USA v. Collier et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
Anthony Donte Collier, 	)
)
Petitioner, 	) 	ORDER DENYING MOTION TO
) 	VACATE, SET ASIDE, OR
vs. 	) 	CORRECT SENTENCE
)
United States of America, 	) 	Case No. 3:20-cv-239
)
Respondent. 	)
___________________________________________________________________________
United States of America, 	)
)
Plaintiff, 	)
)
vs. 	)
)
Anthony Donte Collier, 	) 	Case No. 3:16-cr-194-1
)
Defendant. 	)
___________________________________________________________________________
Before the Court is Defendant Anthony Donte Collier’s motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 filed on December 21, 2020. 	Doc. No. 413. 	The
Government responded in opposition to the motion on April 12, 2021. Doc. No. 418. Collier filed
a reply on May 13, 2021 (Doc. No. 421) and a supplement to his motion on June 1, 2021 (Doc.
No. 423). For the reasons below, the motion is denied.
I. 	BACKGROUND
In 2015, Collier was on supervised release in Minnesota for a prior Minnesota state crime.
See Doc. No. 341, pp. 25-26. After several incidents, including absconding, Collier’s supervising
officials suspected he was engaging in the business of prostitution. Id. pp. 27, 41-44, 49-50. As a
result, the authorities began an exhaustive investigation into Collier’s activities, which ultimately
culminated in, among other things, obtaining and executing a November 16, 2015 search warrant
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(Doc. No. 418-3) on Collier’s cell phone and laptop computer. The search warrant was supported
by an affidavit by Detective Shawn Krebsbach (“Detective Krebsbach”), a detective in Clay
County, Minnesota. Id. Eventually, after further investigation, authorities tracked and connected
Collier with several women who were engaging in commercial sex acts.
As a result of the investigation, a federal grand jury indicted Collier. Doc. No. 1. In March
2017, a grand jury returned a seven-count second superseding indictment against Collier. 	Doc.
No. 142. 	The second superseding indictment charged Collier with the following: one count of
conspiracy to violate 18 U.S.C. §§ 1952(a)(3) and 2, interstate travel and foreign travel or
transportation in aid of racketeering enterprises in violation of 18 U.S.C. § 371; five counts of sex
trafficking and attempted sex trafficking in violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(1), and
1594(a); and, one count of attempted witness tampering in violation of 18 U.S.C. § 1512(b)(1).
Id.
From the outset of his case, and as particularly relevant to this motion, Collier’s
representation by attorney William Kirschner (“Kirschner”) presented unusual issues and
difficulties. By way of example, at his initial appearance on November 3, 2016, Collier requested
permission to proceed with “hybrid representation,” where Collier would proceed pro se with the
addition of Kirschner’s representation. Doc. No. 39. That request was denied, and Kirschner was
appointed as Collier’s attorney. 	Id. 	However, throughout the duration of the case, Collier
repeatedly filed motions to appear pro se (Doc. Nos. 98, 101), and then changed course, asking
that the Court reappoint Kirschner. Doc. No. 144.
This pattern continued through the eve of trial. On March 28, 2017, Collier again requested
to appear pro se with Kirschner acting as co-counsel. Doc. No. 167. The Court gave Collier the
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option to proceed to trial representing himself or accepting Kirschner’s representation. Doc. No.
167. Collier chose the latter. Id.
Trial began on April 4, 2017. On day three of the trial, Collier again moved to proceed pro
se, and the Court granted the motion. Doc. No. 274, pp. 483-501. Six days later, Collier again
reversed course and asked the Court to reappoint Kirschner to represent him for the remainder of
the trial. Doc. No. 280, pp. 1737-38.
After three weeks of trial, the jury convicted Collier on counts one through six –
conspiracy, interstate and foreign travel or transportation in aid of racketeering enterprises, sex
trafficking, and attempted sex trafficking – and acquitted Collier on count seven – witness
tampering. Doc. No. 208.
After trial, Collier moved for new counsel, and Kirschner moved to withdraw as counsel.
See Doc. No. 357. Noting the attorney-client relationship was irretrievably broke, the district court
appointed Collier new counsel for sentencing, attorney Kerry Rosenquist (“Rosenquist”). 	Id.
Collier initially proceeded to sentencing with Rosenquist, but then once again chose to proceed
pro se at sentencing without standby counsel. Doc. Nos. 258, 262, 318.
At sentencing, after factoring in enhancements, the Court and the presentence investigation
report (“PSIR”) arrived at a total offense level of 45. Doc. No. 306, ¶ 52. Accordingly, Collier’s
total offense level was a 43 – the highest offense level possible. 	Id. ¶ 55. 	Collier was also
designated in criminal history category VI – again, the highest criminal history category possible.
With an offense level of 43 and a criminal history category VI, the United States Sentencing
Guideline (“USSG”) range for Collier was life imprisonment. Id. ¶ 114. On December 21, 2017,
the Court sentenced Collier below the guideline range, sentencing him to 60 months’ imprisonment
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on count one and 40 years imprisonment on counts two through six, all counts to run concurrently.
Doc. No. 325.
After sentencing, Collier, with the assistance of a third attorney, attorney Chad McCabe
(“McCabe”), pursued a direct appeal. 	The Eighth Circuit Court of Appeals issued its judgment
and opinion affirming Collier’s sentence on August 1, 2019 (Doc. No. 379), and a mandate was
issued on October 2, 2019. Doc. No. 386. Collier timely filed the instant 28 U.S.C. § 2255 motion
on December 21, 2020. Doc. No. 413.
II. 	LEGAL STANDARD
A motion under 28 U.S.C. § 2255 affords relief “in several circumstances, including cases
shown to contain jurisdictional errors, constitutional errors, and errors of law.” Raymond v. United
States, 933 F.3d 988, 991 (8th Cir. 2019) (citing 28 U.S.C. § 2255(b)). 	“Habeas review is an
extraordinary remedy and will not be allowed to do service for an appeal.” 	Fletcher v. United
States, 858 F.3d 501, 505 (8th Cir. 2017) (quoting Jennings v. United States, 696 F.3d 759, 762
(8th Cir. 2012)). 	An evidentiary hearing is required unless the allegations in the motion are
inherently incredible, contradicted by the record, merely conclusory, or would not entitle the
petitioner to relief even if true. Roundtree v. United States, 751 F.3d 923, 926-27 (8th Cir. 2014).
The movant bears the burden to demonstrate an entitlement to relief. Golinveaux v. United States,
915 F.3d 564, 567 (8th Cir. 2019).
Collier bases his § 2255 motion on three claimed violations of his Sixth Amendment right
to effective assistance of counsel. To obtain relief on an ineffective assistance of counsel claim, a
petitioner must satisfy the two-prong test announced in Strickland v. Washington, 466 U.S. 668,
687 	(1984). 	For 	the 	first 	prong, 	a 	petitioner 	must 	establish 	constitutionally 	deficient
representation, meaning counsel’s performance fell below an objective standard of reasonableness.
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Meza-Lopez v. United States, 929 F.3d 1041, 1044 (8th Cir. 2019). “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 view the representation from
counsel’s perspective at the time of the alleged error to avoid the effects of hindsight and second-
guessing. 	Kemp v. Kelley, 924 F.3d 489, 500 (8th Cir. 2019). 	A petitioner must overcome 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 made after a
thorough investigation of the law and facts are virtually unchallengeable. 	United States v. Orr,
636 F.3d 944, 950 (8th Cir. 2011).
To satisfy the second prong, a petitioner must demonstrate that prejudice resulted from the
deficient representation. Strickland, 466 U.S. at 687. To do so, a petitioner must show “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Adejumo v. United 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). When evaluating the probability of a different result, courts view the totality of the evidence
to gauge the effect of the error. Williams v. United States, 452 F.3d 1009, 1013 (8th Cir. 2006).
Where a petitioner raises multiple ineffective assistance of counsel claims, each claim must
be examined independently rather than collectively. Hall v. Luebbers, 296 F.3d 685, 692-93 (8th
Cir. 2002) (citing Wainwright v. Lockhart, 80 F.3d 1226, 1233 (8th Cir. 1996)). Cumulative error
will not justify habeas relief. Middleton v. Roper, 455 F.3d 838, 851 (8th Cir. 2006).
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III. 	DISCUSSION
In his motion, Collier raises three ineffective assistance of counsel claims. First, Collier
argues that Kirschner had an actual conflict of interest in representing Collier. Second, he argues
that Kirschner was ineffective for failing to request a Franks hearing to dispute evidence presented
by Detective Krebsbach in the November 16, 2015 search warrant affidavit. Finally, Collier argues
McCabe was ineffective for failing to challenge the district court’s sentencing guideline
calculation on appeal. The Court addresses each claim below.
A. 	Conflict of Interest
For his first claim, Collier alleges that Kirschner had an actual conflict of interest in
representing him. 	According to Collier, Kirschner “withheld proffers,” which limited Collier’s
ability to cross examine witnesses while he acted pro se during trial. Collier also argues attorney
Kirschner had an actual conflict of interest due to a dispute over legal fees relating to prior
representation. The Government notes that Collier has failed to identify any conflict of interest.
The Court agrees with the Government.
As discussed above, in Strickland, the Supreme Court placed the burden on defendants to
establish a violation of a defendant’s Sixth Amendment right to effective assistance of counsel.
See Strickland, 466 U.S. at 688. 	Before Strickland, though, the United States Supreme Court
decided Cuyler v. Sullivan, 446 U.S. 335 (1980). In Cuyler, the Supreme Court held that prejudice
may be presumed if a defendant, who raised no objection at trial, can show “an actual conflict of
interest [that] adversely affected his lawyer’s performance.” 	Id. at 348. 	In other words, if a
defendant can show defense counsel “actively represented conflicting interests” and that conflict
“adversely affected his lawyer’s performance,” the defendant need not demonstrate prejudice in
order to obtain relief. Id. at 349-50.
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Critically though, Cuyler has been only been applied in joint representation cases, where
counsel jointly represents multiple parties. 	See Morelos v. United States, 709 F.3d 1246, 1252
(8th Cir. 2013). The Eighth Circuit Court of Appeals has not decided whether Cuyler applies to
all actual conflict of interest cases. Id.; see also United States v. Young, 315 F.3d 911, 914 n.5
(8th Cir. 2003). 	Because Cuyler traditionally only applies in situations of joint representation,
which was not the situation between Collier and Kirschner, the Court finds Cuyler of limited value
to Collier’s conflict of interest claim.
Under either standard, however, whether Strickland or Cuyler, Collier has not identified an
actual conflict of interest or that Kirschner’s performance fell below an objective level of
reasonableness. To the extent Collier argues an alleged dispute over legal fees created a conflict
of the interest, the law rejects his position. United States v. O’Neil, 118 F.3d 65, 71 (2d Cir. 1997)
(holding a dispute over legal fees, without more, does not give rise to an actual conflict of interest).
Additionally, there is nothing in the record to suggest Kirschner was representing conflicting
interests or engaged in joint representation, which is fatal to Collier’s conflict of interest claim.
To be sure, it is clear from the record that there was ample “conflict” between Collier and
Kirschner, as evidenced by Collier’s repeated back and forth motions to appear pro se, then have
Kirschner reappointed; however, Collier improperly conflates “conflict” with a showing of an
“actual conflict of interest,” as that term is legally defined. The Court finds nothing in the record
to support a showing of a conflict of interest or that Kirschner’s performance fell below an
objective level of reasonableness.
Moreover, and relatedly, Collier cannot establish any adverse effect or prejudice. Indeed,
even if Collier did demonstrate an actual conflict of interest, which he has not, Collier chose to
proceed pro se without Kirschner at several points throughout the case and at trial. To the extent
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Collier alleges a conflict of interest prevented Collier from effectively cross-examining witnesses,
Collier’s claim fails, because it does not show “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Adejumo, 908 F.3d at 361 (emphasis added).
Collier offers nothing more than vague, conclusory, and unsubstantiated allegations that
Kirschner had a conflict of interest, and as such, Collier fails to satisfy the Strickland standard.
Without more, the Court concludes an evidentiary hearing is unwarranted and denies Collier’s
conflict of interest ineffective assistance of counsel claim against Kirschner. 	See Thompson v.
United States, 5:16-cv-05035, 2018 WL 8733338, at *45 (D.S.D. Mar. 16, 2018) (“Vague and
conclusory allegations of ineffective assistance which are grounded upon an alleged conflict of
interest are insufficient to warrant an evidentiary hearing on a § 2255 motion.”).
B. 	Franks Hearing
For his second claim, Collier argues Kirschner was ineffective for failing to move for a
Franks hearing to challenge the November 16, 2015 search warrant affidavit from Detective
Krebsbach. 	According to Collier, the search warrant affidavit contained allegedly false
information and that the warrant to search his cell phone contained false information. 	The
Government responds that Kirschner “did not render deficient performance because there was no
evidence that would have warranted a Franks hearing.” Doc. No. 418, p. 23. The Court agrees.
“A defendant may obtain a Franks hearing if (1) he makes a ‘substantial preliminary
showing’ that the affiant intentionally or recklessly included a false statement in the warrant
affidavit, and (2) the false statement was ‘necessary to the finding of probable cause.’” 	United
States v. Shockley, 816 F.3d 1058, 1061 (8th Cir. 2016) (quoting United States v. Jacobs, 986 F.2d
1231, 1233-34 (8th Cir. 1993); Franks v. Delaware, 438 U.S. 154, 155-56 (1978)). 	“‘This
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substantiality requirement is not met lightly and requires a defendant to offer specific allegations
along with supporting affidavits or similarly reliable statements.’” United States v. Mayweather,
993 F.3d 1035, 1043 (8th Cir. 2021), reh’g denied (May 19, 2021) (quoting United States v.
Gonzalez, 781 F.3d 422, 430 (8th Cir. 2015)). “A mere allegation standing alone is not enough.
Allegations of negligence or innocent mistake are insufficient.” Id. (cleaned up).
Collier raises two primary arguments in support of this claim.1 First, Collier argues that
testimony at the suppression hearing revealed false statements in the search warrant affidavit. Doc.
No. 413-1, p. 18. Second, Collier argues that “the affidavit also purported that hotel staff suspected
prostitution.” Id. at p. 19. Collier’s claims are conclusively refuted by the record.
A careful review of the transcript from the motion to suppress evidence hearing and the
text of the search warrant affidavit refute Collier’s claims as to the search warrant affidavit.
Notably, there was no misrepresentation by Detective Krebsbach in the search warrant affidavit
that hotel staff suspected the hotel room at issue was being used for prostitution. See Doc. No.
418-3. Additionally, the testimony at the suppression hearing does not reveal false statements in
the search warrant affidavit. See Doc. No. 341. Contrary to Collier’s assertions, the transcript and
record confirm Detective Krebsbach’s affidavit is consistent with the statements from hotel staff.
Id.
Again, Collier has failed to provide any specific allegations to support why a Franks
hearing may have been warranted, and as a result, Kirschner could not have been deficient in
failing to request a Franks hearing. 	It cannot be ineffective assistance not to raise a meritless
1 Collier technically raises five arguments in support of his Franks hearing claim. He numbers his
arguments as 1, 2, 4, 5, and 6. Doc. No. 413-1, pp. 18-19. However, the second, fourth, and fifth
claims are irrelevant to the Franks hearing analysis, as they primarily challenge chain of custody
and the timing of the searches of Collier’s cell phone and laptop computer.
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argument. Larson v. United States, 905 F.2d 218, 219 (8th Cir. 1990); Rodriguez v. United States,
17 F.3d 225, 226 (8th Cir. 1994). Collier’s conclusory allegations with no supporting facts fall
short of establishing that Kirschner’s failure to request a Franks hearing “fell below an objective
standard of reasonableness.” Instead, the record reveals that probable cause supported the issuance
of the search warrant, there was no misrepresentation or false statement made on Detective
Krebsbach’s search warrant affidavit, and that Kirschner’s decision not to request a Franks hearing
was reasonable.
Accordingly, Collier has not shown deficient performance by Kirschner to support his
claim of ineffective assistance of counsel for failing to request a Franks hearing. Because Collier
has not shown that Kirschner’s performance was deficient regarding this issue, there is no need to
address the second Strickland prong of prejudice. United States v. Walker, 324 F.3d 1032, 1040
(8th Cir. 2003). 	Thus, Collier’s second claim for ineffective assistance of counsel against
Kirschner is denied.
C. 	Sentencing Guidelines Calculation
Finally, Collier argues his appellate counsel, attorney McCabe, was ineffective for failing
to object to or challenge the Court’s guideline calculation on direct appeal. Specifically, Collier
argues his total offense level should have been a 42, rather than a 43. To that end, in his reply
brief, Collier cites several alleged sentencing guideline calculation errors that he believes McCabe
should have raised on appeal. 	However, all the arguments are without merit, and ultimately,
Collier cannot demonstrate prejudice.
To prove an ineffective assistance of counsel claim as to appellate counsel, a defendant
must show “(1) his [appellate] attorney’s performance failed to confirm to the degree of skill, care,
and diligence of a reasonably competent attorney; and (2) he was prejudiced by the attorney’s poor
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performance.” 	Donnell v. United States, 765 F.3d 817, 821 (8th Cir. 2014). 	Prejudice in the
sentencing context requires a petitioner to demonstrate a reasonable probability that he “would
have received a shorter sentence if counsel had not been ineffective.” United States v. Parrott, 906
F.3d 717, 720 (8th Cir. 2018) (per curiam) (citing Winfield v. Roper, 460 F.3d 1026, 1033 (8th
Cir. 2006)).
First, Collier argues that the Court erred in applying USSG § 2G1.3(a)(1), and that the
Court should have applied USSG § 2G1.3(a)(2). 	USSG § 2G1.3(a)(1) applies a based offense
level of 34 “if the defendant was convicted under 18 U.S.C. § 1591(b)(1).” On the other hand,
USSG § 2G1.3(a)(2) applies a base offense level of 30 “if the defendant was convicted under 18
U.S.C. § 1591(b)(2).” Collier was convicted under 18 U.S.C. § 1591(b)(1). Doc. No. 208, p. 5.
Thus, without question, applying a base offense level of 34 pursuant to USSG § 2G1.3(a)(1) was
correct.
Second, Collier’s argument that the Court erred in applying a 2-level enhancement as to
count six for “vulnerable minor” fails. 	The enhancement was not applied as to a “vulnerable
minor” as Collier states it. 	Doc. No. 413-1, p. 31. 	Rather, the enhancement is for “vulnerable
victim.” 	USSG § 3A1.1(b)(1); Doc. No. 306, ¶ 45. 	As explained in the PSIR, “A two-point
enhancement applies because the defendant was aware that victim was a vulnerable victim.
Specifically that she was without a fixed address and was a drug user.” Doc. No. 306, ¶ 45.
Third, Collier argues the Court erred in applying a 2-level enhancement to counts 2, 3, and
4 for obstruction. 	At sentencing, the Court heard testimony and evidence related to Collier’s
obstructive activities after trial. 	Doc. Nos. 342, 343. 	The Court took particular care to note
Collier’s obstruction. See Doc. No. 343, pp. 107, 117. However, it appears the Court only made
specific findings of obstructive behavior related to two of Collier’s victims, and a district court’s
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findings on an obstruction enhancement must provide sufficient support with clarity. United States
v. Harmon, 944 F.3d 734, 739 (8th Cir. 2019); but cf. id. at 740 ((Stras, J. concurring in part and
dissenting in part) (“I would rely on the general principle that district courts need not provide
detailed findings as long as there is sufficient evidence in the record for meaningful appellate
review.”) (citation omitted)). Nevertheless, even assuming without deciding that Collier is correct
that the 2-level enhancement for obstruction on counts 2, 3, and 4 were erroneously applied,
because of how the offenses are grouped, Collier’s total offense level would remain at a 43, and
the sentencing guideline range would remain at life.
All told, even if the Court accepted Collier’s arguments on this claim as true, and accepted
Collier’s position that the total base offense level should have a been a 42, the guideline sentencing
range, with a criminal history category VI, would have been 360 months to life. 	Collier was
sentenced well within that guideline range. As a result, even when construing all benefit to Collier,
Collier cannot establish any prejudice because there is no reasonable probability that he would
have received a shorter sentence if McCabe would have successfully raised the sentencing
guideline arguments on appeal. See DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000)
(citing United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)) (“If the defendant cannot prove
prejudice, 	[a 	court] 	need 	not 	address 	whether 	counsel’s 	performance 	was 	deficient.”).
Accordingly, Collier’s final ineffective assistance of counsel claim as to McCabe is denied.
IV. 	CONCLUSION
The Court has reviewed the record, the parties’ filings, and the relevant legal authority.
For the reasons above, Collier’s motion to vacate, set aside, or correct sentence under 28 U.S.C. §
2255 (Doc. No. 413) is DENIED. 	The record decisively refutes all of Collier’s ineffective
assistance of counsel claims. As such, dismissal without an evidentiary hearing is warranted. See
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Calkins v. United States, 795 F.3d 896, 900 (8th Cir. 2015). This matter is hereby DISMISSED
WITH PREJUDICE and without an evidentiary hearing. The Court certifies that an appeal from
the denial of the 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, dismissal of the 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 Collier desires further review of
his motion, he may 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 5th day of October, 2021.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
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