Shoulders v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JAMIE SHOULDERS,
Petitioner 5:21-cv-5082
vs.
UNITED STATES OF AMERICA, MEMORANDUM
Respondent AND ORDER
Pending before the Court is a 28 U.S.C. § 2255 Motion to Vacate, Set Aside,
or Correct Sentence filed by Jamie Shoulders (Doc. 1) and the Government's
responsive Motion to Dismiss(Doc. 27). For the reasons set forth below, the Court
grants the Government's motion.
I. Background
In 2018, Petitioner pleaded guilty to Count 2 of a superseding indictment
(5:17-cr-50090, Doc. 59) alleging second-degree Murder in violation of 18 U.S.C.
§§ 2, 1111 and 1153. He was sentenced to 300 months in prison and 5 years of
supervised release. He appealed to the Eighth Circuit, which denied relief on the
sentencing issues Shoulders raised. United States v. Shoulders, 988 F.3d 1061 (8th
Cir. 2021).
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Petitioner's offense arose from the killing ofthe victim, whom Petitioner and
others had met to purchase controlled substances. Petitioner admitted he went to the
driver's side window ofthe van where the victim and two other persons were sitting
and fired at him in the driver's seat at close range.(Id., Doc. 185). One ofthe other
persons with Petitioner also fired shots at close range. (Id.) A third person in
Petitioner's group, who was in the van when the shots were fired, avoided the gunfire
and fled the vicinity. (Id.). The victim's cousin, who had accompanied him to the
proposed drug sale and was in the front passenger seat of the van, also escaped the
gunfire.(Id.). Subsequently,Petitioner was indicted on assault and firearms offenses,
(id.. Doc. 35), and a superseding indictment was filed dismissing the assault offenses
and substituting the murder and firearms offense.(Id., Doc. 59). Petitioner pleaded
guilty and agreed to a factual basis statement which recounted the above facts. (Id.,
Doc. 185). During plea negotiations, the Government offered 20 years and required
cooperation.(5:21-cv-5082, Doc. 22). Shoulders rejected the offer.(Id.). He pleaded
guilty without a joint sentencing recommendation.(5:17-cr-50090, Doc. 299; Doc.
364,PgID3180).
Prior to sentencing. Petitioner's counsel filed a sentencing memorandum
arguing for a sentence ofno more than 18 years. (Id., Doc. 285). Counsel supported
the request with comparisons to other murder cases that had been handled by the
court, the lack ofprolonged suffering by the victim, and defendant's apology. (Id.).
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The Government also submitted a sentencing memorandum requesting an upward
departure based on several factors in 18 U.S.C. § 3553. (Id., Doc. 292). At
sentencing, the court departed upward two levels,justifying the "upward variance"
with numerous factors, including the danger of death for others in the van when
Shoulders fired at the victim and the "callous" nature ofthe offense. (Id., Doc. 307,
PgID 2757). The court determined that departing upward from the Federal
Sentencing Guidelines(FSG)range of 210-262 months based on the death, 5K2.1,
and use of the firearm, 5K2.6, was justified. The resulting FSG range was 262-327
months, and the judge imposed 300 months. The court stated that in imposing this
sentence, it was denying the defense motion for a downward departure (id., PgID
2758-59)and also preserved the defense objection to an upward departure.(Id. PgID
2765).
The Eighth Circuit affirmed, finding the court did not abuse discretion in
imposing the sentence. 988 F.3d at 1065. The court determined 300 months was not
a substantively unreasonable sentence. In doing so it rejected Defendant's claim the
court had given too much weight to his use of a gun, confirmed the court did not
have to accept Defendant's explanation that he "freaked out," and stated that the
court properly considered that others in the van were at risk of serious harm. Id. at
1064-65. Reviewing under the plain error standard, the court also rejected
defendant's assertion that the court had made serious procedural errors in making a
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mistake about a fact and providing an inadequate explanation for the sentence. The
Eighth Circuit noted the court had corrected its mistake about whether the victim's
wife was in the van at the time of the murder, determined there was no reasonable
probability any error affected the sentence, and concluded the court's explanation
for the sentence was adequate. Id. at 1064-65. The Eighth Circuit found there was
no error in the court's departing upward because the sentencing judge stated he
would have imposed the same sentence with a variance, citing several factors,
including Defendant's indiscriminate firing into the van, his flight, the risk his firing
posed to others in the van,the extreme nature ofthe offense, and the need to protect
the community.Id. at 1063.
Shoulders' § 2255 motion alleges his defense counsel rendered ineffective
assistance in violation of the Sixth Amendment in two respects. First, Petitioner
alleges counsel rendered deficient performance in failing to object to the court's
upward departures at sentencing under FSG 5K2.1 and 5K2.6.(5:21-cv-5082, Doc.
1). Second, Petitioner alleges counsel guaranteed him a sentence of 18 years. (Id.)
Petitioner claims prejudice from the first alleged deficiency by arguing counsel's
failure to object prevented Shoulders from attacking his above-guidelines sentence.
(Id.). He also makes reference to the PROTECT Act, appearing in Doc. 2 to argue
his avenues of appeal were somehow blocked. With respect to the second alleged
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deficiency, Shoulders claims prejudice in that he would not have pleaded guilty if
he had known his sentence would be higher.(Id.).
11. Discussion
1. Legal Standards
a. 28 U.S.C. § 2255
In accordance with 28 U.S.C. § 2255,"[a] prisoner in custody under sentence
... claiming the right to be released upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence ... or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate, set aside or correct
the sentence." Id. § 2255(a). See Raymond v. United States, 933 F.3d 988, 991 (8th
Cir. 2019)(§ 2255 may provide relieffor jurisdictional error, constitutional error, or
error oflaw). If an error oflaw constitutes a "fundamental defect which inherently
results in a complete miscarriage ofjustice," the court may grant relief. Sun Bear v.
United States, 644 F.3d 700, 704(8th Cir. 2011).
b. F. R. C.P. 12(b)(6) motion
The Government has moved to dismiss Shoulders' motion under F.R.C.P.
12(b)(6). (Doc. 11). The standard governing dismissal of a motion to dismiss was
set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) as follows: "To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
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true, to 'state a claim to reliefthat is plausible on its face'"(quoting Bell Atlantic v.
Twombly, 550 U.S. 544, 570 (2007)). See Spagna v. Phi Kappa Psi, Inc., 30 F.4th
710, 715 (8th Cir. 2022)(dismissal proper where factual allegations failed to state a
plausible claim for relief and amounted to only a possibility that relief was
warranted); Faulk v. City ofSt. Louis, 30 F.4th 739, 744 (8th Cir. 2022)(quoting
Iqbal standard and reversing denial of motion to dismiss).
c. Ineffective assistance of counsel
Ineffective assistance of counsel serves as the basis for Petitioner's § 2255
motion, thus invoking the two-part standard set forth in Strickland v. Washington,
466 U.S.668(1984). First, petitioner must establish that counsel's performance was
"deficient," meaning it "fell below an objective standard of reasonableness." Id. at
687-88. A mere assertion ofineffectiveness is insufficient. Rather the movant must
show that "counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment,"Id. The court
presumes counsel's representation was reasonable. Thomas v. United States, 737
F.3d 1202, 1207 (8th Cir. 2013). This means the court "must indulge a strong
presumption that counsel's conduct [fell] within the wide range of reasonable
professional assistance" to which a criminal defendant is entitled. Meza-Lopez v.
United States, 929 F.3d 1041, 1044 (8th Cir. 2019)(quoting Strickland, at 689).
Counsel's performance is evaluated on the facts of the case,"viewed at the time of
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counsel's conduct." at 690. Sqq also,Adejuma v. United States,9^^^?36.
357, 361 (8th Cir. 2018) (risk to defendant from his perjury apparent only in
hindsight); Johnson v. United States, 278 F.3d 839, 842(8th Cir. 2002)(cautioning
against "second guessing").
A petitioner has a second burden to address when alleging ineffective
assistance of counsel. As Strickland held, the individual "must show that the
deficient performance prejudiced the defense." 466 U.S. at 687. In practice, this
means the individual must establish "that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different." Allen v. United States, 854 F.3d 428, 432 (8th Cir. 2017) (quoting
Strickland, at 694). See also Theus v. United States, 611 F.3d 441, 446 (8th Cir.
2010).
An allegation of ineffective assistance of counsel in the guilty plea context
implicates additional considerations. As with all guilty pleas, the plea must be
voluntary and intelligent. Bousley v. United States, 523 U.S. 614, 618, 118 S.Ct.
1694, 140 L.Ed.2d 828 (1998). To prevail on a claim of ineffective assistance of
counsel where the individual has pleaded guilty, the individual must show "there is
a reasonable probability that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." United States v. Frausto, 754 F.3d
640, 643 (8th Cir. 2014)(quoting/7/// v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366,
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88 L,Ed.2d 203 (1985)). A cautionary note is in order in this context, as the Eighth
Circuit repeated the admonition that,"Courts should not upset a plea solely because
ofpost hoc assertions from a defendant about how he would have pleaded but for
his attorney's deficiencies." Meza-Zopez,929 F.3d at 1045 (quoting Zee v. United
States, U.S. , 137 S. Ct. 1958, 1967, 198 L.Ed.2d 476(2017)).
When the defendant challenges the sentence received as a result of the plea
and alleges ineffective counsel. Eighth Circuit guidance is comprehensive. As
discussed in United States v. Quiroga, "inaccurate advice of counsel about the
sentencing guidelines or likely punishment does not render involuntary a defendant's
decision to plead guilty, so long as the defendant is informed of the maximum
possible sentence permitted by statute and the court's ability to sentence within that
range." 554 F.3d 1150, 1155 (8th Cir. 2009). In support of its position the court
cited numerous cases, among them United States v. Gomez, 326 F.3d 971, 975 (8th
Cir. 2003)(plea agreement stated its sentencing provisions were not binding on
court; plea not involuntary when defendant was sentenced as career offender);
United States v. Spears, 235 F.3d 1150, 1152(8th Cir. 2001)(defendant's confusion
about guidelines did not render plea involuntary); United States v. Silva, 430 F.3d
1096, 1100(10th Cir. 2005)(guilty plea not involuntary when defendant was aware
Government had not agreed to a specific sentence and he knew what the maximum
was).
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2. Analysis of ineffective assistance of counsel allegations
a. Failure to object to upward departure based on FSG 5K2.1 and 5K2.6
Petitioner claims counsel was ineffective in failing to object to the court's
reliance on death(5K2.1)and use ofweapons(5K2.6)to justify an upward departure
under the Federal Sentencing Guidelines. He argues the consideration of death as a
factor was improper because the offense of murder already includes death and
therefore,this amounted to double-counting by the court. He argues use ofa weapon
in a murder is already included within the heartland of such offenses. He theorizes
prejudice resulted because the failure to object prevented him from attacking his
sentence on appeal in the manner he desired.(Doc. 1).
As noted above, Petitioner's counsel filed a sentencing memorandum
objecting to any upward departures, explaining why none should apply, comparing
petitioner's crime to other murders, and arguing for no more than an 18-year
sentence.(5:17-cr-50090,Doc. 285). The court stated that counsel had preserved his
objections, (id.. Doc. 307, PgID 2765), and the court was denying the request for
downward departure. (Id., Doc. 307, PgID 2758-59). The Eighth Circuit reviewed
the sentence and noted the sentencing court would have given the same prison term
whether it was departing upward or varying from the Guidelines. Shoulders, 988
F.3d at 1063 (citing United States v, Grandon,714 F.3d 1093, 1098(8th Cir. 2013)).
In conducting its review for substantive reasonableness,the Eighth Circuit employed
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the abuse of discretion standard, {id. at 1065), rather than the less-favorable plain
error standard, meaning counsel had preserved his objection. Further, the Eighth
Circuit reviewed in detail the comments made by the judge in imposing sentence and
found no abuse of discretion. Id. at 1063-64. With respect to alleged procedural
errors, the court reviewed using the plain error standard and again, found no error
on the part ofthe sentencing judge. Id.
Shoulders has the burden to establish deficient performance by counsel and
prejudice. The record establishes that counsel's performance was not deficient, in
that he argued for the sentence Shoulders hoped to receive and submitted a
sentencing memorandum setting forth the justification for such a sentence. When
the court declined to impose the sentence Shoulders desired, and instead departed
upward using the factors at FSG 5K2.1 and 5K2.6, it advised Shoulders and his
counsel that counsel's objections were preserved. The Eighth Circuit adopted this
determination by reviewing with the abuse of discretion standard. Thus, this Court
finds counsel made the appropriate objections and his performance was not deficient.
Furthermore, if the performance was deficient. Shoulders suffered no
prejudice. As the Eighth Circuit noted, he would have received the same sentence
whether the court viewed it as a departure or variance. Further, the Eighth Circuit
rejected Defendant's claims that the sentence was substantively unreasonable, and
any appellate effort on Shoulders' part raising different arguments would have been
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to no avail. See generally, United States v. Miles, 2022 WL 3151821, *1 (8th Cir.
2022) (approving variance based on factors already included in FSG if the
Guidelines do not accurately reflect the facts of the case); United States v. David,
682 F.3d 1074, 1077 (8th Cir. 2012)(same); United States v. Chase, 560 F.3d 828,
831 (8th Cir. 2009)(noting that"factors that have already been taken into account in
calculating the advisory Guidelines range can nevertheless form the basis of a
variance").
The Court finds Shoulders has failed to establish ineffective assistance of
counsel. Counsel's performance with respect to the upward departures in sentencing
for the death resulting from petitioner's conduct and from his use of a weapon in
committing the murder was not deficient. Further, petitioner suffered no prejudice
resulting from counsel's performance. Shoulders' petition for relief under § 2255
on this ground is denied.
b. Alleged promise of a specific sentence
Petitioner asserts that defense counsel guaranteed him a sentence of 18 years.
(Doc. 1). He argues this was deficient performance by counsel given the 25-year
sentence he received. He argues further that he was prejudiced in that he would not
have pleaded guilty without the promise of an 18-year sentence.
Petitioner pleaded guilty before the magistrate judge. (5;17-cr-50090, Doc.
363). During the plea colloquy the judge advised petitioner of his right to plead not
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guilty and questioned him about whether there were any threats, improper promises,
or misrepresentations made to him. (Id.). She advised him of the maximum
sentence. (Id.). At the conclusion of the hearing, she found that his plea was
knowing and voluntary, and accepted it. (Id.). The magistrate prepared a report and
recommendation,(id.. Doc.190), which the trial court accepted.(Id., Doc. 193).
Prior to sentencing. Defense counsel filed a sentencing memorandum on
Shoulders' behalf, requesting that the court not exceed an 18-year sentence. (Id.,
Doc. 285). Counsel asserts in this § 2255 proceeding that he told Petitioner he
"hoped" the sentence would be 18 years, but also reminded him the Government had
asked for 30 years in its sentencing memorandum(5:21-cv-5082,Doc. 22). Counsel
also asserts he advised Petitioner, who had rejected a plea agreement of 20 years
with a joint recommendation for sentencing, that the Government could request that
the court sentence at a higher level.(Id.).
The sentencing judge's colloquy with petitioner at sentencing reflects that the
court ascertained that petitioner and his counsel had sufficient time to prepare for
sentencing. (5:17-cr-50090, Doc. 307). He explained the Federal Sentencing
Guidelines in detail.(Id.). He reminded petitioner that both prosecution and defense
could argue for any sentence within statutory limits, and that Petitioner faced a
maximum sentence of life in prison. (Id., PgID 2717). The court discussed with
Petitioner his counsel's request for an 18-year sentence and other aspects of
/
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Petitioner's offense. The court also noted the co-defendant had been convicted of
premeditated murder and received a life sentence. (Id., PgID 2744). He addressed
the Government's argument that the FSG 5K2.1 and 5K2.6 factors justified an
upward departure. (Id., PgID 2749). In imposing sentence, the court provided a
detailed rationale for the 25-year penalty, citing, among other factors, the callous
nature of the offense, the danger to the occupants of the vehicle, the perpetrators'
flight from the scene. Defendant's not receiving a 10-year mandatory sentence based
on the use ofa firearm,fairness in sentencing,and the need to protect the community.
(Id.).
Based on the holdings ofQuiroga and the additional Eighth Circuit cases cited
therein. Petitioner has not established that his guilty plea is invalid because of the
sentence he received. 554 F.3d at 1155. The plea colloquy resulted in a valid plea of
guilty from Shoulders. The sentencing court complied with the requirement that
Shoulders be informed ofthe maximum penalty and that the court could sentence up
to that level. Precedent dictates that these are the minimum requirements for
upholding a guilty plea in this context, and, as is evident from the transcripts ofthe
change of plea hearing and sentencing hearing. Shoulders received much more in
these proceedings than the minimum required.
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Petitioner has couched his arguments about his sentence in the form of an
assertion ofineffective assistance ofcounsel. Counsel has responded to Petitioner's
allegation that counsel promised an 18-year sentence with substantial evidence that
he did not do so. (Doc. 22). He cites his practice of never promising a specific
sentence to a defendant in in a criminal case. (Id.) In this case, that is particularly
persuasive given that Petitioner had rejected a plea agreement for a 20-year sentence,
and he had placed himself in a position of having no cap on his sentence. Counsel
has denied making a promise of a sentence lower than what the Government had
offered,(id.) and it would be unlikely that experienced defense counsel would have
done so. Shoulders has not met his burden ofestablishing that counsel made such a
promise. Even if counsel did so. Shoulders suffered no prejudice. His plea was
knowing and voluntary, and it did not become invalid if counsel gave erroneous
advice about sentencing. Quiroga, 554 F.3d at 1155; Gomez, 326 F.3d at 975. See
also Walker V. United States, 810 F.3d 568,578(8th Cir. 2016).
The Court finds that the change of plea and sentencing proceedings
demonstrate that petitioner was advised ofthe consequences of pleading guilty, that
counsel for both sides could argue for any sentence within the applicable range, and
that the court could impose any such sentence. The Court further finds that Petitioner
has not met his burden of establishing deficient performance by defense counsel by
allegedly promising Petitioner would receive a specific sentence, and he has not
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established prejudice under the standard ofStrickland. Petitioner's motion for relief
under § 2255 on this ground is denied.
III. Evidentiary Hearing and Certificate of Appealability
If the motion, files, and records of the case conclusively establish that the
petitioner is not entitled to relief, the court can dispense with an evidentiary
hearing. See Garcia v. United States, 679 F.3d 1013,1014 (8th Cir. 2012). There is
no need for an evidentiary hearing in this case because it is clear from the record that
Petitioner's claims do not warrant relief under 28 U.S.C. § 2255. Walker, 810 F.3d
at 580(affirming denial ofevidentiary hearing where no further factual development
needed).
When the district court has denied a motion under 28 U.S.C. § 2255, the
Petitioner may not appeal without a certificate of appealability. Such a certificate
may issue "only if the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). A "substantial showing" under this
section is a showing that"reasonable jurists would find the district court's assessment
of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473,
484 (2000). A "substantial showing" is made if "a court could resolve the issues
differently, or the issues deserve flirther proceedings." Cox v. Norris, 133 F.3d 565,
569(8th Cir.1997). Petitioner has not made a substantial showing ofthe denial of a
constitutional right and the certificate of appealability will not issue.
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Conclusion
Following his conviction and sentence, Petitioner appealed to the Eighth
Circuit, which conducted a thorough and careful review of his allegations of error in
sentencing before denying relief. Petitioner's § 2255 motion couches his sentencing
claims in the guise of ineffective assistance of counsel, which this Court has
examined carefully. The Court finds that Petitioner has failed to establish ineffective
assistance of counsel based on the alleged failure to object to upward departures
under the FSG and in allegedly promising Petitioner he would receive a specific
sentence. The Court finds Petitioner did not establish either that counsel's
performance was deficient or that Petitioner was prejudiced by counsel's allegedly
deficient performance.
Accordingly,IT IS ORDERED that:
1. Petitioner's motion for relief pursuant to 28 U.S.C. § 2255 is denied.
2. The Government's motion to dismiss is granted.
Dated this day of August, 2022.
BY THE COURT:
Lawrence L. Piersol
United States District Judge
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