MCKINNEY v. UNITED STATES (2024)

ORDER DISMISSING SECTION 2255 MOTION

Before the Court is James McKinney's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. ECF Nos. 1 (motion), 3 (supplement).¹ The Court has not ordered the Government to respond. For reasons that follow, McKinney's motion is DISMISSED.

I. BACKGROUND

McKinney is currently imprisoned at Pekin FCI and is expected to be released on May 30, 2025. See BOP Inmate Locator, https://www.bop.gov/inmateloc/ (last accessed November 8, 2024). McKinney is serving two consecutive sentences at Pekin FCI: (1) a ten-month revocation sentence imposed in United States v. McKinney, 3:17-cr-00047; and (2) a twelve-month sentence imposed in United States v. McKinney, 3:20-cr-00021.

A grand jury indicted McKinney with two counts of distribution of a controlled substance and one count of possession with intent to distribute a controlled substance on May 23, 2017, in 3:17-cr-00047. ECF No. 8 at 1–2 (17). On December 21, 2017, now retired Judge John Jarvey sentenced McKinney to concurrent terms of 50 months’ imprisonment and six years’ supervised release on all three counts. ECF No. 45 at 3–4 (17). McKinney was released from FCI Terre Haute to the Residential Reentry Center (RRC) in Davenport, Iowa, on June 26, 2019. PSR at ¶ 7 (20). While at the RRC, McKinney removed his GPS monitoring device and did not return. Id. ¶ 12. McKinney was placed in “escape status” at 7:45pm on January 6, 2020. Id. ¶ 14.

A grand jury indicted McKinney with a single count of escape on February 11, 2020, in 3:20-cr-00021. ECF No. 1 (20). McKinney was eventually apprehended, pled guilty to the escape charge, ECF No. 23 (20), and Judge Jarvey sentenced McKinney to 12 months’ imprisonment, “to be served consecutively to the undischarged term of imprisonment in Docket Number 3:17-CR-00047-001.” ECF No. 41 at 2 (20). Judge Jarvey also ordered McKinney to serve a one-year term of supervised release “concurrently with the undischarged term of supervised release in Docket Number 3:17-CR-00047-001.” Id. at 3.

Due to a BOP calculation error, McKinney served his undischarged term of imprisonment in 3:17-cr-00047 but was released from BOP custody without serving his 12-month sentence for escape. See ECF No. 65 at 2 (letter from BOP noting that McKinney's “12-month term of imprisonment for escape was unserved.”). McKinney was released from BOP custody to begin his concurrent terms of supervised release on September 30, 2022. ECF No. 50 at 1 (17). McKinney's supervised release in 3:20-cr-00021 was terminated on September 29, 2023, ECF No. 58 (20), but he continued to serve his six-year term of supervise release imposed in 3:17-cr-00047.

Probation filed a petition for warrant or summons for offender under supervision in 3:17-cr-00047 on October 17, 2023, alleging that McKinney committed a new law violation by possessing a controlled substance, associated with a person involved in criminal activity, and used a controlled substance. ECF No. 64 at 1–2 (17). See also ECF No. 74 at 1–2 (17) (amended petition). This Court revoked McKinney's supervised release and sentenced him to 10 months’ imprisonment and five years of supervised release on November 21, 2023. ECF No. 76 at 1–3 (17). McKinney is now serving a 22-month term of imprisonment to account for the 12-month sentence that he never served for his escape conviction. See ECF No. 65 at 2 (20).

II. DISCUSSION

Rule 4(b) of the Rules Governing Section 2255 Proceedings requires the Court to conduct an initial review of a § 2255 motion. Under this rule, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.” But “[i]f the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.”

McKinney now moves to vacate his original sentencing judgment and his revocation judgment in 3:17-cr-00047. See ECF No. 1 at 1; ECF No. 3 at 1. McKinney moves to vacate his original sentencing judgment because his Illinois cocaine convictions are no longer considered predicates under 21 U.S.C. § 851. See ECF No. 3 at 1 (citing United States v. Ruth, 966 F.3d 642 (7th Cir. 2020)). McKinney moves to vacate his revocation sentencing judgment because the state case forming the basis for his federal revocation was dismissed, his attorney failed to seek a continuance so the state case could be resolved, and his attorney failed to object to testimony from a law enforcement witness who testified inconsistently with his arrest report. See ECF No. 1 at 1–2.

McKinney's challenge to his original sentencing judgment is beyond § 2255’s statute of limitations. Section 2255’s one-year statute of limitations begins to run from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1) (emphasis added). The “conviction” “refers to the underlying case, rather than a judgment imposed as a result of a supervised release revocation.” United States v. Buffalohead, No. 8:06CR35, 2011 WL 1539930, at *1 (D. Neb. Apr. 22, 2011) (citing 1 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE, § 5.2b (5th ed. 2001)). Because Judge Jarvey entered the sentencing judgment on December 21, 2017, ECF No. 45 (17), and McKinney did not appeal, his conviction became final fourteen days after the sentencing judgment was entered. Barajas v. United States, No. 10-CV-4089-DEO, 2012 WL 13065618, at *4 (N.D. Iowa Feb. 7, 2012) (concluding that § 2255 movant's conviction became final “after the 14 day time period for filing a notice of appeal.”). That is, January 4, 2018. Thus, the time for filing a § 2255 motion to collaterally attack that judgment expired on January 4, 2019. This § 2255 motion, filed in 2024, see ECF Nos. 1, 3, was filed well beyond § 2255’s statute of limitations.

Assuming without deciding that McKinney can challenge his revocation judgment in a § 2255 motion, see, e.g., Jackson v. Fisher, No. CIV. 11-2670 JNE/JSM, 2011 WL 5593659, at *2 (D. Minn. Oct. 6, 2011), report and recommendation adopted sub nom., Jackson-Bey v. Fisher, No. CIV. 11-2670 JNE/JSM, 2011 WL 5598352 (D. Minn. Nov. 17, 2011), aff'd, No. 12-1212, 2012 WL 13228481 (8th Cir. Mar. 23, 2012) (collecting cases and concluding this), “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief” under Rule 4(b) of the Rules Governing Section 2255 Proceedings.

McKinney raises three arguments related to his revocation proceedings: (1) the revocation finding should be vacated because his related state case was dismissed; (2) counsel was ineffective for failing to seek a continuance to resolve his state case first; (3) and counsel was ineffective for failing to cross-examine the testifying officer about inconsistencies with his testimony and the arrest report. See ECF No. 1 at 1–2. These claims lack merit.

The amended revocation petition alleged that McKinney (1) committed a new law violation by possessing a controlled substance; (2) associated with a person engaged in criminal activity; (3) and used a controlled substance. ECF No. 74 at 1–2 (17). The first two violations arose from an October 10, 2023, traffic stop in which McKinney was arrested for possessing 24.1 grams of marijuana. Id. at 1. That arrest resulted in the State of Iowa filing a criminal case (SMCR433655), which was still pending as of the revocation hearing. See id. at 2. The third allegation arose from a failed urinalysis test six days after the traffic stop. See id.

McKinney points to the January 24, 2024, dismissal of SMCR433655 as “[n]ewly [d]iscovered evidence proving [his] actual innocence” of the new law violation alleged in the revocation petition. ECF No. 1 at 2. But dismissal of the state case does not prove McKinney was actually innocent of the new law violation alleged in the revocation petition. “In criminal cases, the State faces a demanding burden of proof.” State v. Garland, 992 N.W.2d 241 (Iowa Ct. App. 2023) (citing State v. Davis, 975 N.W.2d 1, 9 (Iowa 2022)). There, the State must prove “that every element of the crime has been established beyond a reasonable doubt.” Id. (citation and quotation omitted). But “[b]ecause a revocation hearing is not a criminal trial, ․ the government bears a lesser burden of proof.” United States v. Harrison, 809 F.3d 420, 423 (8th Cir. 2015) (citations omitted). There, the Government need only prove “by a preponderance of the evidence that the defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3).

Because the burden of proof differs from state criminal proceedings to federal supervised release proceedings, a state criminal conviction can be sufficient to establish that a defendant has violated his supervised release, see United States v. Goodon, 742 F.3d 373, 376 (8th Cir. 2014), but the absence of a state conviction does not establish that a defendant did not violate his supervised release. This is why a defendant's supervised release may be revoked based on acquitted conduct. See United States v. Brown, No. 21-3766, 2022 WL 2709431, at *1 (8th Cir. July 11, 2022) (per curiam) (citing United States v. Frederickson, 988 F.3d 76, 85-86 (1st Cir. 2021) (court may consider acquitted conduct in finding that defendant violated conditions of supervised release); United States v. Watts, 519 U.S. 148, 154-55, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam) (sentencing court may consider conduct of which a defendant has been acquitted; acquittal on criminal charges does not prove that defendant is innocent, it merely proves the existence of reasonable doubt as to his guilt); United States v. Perkins, 526 F.3d 1107, 1109 (8th Cir. 2008) (court may find that commission of crime violates condition of release without regard to whether defendant was charged with crime)). Moreover, given the nearly universally congested state dockets, state prosecutors frequently await federal sentencing or revocation hearings to determine whether it is worth continuing to pursue state charges for conduct that was considered by a federal sentencing judge. If a federal sentence is deemed sufficient to punish the criminal behavior at issue, the state often dismisses their charges to conserve limited resources. Thus, a state's dismissal of charges may not reflect a weak case, but rather a busy docket and other more egregious crimes committed by other individuals that need to be prioritized. Accordingly, this claim fails.

McKinney next claims that his attorney provided ineffective assistance of counsel because he “refus[ed] to request a continuance of the revocation proceeding until the outcome of the alleged [state] case[.]” ECF No. 1 at 2. To establish ineffective assistance of counsel, McKinney must show that “counsel's performance was in fact deficient” and that he was “prejudiced by the inadequate representation.” Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000). “If [the Court] answer[s] either question in the negative, [it] need not address the other part of the test.” Stephen v. Smith, 963 F.3d 795, 800 (8th Cir. 2020) (citing Fields, 201 F.3d at 1027).

Even assuming deficient performance, McKinney cannot show prejudice from counsel's failure to seek a continuance of McKinney's revocation hearing because, for reasons stated above, resolution of McKinney's state case was only relevant insofar as a conviction in that case would be sufficient to establish the supervised release violation. Dismissal or even acquittal would not assist him. Thus, McKinney cannot show prejudice. See, e.g., Flynn v. United States, No. 4:17-CV-02589-JAR, 2020 WL 5250496, at *2 (E.D. Mo. Sept. 3, 2020) (concluding that counsel was not ineffective for failing to seek continuance of federal revocation hearing to resolve state case where the Government had sufficient evidence to meet its burden independent of the outcome of the pending state case).

McKinney last claims that counsel was ineffective for “allowing the officer to make statements during his testimony that were inconsistent with the arresting report with[out] inquiring further about production of the body cam.” ECF No. 1 at 2. Because the Court—not defense counsel—allows testimony, the Court construes this allegation as a failure to cross-examine the officer. Even if counsel performed deficiently by failing to adequately cross-examine the officer, McKinney has failed to show that this deficient performance prejudiced him—“that is, a reasonable probability that the outcome of the [revocation hearing] would have been different.” Anderson v. Bowersox, 262 F.3d 839, 842 (8th Cir. 2001) (bracketed material substituted). McKinney does not state how the arrest report or bodycam would have undermined the officer's testimony. Without showing prejudice, McKinney's ineffective assistance of counsel claim fails.

III. CONCLUSION

McKinney's § 2255 motion, ECF Nos. 1, 3, is DISMISSED because it plainly appears that he is not entitled to relief.

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, the Court must issue or deny a Certificate of Appealability when it enters a final order adverse to the movant. District courts have the authority to issue certificates of appealability under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). A certificate of appealability may issue only if the defendant “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c) (2). A substantial showing is a showing “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (quotation marks and citations omitted). McKinney has not made a substantial showing of the denial of a constitutional right on his claims. McKinney may request issuance of a certificate of appealability by a judge with the United States Court of Appeals for the Eighth Circuit. See Fed. R. App. P. 22(b).

IT IS SO ORDERED that McKinney's motion under 28 U.S.C. § 2555, ECF No. 1, 3, is DISMISSED and that a certificate of appealability is DENIED.

FOOTNOTES

1.   Citations are to the record in McKinney's § 2255 proceedings in 4:24-cv-000182, except where followed by “(17),” which refers to proceedings in McKinney's 2017 Southern District of Iowa criminal case (United States v. McKinney, 3:17-cr-00047), or where followed by “(20),” which refers to McKinney's 2020 Southern District of Iowa criminal case (United States v. McKinney, 3:20-cr-00021).

STEPHANIE M. ROSE, Chief Judge