USA v. Modisett et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
Michael Antwain Modisett,
Petitioner,
vs.
United States of America,
Respondent.
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ORDER DENYING REMAINING
CLAIMS ON MOTION TO VACATE,
SET ASIDE OR CORRECT
SENTENCE
Case No. 3:19-cv-00057
United States of America,
Plaintiff,
vs.
Michael Antwain Modisett,
Defendant.
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Case No. 3:14-cr-00018-01
On April 1, 2019, Defendant Michael Antwain Modisett filed a “Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.” Doc. No. 388.
After allowing limited discovery and extensive briefing, on March 8, 2021, this Court denied in
part three of the five claims Modisett raised in his § 2255 motion. See Doc. No. 450. On the two
remaining claims, the Court ordered additional briefing and an evidentiary hearing. Id. The Court
held the evidentiary hearing on July 26, 2021. Doc. No. 458. Both parties filed post-hearing briefs
on January 14, 2022. Doc. Nos. 468, 469.
As summarized in the Court’s prior order (Doc. No. 450), the two remaining claims center
on the use of a certified 2003 Minnesota drug possession conviction to enhance Modisett’s
sentencing range to life under the Controlled Substances Act (“CSA”). Modisett’s chief argument
is that the Minnesota state law for the 2003 drug possession conviction is categorically broader
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than the definition of a “felony drug offense” under the CSA, and as a result, the conviction should
not have been used as the basis for the sentencing enhancement that enhanced his sentence to life.
More specifically, the two remaining issues are (1) whether Modisett’s trial, sentencing, and
appellate counsel were ineffective for failing to challenge the 2003 Minnesota conviction and
sentencing enhancement on “felony drug offense” and categorical approach grounds, and (2)
whether the 2003 Minnesota conviction is categorically broader than the definition of a “felony
drug offense” under 21 U.S.C. § 802(44). For the reasons below, the two remaining claims for
§ 2255 relief are denied.
I. 	DISCUSSION AND ANALYSIS
The Court previously reviewed the extensive factual background of Modisett’s case and
appeal in detail, and for efficiency purposes, specifically incorporates that factual background for
the purposes of this order. See Doc. No. 450. As noted above, the Court held an evidentiary hearing
on the two remaining claims at issue. Doc. No. 458. At that hearing, Modisett’s trial, sentencing,
and appellate counsel each testified as to their strategy in challenging the 2003 Minnesota
conviction as a sentencing enhancement. Doc. No. 460. Trial and sentencing counsel testified, and
the record accurately reflects, that they each challenged Modisett’s 2003 conviction and argued to
the Court that the conviction was not a qualifying “felony” conviction, though they admitted they
did not challenge the conviction on the grounds that the Minnesota statute of conviction was
categorically broader than the CSA. Id. Modisett’s appellate counsel also testified and noted that
he was limited on appeal to the record created with the district court. Id. He also stated there can
be strategic reasons to not raise certain issues on appeal that may be more suited to a § 2255
challenge. Id. Modisett also testified at the hearing. Id.
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A. 	Ineffective Assistance of Counsel
Turning now to the substance of the two remaining claims, as to Modisett’s ineffective
assistance claim, to merit relief on his ineffective assistance of counsel claims he must meet both
prongs of the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984).
Under Strickland, a petitioner must first establish that defense counsel’s representation was
constitutionally deficient, meaning that counsel’s performance fell below an objective standard of
reasonableness. Meza-Lopez v. United States, 929 F.3d 1041, 1044 (8th Cir. 2019) (citing
Strickland, 466 U.S. at 687–88). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. “Judicial scrutiny of counsel’s performance must be highly
deferential.” Id. at 689. Courts must strive to avoid hindsight and second-guessing by viewing the
representation from counsel’s perspective at the time of the alleged error. Kemp v. Kelley, 924
F.3d 489, 500 (8th Cir. 2019). There is a strong presumption that defense counsel provided
“adequate assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690; see also Camacho v. Kelley, 888 F.3d 389, 394 (8th Cir.
2018). Strategic decisions counsel made after a thorough investigation of both the law and facts
regarding plausible options are virtually unchallengeable. Strickland, 466 U.S. at 690; see also
United States v. Ngombwa, 893 F.3d 546, 552 (8th Cir. 2018).
To satisfy the second prong, the defendant must demonstrate prejudice resulting from the
deficient representation. Strickland, 466 U.S. at 687. Error alone is insufficient to establish
prejudice and even an error that had “some conceivable effect on the outcome” will not suffice.
Id. at 693. Rather, the petitioner must prove “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Adejumo v. United
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States, 908 F.3d 357, 361 (8th Cir. 2018) (quoting Strickland, 466 U.S. at 694). A reasonable
probability is one “sufficient to undermine confidence in the outcome.” Wiggins v. Smith, 539
U.S. 510, 534 (2003) (quoting Strickland, 466 U.S. at 694).
Here, after careful consideration and research, Modisett’s ineffective assistance claim fails
to satisfy the first prong of Strickland. By way of review, Modisett alleges his trial, sentencing,
and appellate counsel were all ineffective for failing to argue that his 2003 Minnesota conviction
was not a predicate “felony drug offense” because the state law of conviction is categorically
broader than the CSA. The Court previously noted in its order for an evidentiary hearing on this
issue (see Doc. No. 450) that the “categorical approach (and the modified categorical approach,
when necessary) applied to the question of whether a prior conviction qualified as a ‘felony drug
offense.’” Id. However, after additional research and review of the law at the time of Modisett’s
trial, sentencing, and appeal, the applicability of the categorical approach to a predicate conviction
for the purpose of a sentencing enhancement under the CSA was unclear at best.
While not cited by either party, the Court finds Stewart v. United States, 552 F. Supp. 3d
834 (S.D. Iowa 2021) particularly persuasive. In Stewart, the court addressed a strikingly similar
“felony drug offense” and ineffective assistance of counsel claim in a § 2255 motion. Id. The
defendant in Stewart argued, like Modisett argues here, that his prior state conviction under Illinois
law did not qualify as a predicate “felony drug offense” for the purposes of sentencing
enhancements under the CSA because the state law of conviction was categorically broader than
the CSA. Id.
At its core, the categorical approach is a framework of analysis designed to review prior
state convictions against the corresponding federal statute to ensure the state law of conviction is
not broader than the analogous federal statute at issue. As noted in Stewart, the categorical
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approach and its progeny originated from the Armed Career Criminal Act (“ACCA”) and the
related sentencing enhancements under that specific statute. Id. Importantly though, the United
States Supreme Court has not applied the categorical approach to sentencing enhancements under
the CSA, which was the statute at issue in Stewart and the statute at issue here. Id. In the absence
of direct authority from the United States Supreme Court, the circuit courts have been (and are
currently) divided on the question of whether the categorical approach applies to predicate
convictions and the related sentencing enhancements under the CSA. Id. The First, Fourth, Fifth,
and Ninth Circuits apply the categorical approach, while the Sixth and Tenth Circuits do not. Id.
(citing cases). The law in the Eighth Circuit, until quite recently, was unclear. Id. To that end,
Stewart reviews the line of Eighth Circuit cases that highlights the confusion of the applicability
of the categorical approach to the CSA, starting with United States v. Hawkins, 548 F.3d 1143
(8th Cir. 2008) and United States v. Brown, 598 F.3d 1013 (8th Cir. 2010), and evolving to United
States v. Boleyn, 929 F.3d 932 (8th Cir. 2019). Id.
Modisett’s trial, sentencing, and appeal spanned the years from 2014-2017. Reviewing the
Eighth Circuit cases noted in Stewart, it was not at all clear that the categorical approach applied
to predicate convictions forming the basis for sentencing enhancements under the CSA. And this
discrepancy in the state of the law and treatment of prior convictions under the CSA at the time of
Modisett’s trial, sentencing, and appeal casts serious doubt on any argument that trial, sentencing,
and appellate counsels’ failure to raise the categorical approach challenge fell below an objective
standard of reasonableness. After all, “Counsel is not ineffective for failing to raise an argument
that was novel at the time of the proceeding, even if later found to be meritorious.” See Pierce v.
United States, 686 F.3d 529, 533 (8th Cir. 2012). The failure of Modisett’s trial, sentencing, and
appeal counsel to raise a categorical approach challenge to his 2003 Minnesota conviction, when
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it was unclear if the categorical approach even applied to predicate convictions under the CSA,
cannot sustain an ineffective assistance of counsel claim.
Given the state of law and on this record, the Court finds that Modisett cannot satisfy the
first prong of Strickland and concludes that his trial, sentencing, and appellate counsels’
performance did not fall below an objective standard of reasonableness. Accordingly, the Court
denies § 2255 relief on the ineffective assistance claim.
B. 	2003 Minnesota Conviction and Categorical Approach
With the ineffective assistance claim resolved, this leaves Modisett’s substantive challenge
to the 2003 Minnesota conviction and its use as a predicate “felony drug offense” for a sentencing
enhancement under the CSA. While related to the ineffective assistance claim, for his final claim,
Modisett argues the Minnesota state law of conviction for the 2003 conviction is categorically
broader than the CSA, and as a result, the conviction was not a predicate “felony drug offense”
and should not have been used to enhance his sentence to life.
“28 U.S.C. § 2255 provides a federal prisoner an avenue for relief if his ‘sentence was
imposed in violation of the Constitution or laws of the United States, or . . . was in excess of the
maximum authorized by law.’” King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting
28 U.S.C. § 2255(a)). This requires a showing of either constitutional or jurisdictional error, or a
“fundamental defect” resulting in a “complete miscarriage of justice.” Davis v. United States, 417
U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A 28 U.S.C. § 2255 motion
is not a substitute for a direct appeal, and it is not the proper way to complain about simple trial
errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A 28 U.S.C. § 2255 movant
“must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady,
456 U.S. 152, 166 (1982).
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The Court previously reviewed the law as it relates to the categorical and modified
categorical approach and incorporates those legal standards here. See Doc. No. 450. As discussed
at length above, however, whether the categorical approach applied to sentencing enhancements
under the CSA at the time of Modisett’s trial, sentencing, and appeal is unclear. So, the issue then
becomes from what point in time the Court analyzes the prior conviction – said another way, does
the Court apply the law in effect at the time of Modisett’s case, or does the Court apply the law as
it stands today? Modisett, for his part, encourages the Court to apply the law as it stands today and
proceed with a categorical (and likely modified categorical) analysis of the 2003 Minnesota
conviction. However, after careful consideration, the Court is unwilling to do so.
In the absence of any authority directing federal courts to apply the categorical (and
modified categorical) approach retroactively to sentencing enhancements under the CSA, 1 this
Court declines to grant Modisett relief as to his substantive challenge to the 2003 Minnesota
conviction. While there is no question the law has evolved since the time of Modisett’s trial,
sentencing, and appeal, the controlling law in this circuit was, again, unclear at best at the time
Modisett was sentenced and appealed. Simply because one court (or judge) may now be more
receptive to a categorical approach challenge does not mean there has been “a fundamental defect
which inherently results in a miscarriage of justice[.]” Hill v. United States, 368 U.S. 424 (1962).
Accordingly, because the Court cannot conclude there has been a fundamental defect resulting in
a miscarriage of justice, the Court denies Modisett § 2255 relief on his final claim.
1 The Court notes that federal courts, in reviewing prior convictions under the ACCA, especially
considering Johnson v. United States, 135 S. Ct. 2551 (2015), apply a de novo standard of review
and are not necessarily constrained to the law as it existed at the time of sentencing. These cases,
however, are limited to sentencing enhancements under the ACCA (and not the CSA), and again,
the Supreme Court has been clear that the categorical approach does apply to the ACCA. There
Court is unaware of any authority applying the same standards of review to sentencing
enhancements under the CSA.
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On a final note, the Court recognizes the potential strength of Modisett’s argument on the
substantive categorical approach challenge. To be sure, the underlying documents from the State
of Minnesota on the 2003 conviction seem, in this Court’s initial view, to be possibly problematic
Shepard documents. The United States would be wise to perform a more robust assessment of the
underlying state documents when certifying prior convictions for the purposes of sentencing
enhancements. All that said, once again, without authority directing this Court to apply the
categorical approach retroactively to sentencing enhancements under the CSA, the Court cannot
conclude that there has been a fundamental defect resulting in a miscarriage of justice.
II. 	CONCLUSION
The Court has carefully reviewed the entire record, the parties’ filings, and the relevant
case law, and Modisett’s motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255
(Doc. 	No. 	388) 	is 	in 	all 	things 	DENIED. 	The 	matter 	is 	hereby 	DISMISSED 	WITH
PREJUDICE. Based upon the entire record, and in this Court’s view, dismissal of the § 2255
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 Modisett desires further review of his § 2255 motion, he may certainly 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 14th day of June, 2022.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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