Nespor v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
1 2 2022
JEFFREY JOE NESPOR, 5;I9-CV-5072-CBK
Petitioner,
vs.
UNITED STATES OF AMERICA, MEMORANDUM AND ORDER
Respondent.
I. BACKGROUND
Petitioner Jeffrey Nespor ("petitioner") pleaded guilty to Conspiracy to Distribute
a Controlled Substance, in violation of21 U.S.C. §§ 846, 84I(a)(I),(b)(I)(A) in 2018, for
which he was sentenced to 240 months imprisonment and 10 years of supervised release
by United States District Court Judge Jeffrey Viken. S^ 5:I9-CR-50014-JLV-I.' In
2019 Mr. Nespor filed a timely motion, pro se, to vacate his conviction and sentence
pursuant to 28 U.S.C. § 2255. Doc. I. Petitioner sets forth two principle arguments, both
concerning ineffective assistance of trial counsel in violation of his Sixth Amendment
rights under the United States Constitution, as set forth in Strickland v. Washington,466
U.S. 668(1984), and its progeny. ^MEMORANDUM [5/c] OF Law in Support of 28
U.S.C. 2255 Motion to Correct,Vacate,Set Aside, Doc. 2.
First, Nespor argues that his trial counsel, Mr. Paul Eisenbraun, was
constitutionally defective for failing to file an appeal contesting his conviction and/or
sentence. Vexingly, though, in the correspondence provided to the Court by Eisenbraun,
there is no mention of Nespor ever requesting an appeal be filed in his suit. Second,
Nespor sets forth - in a single sentence void of substance - that trial counsel failed to
make "mitigating argument to issues that were [.y/c] incorrectly applied to [the Pre-
'References to docket entries in the underlying criminal matter will be referred to as "C.R. Doc."
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 1 of 11 PageID #: <pageID>

Sentence Investigation Report,("PSR")] that were erroneous in nature and utilized in
enhaneing levels of sentence and opening door for [21 U.S.C. §] 851 enhancement that
adversely affected [s'/c] to sentence imposed and denied access to relief." MOTION,Doc.
1 at 7. Petitioner failed to brief this entirely in his memorandum of law. See Doc. 2.
The United States ("respondent") filed its Motion to Dismiss for failure to state a
claim pursuant to Federal Rules of Civil Procedure 12(b)(6) for failure to state a claim
and 12(h)(3) for improper subject-matter jurisdiction. Doc. 15. Petitioner did not file a
responsive brief to the United States' motion.
Because this Court does hold proper subject-matter jurisdiction over this matter,
petitioner's second claim should be dismissed for failure to state a claim. However,
beeause binding precedent requires this Court conduct an evidentiary hearing concerning
Mr. Nespor's first claim as to trial counsel's purported failure to file an appeal as
requested, the United States' motion should be denied in respect to petitioner's first claim
for relief.
II. DISCUSSION
A. Motion to Dismiss
The United States filed its motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) and Rule 12(h)(3). Rule 12(h)(3) mandates dismissals of suit when
federal courts do not hold proper subject matter jurisdiction. Federal courts are courts of
limited jurisdiction and must be wary of adjudicating claims beyond its purview. Nuevos
Destinos. LLC v. Peck. 999 F.3d 641,646 (8th Cir. 2021). "The requirement that
jurisdiction be established as a threshold matter springs from the nature and limits of the
judicial power of the United States and is inflexible and without exception." Godfrev v.
Pulitzer Pub. Co.. 161 F.3d 1137, 1141 (8th Cir. 1998)(internal quotations and
alterations omitted).
One such avenue for jurisdiction is via a "federal question." 28 U.S.C. § 1331.
Federal question jurisdiction exists where the plaintiff brings forth a "non-frivolous claim
of a federal right or remedy is sufficient to invoke federal question jurisdiction." Stanko
V. Qglala Sioux Tribe. 916 F.3d 694,698(8th Cir. 2019)(internal quotations and
2
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 2 of 11 PageID #: <pageID>

alterations omitted). Here, petitioner Nespor brings forward his timely motion pursuant
to 28 U.S.C. § 2255. In so doing, this Court is vested with subject matter jurisdiction
over the matter. Accordingly, the proper standard of review is pursuant to Rule 12(b)(6)
for failure to state a claim.
The government's motion to dismiss for failure to state a claim is applicable to
§ 2255 habeas proceedings so long as its procedural commands do not conflict with
habeas statutes or the Rules Governing Section 2255 Cases in the United States District
Courts. Because it is consistent, the ordinary standard of review for motions under
12(b)(6) is applicable. See Wolfe v. United States. 2021 WL 5095953, at *5 (D.S.D.
Sept. 20, 2021)(explaining interplay between Rule 12(b)(6) and motions to vacate under
28 U.S.C. § 2255).
When reviewing a motion to dismiss under Rule 12(b)(6), the Court assumes that
all facts in the petitioner's motion to vacate are true and construes any reasonable
inferences from those facts in the light most favorable to the nonmoving party. Spagna v.
Phi Kappa Psi. Inc.. — F.4th —,2022 WL 1009465, at *1 (8th Cir. April 5, 2022). See
Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 550(2007); Ashcroft v. Iqbal. 556 U.S. 662,
678(2009). "In deciding a motion to dismiss, courts ordinarily do not consider matters
outside the pleadings." Gillick v. Elliott. 1 F.4th 608,610 n.2(8th Cir. 2021). However,
courts may consider materials "necessarily embraced by the pleadings, including exhibits
attached to the complaint and matters of public record." LeMav v. Mavs. 18 F.4th 283,
289(8th Cir. 2021)(internal quotations omitted). Here, this Court can and will consider
the docket in Nespor's underlying criminal case, which is "incorporated by reference or
integral to [his] claim." 688 F.3d 928,931 n.3 quoting check for newer. The complaint
"must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face." Faulk v. Citv of St. Louis. Missouri. — F.4th —,2022 WL
1020050, at *2(8th Cir. April 6, 2022)(quotins: Iqbal. 556 U.S. at 678). The factual
allegations must be enough to raise specificity "above the speculative level." Richardson
V. BNSF Rv. Co.. 2 F.4th 1063, 1068 (8th Cir. 2021)(internal quotations omitted).
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 3 of 11 PageID #: <pageID>

Nevertheless, courts "are not bound to accept as true a legal conclusion couched as
a factual allegation." Stoebner v. Opportuntiv Fin.. LLC. 909 F.3d 219, 225-26(8th Cir.
2018){quoting Iqbah 556 U.S. at 678). When assessing the merits of a complaint
challenged under Rule 12(b)(6), a court should "begin by identifying pleadings that,
because they are no more than conclusions, are not entitled to the assumptions of truth."
McDonough v. Anoka Cntv.. 799 F.3d 931, 945-46 (8th Cir. 2015)(auotin2 Iqbal. 556
U.S. at 679).
That said, pro se litigants must still present cognizable legal claims to this Court.
Although the Court must take as true any well-pleaded facts, the Court need not accept
"'threadbare recitations ofthe elements of a cause" anchored by no more than conclusory
statements Du Bois v. Bd. of Regents of Univ. of Minnesota. 987 F.3d 1199, 1205 (8th
Cir. 2021){quoting Iqbal, 556 U.S. at 678)."When we say that a pro se complaint should
be given liberal construction, we mean that if the essence of an allegation is discernible ..
. then the district court should construe the complaint in a way that permits the
layperson's claim to be considered within the proper legal framework." Solomon, 795
F.3d 777, 787 (8th Cir. 2015)(internal quotation marks omitted). But "the court need not
act as a clairvoyant, trying to read the tea leaves of a pro se motion to determine what the
movant actually seeks. A litigant, even a pro se one, bears some responsibility for
advocating for himself." In re Hevl,609 B.R. 194, 202(B.A.P. 8th Cir. 2019).
B. Standard of Review for Constitutional Ineffectiveness
Petitioner brings forth his motion pursuant to 28 U.S.C. § 2255, raising two claims
of ineffective assistance of counsel in violation of his Constitutional rights as proscribed
in the Sixth Amendment. To succeed, Mr. Nespor must establish that(1)trial counsel's
performance was so deficient as to fall below an objective standard of proficiency
expected of a reasonably competent attorney, and (2)that trial counsel's deficient
performance prejudiced the defendant. Dilang Pat v. United States, 983 f.3d 1045,
1047^8,(8th Cir. 2020). Commonly referred to as a "Strickland claim," because of the
United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668
(1984), Nespor cannot be successful unless he can satisfy both prongs i.e., that not only
4
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 4 of 11 PageID #: <pageID>

was Mr. Eisenbraun constitutionally deficient, but that it also prejudiced him in his ability
to file an appeal or make eertain mitigating arguments during sentencing. Collins v.
United States, 28 F.4th 903,906 (8th Cir. 2022). To have teeth, prejudice cannot simply
mean trial counsel was wrong; rather, Nespor "must demonstrate that there is a
reasonable probability that the outcome would have been different but for eounsel's
deficient performance." Theus v. United States. 611 F.3d 441,447(8th Cir. 2010){citing
Strickland. 466 U.S. at 694).
Petitioner faces a high bar, for "[jjudicial review of counsel's effectiveness is
'highly deferential.'" Johnson v. United States. 278 F.3d 839, 842(8th Cir. 2002)
{quoting Strickland. 466 U.S. at 689). The respondent is armed with a "strong
presumption that [trial] counsel's performanee was reasonable." Thomas v. United
States, 737 F.3d 1202, 1207(8th Cir. 2013). This Court will not conduet arm-chair
quarterbacking of Nespor's earlier proceedings; a Strickland claim is not a vehicle to
simply conduet "second-guessing [of] trial strategy." Johnson. 278 F.3d at 842(internal
quotation marks omitted). See also Deck v. Jennings. 978 F.3d 578, 583 (8th Cir. 2020)
("We evaluate ineffective assistance of counsel using a freeze frame"). The proper
analysis is for courts on collateral review to "make every effort 'to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel's ehallenged
conduct, and to evaluate the conduet from counsel's perspective at the time.'" Armstrong
V. Kemna. 534 F.3d 857, 863(8th Cir. 2008){puotins Bell v. Cone. 535 U.S. 685,698
(2002)).
Mr. Nespor's motion stems from two separate arguments requiring slightly
different standards of analysis, as further discussed below. First, the petitioner argues his
trial counsel was constitutionally ineffective in failing to file an appeal, which requires a
modifieation ofthe typical Strickland inquiry. Second, Nespor argues that Mr.
Eisenbraun was deficient for both failing to disclose sentencing-related information to
him in a timely manner; and for failing to make mitigating arguments to correct allegedly
erroneous information in the Probation Office's PSR. Both grounds for relief are
addressed in turn.
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 5 of 11 PageID #: <pageID>

C. Whether Counsel Failed to File Appeal Upon Petitioner's Direction
First, Mr. Nespor argues that trial counsel failed to file an appeal of his sentence,
as he directed. Mr. Eisenbraun has submitted an affidavit to this Court disputing this
assertion. Cite. Because binding precedent is clear that such disputes require an
evidentiary hearing, this Court cannot dispose of this matter before further development
of the factual record.
The United States Court of Appeals for the Eighth Circuit has held, in no uncertain
terms, that where a petitioner and trial counsel submit contradictory assertions of whether
counsel was directed to file an appeal and failed to do so, habeas courts cannot simply
dispose ofsuch matters on its face, even if counsel's affidavit may be persuasive. In
Witthar v. United States, the Court held that "[a]n attorney's failure to file a requested
appeal automatically satisfies the deficient-performance prong of Strickland because it is
professionally unreasonable." 793 f.3d 920, 922(8th Cir. 2015)(internal quotation
marks omitted). This inquiry, then, is more favorable to Nespor than the standard
Strickland analysis, because "[n]o showing of prejudice is required in this unique
circumstance." Id. See Dressen v. United States. 28 F.4th 924, 928 (8th Cir. 2022)("In
such a case, prejudice is presumed because the defendant has forfeited his right to an
appellate proceeding as a result of his counsel's error.")(internal quotation marks
omitted).
Here, the parties disagree on whether Nespor requested such an appeal from
Eisenbraun. Only if Nespor did in fact request an appeal to be filed can there be an
automatic finding of prejudice. United States v. Luke. 686 F.3d 600,606 (8th Cir. 2012).
If Nespor never asked for an appeal, then there was no constitutionally defective
performance by trial counsel. If petitioner did request an appeal, then Nespor has
satisfied his burden. In his briefing, Nespor writes that he did in fact request an appeal of
his conviction and/or sentence. Eisenbraun, in turn, has filed an affidavit explaining that
he "did not believe that Mr. Nespore ever instructed [him] to file an appeal." Affidavit
OF Paul Eisenbraun, Doc. 14 at 1. Mr. Eisenbraun also attached correspondence
between Eisenbraun and Nespor where petitioner never raised a request to file an appeal.
6
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 6 of 11 PageID #: <pageID>

When faced with "conflicting affidavits [or memoranda] about the existence ofsuch
instructions," evidentiary hearings are required to "assess which witness is more
credible." Dressen, 28 F.4th at 928. Trial counsel's assertions are "insufficient to support
a finding that [Nespor's] allegations cannot be accepted as true. United States v. Sellner.
773 F.3d 927, 930(8th Cir. 2014).
However, Nespor waived his rights to appeal "all defenses and his right to appeal
any non-jurisdictional issues" as a component of his plea agreement with the United
States. Plea Agreement, CR Doe. 43 at 8-9. Can there still be automatic prejudice if
whatever appeal Nespor anticipated in allegedly pursuing was waived? Yes. Collateral
review is not the venue to assess whether Nespor's appeal would ultimately be
meritorious. See Watson v. United States, 493 F.3d 960, 964 (8th Cir. 2007)("The
limited perspective of collateral review is not the appropriate vantage point from which to
assess whether [petitioner] might have any meritorious issues that can be raised on appeal
in spite ofhis waiver.)(emphasis added)(internal quotation marks omitted).
"Accordingly, if the evidence shows that a petitioner asked counsel to appeal and counsel
refused, the petitioner is entitled to relief, even if[he] has waived that appellate right."
Witthar, 793 F.3d at 923 (internal citations omitted).
In the correspondence provided by Mr. Eisenbraun, there is no mention by
petitioner for an appeal to be filed. ^Affidavit of Paul Eisenbraun, Doc. 14 at 11-
12. Eisenbraun did, though, make clear Nespor's rights to an appeal, the time to file an
appeal, explained that counsel would be appointed if he could not afford a lawyer, and
advised the lack of appealable issues in this matter. See id. at 3. The pleadings before
the Court tilt strongly in favor that Mr. Nespor never requested trial counsel to file an
appeal in the correspondence provided to the Court by Eisenbraun. But tilting in favor is
not enough when the Court is faced with contradictory briefing and affidavits. To resolve
the factual dispute among petitioner and Mr. Eisenbraun, an evidentiary hearing is
necessary in this matter to determine whether Nespor ever instructed trial counsel to file
an appeal, regardless of its ultimate merits. But this hearing need not tackle those claims
brought by Nespor that can readily be disposed of on the briefs.
7
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 7 of 11 PageID #: <pageID>

D. Whether Counsel Constitutionally Erred in Not Presenting Arguments
Concerning 21 U.S.C. § 851 Enhancement
In a single sentence on his initial motion to vacate, Nespor also faults trial counsel
for failing to make "mitigating argument to issues that were [5/c] incorrectly applied to
PSR that were erroneous in nature and utilized in enhancing levels of sentence and
opening door for 851 enhancement that adversely affected [^/c] to sentence imposed and
denied access to relief." Doc. 1 at 7. Petitioner failed to briefthis entirely in his
memorandum of law. See Doc. 2. Because there was no prejudice to the petitioner, this
claim must fall.
Mr. Eisenbraun rightly explains in his affidavit that Nespor received no
ehancements under his draft PSR. See C.R. Doc. 53. Rather, he instead was determined
by the Probation Office to warrant a two-point decrease in his Total Offense Level
pursuant to the "safety valve" pursuant to U.S.S.G. §5C1.2(b)(17). Id at 7. Only after
the United States' objection, C.R. Doc. 54, did the Probation Officer amend the PSR to
remove the safety valve reduction and incorporate a four-point enhancement for being an
organizer of the drug conspiracy for which he pled guilty. See C.R. Doc. 55 at 7;
U.S.S.G. §3Bl.l(a). As explained in the final PSR:
[Mr. Nespor] organized the trips to Colorado, the drug transactions with his
suppliers and sellers, repackaged the large-pounds of drugs to smaller
amounts to coordinate the sales to the buyers and street sellers. He also
shared a larger portion of the profits, controlled the supply line, and had
decision-making authority over the conspiracy. Additionally, as being
organizer and part of the conspiracy from the beginning he had vast
knowledge into the scope of the conspiracy.
C.R. Doc. 55 at 7. Faced with overwhelming indicia of the criminal enterprise that
petitioner helped orchestrate, neither Mr. Eisenbraun nor any other lawyer could have
successfully rebutted the four-point enhancement for Nespor's role in the conspiracy.
Additionally, if Nespor means to attack the procedure to apply the sentencing
enhancement found in 21 U.S.C. § 851, he likewise fails to show any prejudice. Pursuant
to its statutory commands, the United States filed an information identifying the
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 8 of 11 PageID #: <pageID>

petitioner's 1997 qualifying felony conviction^ for Distribution of a Schedule II
Controlled Substance before the United States District Court for the District of South
Dakota. S^ C.R. Doe. 27. See also United States v. Curiale. 390 F.3d 1075, 1076-77
(8th Cir. 2004)(explaining procedural requirements of § 851). Further, in his factual
basis statement, the petitioner acknowledged his previous qualifying felony conviction
for which he pleaded guilty before this Court. See C.R. Doe. 44. On July 27, 2018,
United States Magistrate Judge Daneta Wollman reviewed the factual basis statement
with the petitioner. C.R. Doc. 47. There, the Court found that Nespor competently
entered into a guilty plea related to the factual basis statement that explicitly
acknowledges the prior felony drug conviction. Id. Accordingly, Judge Wollman filed
her Report and Recommendation advising United States District Court Judge Jeffrey
Viken to accept Nespor's guilty plea. C.R. Doc. 49. In the Report and Recommendation,
Judge Wollman explained how the petitioner pleaded guilty to the conspiracy charge, that
he would not challenge the Information and its explanation of § 851's applicability and
found that Nespor was "fully competent and capable of entering an informed plea,[and]
that the defendant is aware of the nature ofthe charges and the consequences of the plea."
Id. at 2. Judge Viken accepted Judge Wollman's Report & Recommendation in full.
C.R. Doe. 50.
The petitioner "had reasonable notice ofthe Government's intent to rely on a
particular conviction and a meaningful opportunity to be heard." Curiale, 390 F.3d at
1076. There was nothing to be done challenging § 85rs enhancement applicability or
adherence to procedure in this matter. No reasonable mind can argue petitioner did not
have sufficient notice ofthe § 851 enhancement in this matter, or that it could be
challenged with any change in its applicability. Further, no substantive argument can
claim that Nespor was prejudiced for supposed sentencing information not provided to
him in a timely manner; he fails to explain even in the barest of assertions how he was
prejudiced or what information was withheld. Mr. Nespor fails to find even clerical
^ See United States v. Nespor. 4:96-CR-40116-LLP (D.S.D.).
9
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 9 of 11 PageID #: <pageID>

errors in the United States' proeess. But see Espinoza v. United States. 745 F.3d 943
945-46(8th Cir. 2014)(holding clerical mistakes on their own still do not take away §
851's applicability as long as defendant had proper notice). Without any difference in
outcome, there can be no prejudice. See Fast Horse v. Class. 87 F.3d 1026, 1028 (8th
Cir. 1996)("When 'it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice,[that] course should be followed.'"){quoting Strickland, 466
U.S. at 697). Accordingly, this ground for relief should be dismissed.
III. CONCLUSION
This Court is faced with "conflicting [memoranda] about the existence of
whether Petitioner Nespor requested trial counsel Eisenbraun to file an appeal in his
underlying criminal matter. Dressen v. United States. 28 F.4th 924, 928(8th Cir. 2022).
Accordingly, this Court must "assess which witness is more credible," which may only
be accomplished through an evidentiary hearing. Id. However, because Nespor's second
claim for relief fails concerning mitigating arguments because of no conceivable
prejudice, the United States' motion should be granted on petitioner's second ground for
relief.
IT IS HEREBY ORDERED that the United States' motion to dismiss. Doc. 15, is
granted in part and denied in part.
IT IS FURTHER ORDERED that the United States' motion to dismiss Jeffrey
Nespor's motion to vacate his conviction and/or sentence for failure of counsel to provide
mitigating arguments at sentencing. Doc 15, is granted.
IT IS FURTHER ORDERED that Jeffrey Nespor's motion to vacate his
conviction and/or sentence for failure of counsel to provide mitigating arguments at
sentencing. Doc. 1, is denied.
IT IS FURTHER ORDERED that the United States' motion to dismiss Jeffrey
Nespor's motion to vacate his conviction and/or sentence for failure oftrial counsel to
file an appeal. Doe. 15, is denied
10
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 10 of 11 PageID #: <pageID>

IT IS FURTHER ORDERED that Jeffrey Nespor's motion to vacate his
conviction and/or sentence for failure of trial counsel to file an appeal, Doc. I, requires an
evidentiary hearing to further develop the factual record.
IT IS FURTHER ORDERED that an evidentiary hearing be conducted by United
States Magistrate Judge Moreno to make factual determinations concerning whether
Jeffrey Nespor directed trial counsel Paul Eisenbraun to file an appeal in his underlying
criminal matter, 5:I8-CR-50014-JLV-I. The United States Magistrate Judge shall file a
Report and Recommendation with this Court providing his findings.
DATED this 5"^ day of May,2022
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
11
Case 5:19-cv-05072-CBK Document 20 Filed 05/12/22 Page 11 of 11 PageID #: <pageID>