneke Schmidt (Tr. 617-620) Jason Kramer (Tr. 684-685), Russel Lipp (Tr. 733-734),
Rigoberto Fernandez (Tr. 878-880), James Rhone (Tr. 934-936), Jennifer Wilke (Tr. 1083-1084),
and Blaine Martinez (Tr. 1129-1132). Barth’s trial counsel also elicited from several witnesses
admissions that they were methamphetamine users. (Tr. 283, 386, 412-413, 617, 685-686). He
cross-examined a witness about lying to officers and the fact that his trial testimony was inconsistent
with his grand jury testimony (Tr. 731-733, 737). He also elicited from some witnesses that they
never saw Barth sell methamphetamine to others. (Tr. 1047, 1085).
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Barth fails to allege why or how the cross-examination that was conducted was deficient or
that a reasonable probability exists that the results of the trial would have been different had Barth’s
counsel conducted a more effective cross-examination of the Government’s witnesses. 	Barth’s
unsupported allegations are insufficient to demonstrate deficient performance and to overcome the
presumption that counsel acted competently. See Henderson v. Norris, 118 F.3d 1283, 1287 (8th
Cir. 1997); Carpenter v. United States, 720 F.2d 546, 547-48 (8th Cir. 1983). The evidence against
Barth was overwhelming. 	Even if the Court were to find that trial counsel’s performance was
deficient, Barth has failed to establish a reasonable probability that the results of the trial would have
been different.
6. 	OBJECTION TO SENTENCING ENHANCEMENTS
Finally, Barth argues that his counsel was ineffective because counsel did not challenge the
sentencing enhancements. Barth argues that counsel was ineffective because counsel did not raise
an objection under Blakely v. Washington, 542 U.S. 296 (2004), challenging the use of his prior drug
convictions to impose a life sentence. The Government asserts that Barth’s claim is without merit
because Blakely was not decided at the time of Barth’s sentencing and Barth’s sentence was imposed
pursuant to 21 U.S.C. § 841 rather than the United States Sentencing Guidelines.
It is well-established that counsel is not ineffective for failing to anticipate a change in the
law. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999); Horne v. Trickey, 895 F.2d 497, 500
(8th Cir. 1990). The Court finds that Barth has failed to establish that counsel’s failure to object to
his sentence at the time of sentencing was deficient performance.
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Even if Barth’s counsel had raised such an objection at sentencing, it would not have resulted
in prejudice. 	In his direct appeal, the Eighth Circuit concluded that Barth’s sentence was not
determined under the United States Sentencing Guidelines. Rather, his life sentences were imposed
pursuant to 21 U.S.C. § 841. See United States v. Barth, 424 F.3d 753, 764-65 (8th Cir. 2005).
21 U.S.C. § 841 provides for a mandatory life sentence for defendants (such as Barth) whose offense
involves 500 grams or more of a mixture or substance containing a detectable amount of
methamphetamine and who have “two or more prior convictions for a felony drug offense.” See 21
U.S.C. § 841. The jury found beyond a reasonable doubt that Barth’s offenses involved 500 grams
or more of a mixture or substance containing a detectable amount of methamphetamine. The jury
was not required to make a finding as to Barth’s prior felony drug convictions. See Barth, 424 F.3d
753, 765 (8th Cir. 2005). As a result, a Blakely objection would not have resulted in a different
sentence.
The same is true of Barth’s conviction for possessing a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 942(c)(1)(A) and as alleged in Count Five of the
Indictment. The Court imposed a five-year consecutive sentence of imprisonment on this conviction.
The statute does not permit a court to impose a sentence that is above the statutory maximum
sentence of life imprisonment for the offense. United States v. Gamboa, 439 F.3d 796, 811 (8th Cir.
2006). Rather, the structure of 18 U.S.C. § 924(c) sets forth detailed statutory minimums. Thus, a
Blakely-type objection by counsel at Barth’s sentencing hearing would have been without merit, and
even if made, would not have altered the statutorily-mandated sentence that was imposed.
III. 	CONCLUSION
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1The Court of Appeals for the Eighth Circuit has opined that the district courts possess the authority to issue
Certificates of Appealability under Section 2253(c). Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
16
For the reasons set forth above, the Court DENIES the Defendant’s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255. (Docket No. 212).
In addition, the Court certifies that an appeal from the denial of this 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 before the
Court, dismissal of the motion is not debatable, reasonably subject to a different outcome on appeal,
or otherwise deserving of further proceedings. Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983).
Therefore, a certificate of appealability will not be issued by this Court. 1
If Barth desires further review of his Motion to Vacate, Set Aside, or Correct Sentence under
28 U.S.C. § 2255, he may request the issuance of a certificate of appealability by a circuit judge of
the Eighth Circuit Court of Appeals in accordance with Tiedeman v. Benson, 122 F.3d 518, 250-252
(8th Cir. 1997).
IT IS SO ORDERED
Dated this 22 nd day of May, 2007.
/s/ Daniel L. Hovland
Daniel L. Hovland, Chief Judge
United States District Court
Case 1:03-cr-00046-DLH Document 233 Filed 05/22/07 Page 16 of 16