KERRY BERNARD MORGAN JR v. UNITED STATES OF AMERICA (2024)

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

A jury convicted Petitioner Kerry Bernard Morgan, Jr., of conspiracy to distribute methamphetamine, heroin, and fentanyl resulting in death. He was sentenced to 300 months' imprisonment. He seeks post-conviction relief pursuant to 28 U.S.C. § 2255 on the basis of ineffective assistance of counsel at trial and sentencing. The Court DENIES IN PART the motion because Morgan's counsel was not ineffective at trial, nor could Morgan show prejudice anyway. The Court GRANTS IN PART the motion because counsel was ineffective at sentencing in failing to raise a directly-on-point provision of the United States Sentencing Guidelines that likely would have resulted in Morgan's federal court sentence being shorter and/or made to run concurrent to his state court sentence for the same conduct.

I. BACKGROUND.

A. Overview and Procedural Background.

In August 2020, a grand jury in the Southern District of Iowa returned a one-count Superseding Indictment charging Morgan, Amber Maxwell, and Jarad Postell with conspiracy to distribute controlled substances resulting in death and serious bodily injury. (Crim. Dkt.¹ ECF 81.) As to Morgan, the Superseding Indictment alleged he conspired to distribute 50 grams or more of methamphetamine and 500 grams or more of a mixture and substance containing detectable amounts of methamphetamine, a mixture and substance containing a detectable amount of heroin, and mixtures and substances containing detectable amounts of fentanyl purported to be heroin. (Id., p. 2.)

The charges against Morgan and his co-defendants arose out of an incident on September 10, 2019. That evening, Postell and Eric Stoltenberg met the victim, K.M., and her friend at a park near Davenport, Iowa. See United States v. Morgan, No. 21-3688, 2022 WL 17348115, at *1 (8th Cir. Dec. 1, 2022). This was the first time either had met K.M., who asked Postell for a ride to a drug rehabilitation facility from which K.M. and her friend had been recently involuntarily discharged. Id. Postell let K.M. drive his car to the facility, which accepted the friend back but refused to admit K.M. Id.

Thereafter, K.M. used methamphetamine with Postell and Stoltenberg. Id. K.M. also wanted to use heroin, so Postell arranged to purchase some from Maxwell. Id. Maxwell sold Postell 0.1 grams of a drug she had allegedly received from Morgan and believed to be heroin. Id. Postell gave the drug to K.M. around 2:00 a.m. on September 11. Id. K.M. snorted it and said it was “strong” before nodding off and eventually becoming unconscious. Id. The “heroin” was actually fentanyl. Id.

Approximately one hour later, Postell tried to revive K.M. by throwing a cold drink on her. Id. When this didn't work, Postell called Maxwell, who, in turn, asked Morgan for Narcan. Id. The three agreed to meet a gas station. Id. Upon arrival, Maxwell approached the passenger side of Postell's vehicle and saw that K.M. was not breathing and didn't appear to have a pulse. Id. Her lips were blue, her complexion was white, and she was cold. Id. Maxwell believed she was already dead. Id. Maxwell's friend agreed K.M. appeared to be dead but nevertheless administered Narcan. Id. K.M. did not respond. Id. Postell brought K.M. to the hospital around 3:30 a.m. and told staff he did not know who K.M. was or what drugs she had taken. Id. Hospital staff tried to revive her, but she was declared dead shortly after 4:00 a.m. Id.

Maxwell pled guilty to the conspiracy charge. Id. Morgan and Postell admitted to participating in a conspiracy to distribute controlled substances but went to trial on the question of whether the drugs they distributed caused K.M.'s death. Id. The jury found that the fentanyl indeed caused K.M.'s death and therefore returned guilty verdicts against both Morgan and Postell. Id. at *2. Morgan and Postell later appealed from the district court's denial of their motions for judgment of acquittal. Id. The Eighth Circuit affirmed, finding the evidence was sufficient to support the jury's conclusion that fentanyl sold by Morgan and distributed by Postell caused K.M.'s death. Id. Morgan did not petition for rehearing.

On March 1, 2024, Morgan filed a timely motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (2255 Dkt. ECF 1.) His motion alleges three grounds of ineffective assistance of counsel: (1) failure to object to the admission of K.M.'s autopsy report; (2) failure to investigate the law and facts of the case or contact witnesses suggested by Morgan; and (3) failure to argue for the application of USSG § 5G1.3 at sentencing. (Id.)

B. Relevant Trial Testimony and Use of Autopsy Report.

The day of K.M.'s death, Maxwell started cooperating with law enforcement by conducting a controlled buy of what was held out to be “heroin” from Morgan, who Maxwell said was her only drug supplier. (Crim. Dkt. ECF 194, pp. 68, 77.) Morgan was subsequently arrested. (Crim. Dkt. ECF 195, pp. 39–40.) Morgan admitted to selling methamphetamine and heroin during a post-arrest interview. (Id., pp. 40–41.) At trial, Morgan stipulated to the admission of the lab results of drugs seized from Postell's and Morgan's vehicles and Maxwell's person. (Id., pp. 66–68 (receipt of Govt. Ex. 33).) The lab results revealed the drugs to be a combination of fentanyl, methamphetamine, and heroin. (Id.)

Given the overwhelming evidence of Morgan's involvement in a drug conspiracy—including, e.g., Maxwell's testimony that Morgan was her only source of drugs, Morgan's post-arrest admissions that he dealt heroin as part of a conspiracy, and the lab results—the fighting issue at trial was whether the “heroin” Morgan provided to Maxwell was the cause of K.M.'s death. The Government tried to prove causation through a combination of direct and circumstantial evidence. In the circumstantial category, the Government called three witnesses to testify that K.M.'s condition was consistent with an opioid ² overdose, rather than a methamphetamine overdose. First, James Dugan, a recovered heroin addict, testified that methamphetamine “wakes you up, gives you a body rush,” and that he had never seen anyone overdose on methamphetamine. (Crim. Dkt. ECF 194, p. 201.) Second, and similarly, Lieutenant Doug Scott of the Bettendorf Police Department testified he had investigated “[q]uite a few” opioid overdoses, but no cases involving methamphetamine overdoses. (Crim. Dkt. ECF 195, p. 42.) Finally, emergency room physician Justin Johnson described how opioid and methamphetamine overdoses present differently. (Id., p. 60.) Patients suffering from an opioid overdose are usually “unresponsive, not breathing – or not breathing very well,” whereas patients suffering from a methamphetamine overdose are usually “highly agitated, like almost psychotic, fast heart rate, sweaty.” (Id., pp. 60–61.) None of his patients had ever died from a methamphetamine overdose. (Id., p. 61.)

For direct evidence, the Government called Donna Papsun, a forensic toxicologist, to offer her opinion on the circumstances of K.M.'s death. (Id., p. 69.) Papsun said she had reviewed K.M.'s autopsy report, which the court admitted under seal without objection from Morgan or Postell. (Id., pp. 73–74, 84–85.) The Court also admitted under seal Papsun's supplemental toxicology report without objection from Morgan or Postell. (Id., pp. 85–86.) The supplemental toxicology report listed the drugs found in K.M.'s system, including: methamphetamine and amphetamine (stimulants); diazepam, clonazepam, and 7-amino clonazepam (depressants from the benzodiazepine family); and fentanyl and acetyl fentanyl (depressants from the opioid family). (Id., pp. 92–93.) The report showed that K.M. did not have heroin in her system. (Id., p. 101.) It further showed a low quantity of diazepam, clonazepam, and 7-amino clonazepam (depressants from the benzodiazepine family) in K.M.'s system. (Id., p. 94.) Given these low quantities, Papsun's testimony focused on methamphetamine and fentanyl.

Papsun explained that the autopsy report did not show that K.M. had a heart attack, stroke, or any other common indicator of a methamphetamine overdose. (Id., p. 100.) Instead, the autopsy report stated that K.M. had a pulmonary and cerebral edema, which are “classic” signs of an opiate overdose. (Id., p. 107.) And, while K.M. had fentanyl in her system, she didn't have norfentanyl, fentanyl's metabolite—the implication being that K.M. died so quickly after ingesting fentanyl that her body didn't break it down. (Id., p. 104.) By contrast, K.M.'s body had begun breaking down the methamphetamine in her system, indicating that it had been present longer. (Id., pp. 107–08.) The autopsy report further showed that K.M. had acetyl fentanyl in her body, which is a chemically modified version of fentanyl that was illicitly prepared. (Id., pp. 104–05.) Acetyl fentanyl has the same suppressant effect as opioids from a pharmacy. (Id., p. 105.) In light of this evidence, Papsun opined that K.M.'s death was not caused by a methamphetamine overdose. (Id., p. 100.) While Papsun was not asked to give an expert opinion per se about whether fentanyl caused K.M.'s death, she said K.M.'s death was “consistent” with a fentanyl overdose. (Id., p. 109.)

Following Papsun's testimony, Morgan and Postell called Dr. William Cox, a forensic pathologist, as a defense witness. (Crim. Dkt. ECF 196, p. 3.) Dr. Cox said he reviewed the autopsy report and Papsun's supplemental toxicology report in preparing to testify, among other documents. (Id., pp. 12–15.) He said the autopsy report assisted him in forming his opinion as to cause of death (id., p. 15), which was that K.M. died of a methamphetamine overdose because her pupils were dilated and she did not respond to Narcan (id., pp. 29–30).

Both defendants moved for judgment of acquittal, arguing the evidence of causation was insufficient because the Government did not present a witness to testify that that fentanyl was the cause of K.M.'s death. (Crim. Dkt. ECF 217, p. 1.) The Court (Jarvey, C.J.) denied the motion. (See generally id.) He concluded the Government was not required to present expert witness testimony that fentanyl caused K.M.'s death because the circumstantial evidence was strong enough in and of itself to allow a reasonable juror to reach this conclusion. (Id., p. 6.) Specifically, the Government presented testimony regarding: (i) the difference between how methamphetamine affects a user compared to fentanyl; (ii) K.M.'s condition after she ingested the “heroin,” which was consistent with fentanyl overdose but not methamphetamine overdose; and (iii) flaws in the defense expert's conclusion as to cause of death, which did not sufficiently take into account the fact that pupils can become dilated if enough time has passed since death and that Narcan will not work if the patient is already dead. (Id., pp. 7–8.)

C. Sentencing Hearing.

The sentencing judge held a joint sentencing hearing for Morgan and Postell. (Crim. Dkt. ECF 254, p. 2.) The Final Presentence Investigation Report (“PSR”) concluded that Morgan had a total offense level of 38 and a criminal history category of VI. (Crim. Dkt. ECF 225, ¶ 112.) His Sentencing Guidelines range was 360 months to life imprisonment. (Id.) Morgan's counsel advocated for a sentence of 240 months, the statutory minimum. (Crim. Dkt. ECF 254, pp. 3–4.) Morgan's counsel did not, however, point out that Morgan was serving a twenty-five-year sentence on an Iowa state court conviction arising out of the same conduct as Morgan's federal case, nor did counsel mention the provision of the United States Sentencing Guidelines governing parallel prosecutions in state and federal court.³ Morgan's co-defendant, Postell, likewise faced a Sentencing Guidelines range of 360 months to life. (Id., p. 3.)

The sentencing judge heard several victim impact statements from K.M.'s family. (Id., pp. 10–23.) The Government sought a Guidelines sentence due to the “aggravating factors that take this well beyond just a straightforward drug deal where somebody died.” (Id., pp. 25–26.) The sentencing judge imposed a 300-month sentence for both Morgan and Postell, commenting that the conduct was “so obviously so serious. We just don't have death that much in federal court.” (Id., pp. 26, 28.) As to Morgan, the sentencing judge stated that he “knew his stuff was more than bad” and that most defendants indicted on the same charges plead guilty and receive the 240-month sentence, but “they don't have the aggravating factors and the criminal histories that we see here today.” (Id., p. 27.) The sentencing judge did not mention Morgan's state court sentence for the same conduct at issue in his federal case, nor did he expressly state whether the federal sentence should run concurrent or consecutive to the state court sentence. Morgan's sentences therefore ended up running consecutively by operation of 18 U.S.C. § 3584(a), which states that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.”

II. LEGAL STANDARDS.

“Under 28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief on the ground that his sentence was imposed in the absence of jurisdiction or in violation of the Constitution or laws of the United States, was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007). However, “Section 2255 relief is not available to correct errors which could have been raised at trial or on direct appeal, absent a showing of cause and prejudice ․ or a showing that the alleged errors were fundamental defects resulting in a complete miscarriage of justice.” Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam) (citing United States v. Frady, 456 U.S. 152, 167–68 (1982) and United States v. Smith, 843 F.2d 1148, 1139 (8th Cir. 1988) (per curiam)). Proving actual innocence is one way for a defendant to obtain post-conviction despite procedural default. See Dejan v. United States, 208 F.3d 682, 685–86 (8th Cir. 2000).

A showing of ineffective assistance of counsel also typically “satisfies both cause and prejudice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). The Sixth Amendment guarantees a criminal defendant's right to “effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984). “Generally, to be successful on a claim of ineffective assistance of counsel, a defendant must ‘show both deficient performance by counsel and prejudice to the defense caused by that performance.’ ” Thomas v. United States, 737 F.3d 1202, 1207 (8th Cir. 2013) (quoting Barger v. United States, 204 F.3d 1180, 1181 (8th Cir. 2000)). “Deficiency means that counsel's performance fell below an objective standard of reasonableness, and prejudice means that, but for counsel's errors, a reasonable probability exists that the result of the sentencing would have been different.” Deltoro-Aguilera v. United States, 625 F.3d 434, 437 (8th Cir. 2010). “The defendant bears the burden to overcome the strong presumption that counsel's performance was reasonable.” Thomas, 737 F.3d at 1207. “However, strategic choices made due to a lack of preparation or investigation are not protected by the same presumption.” Id. “An attorney is not incompetent in exercising reasonable professional judgment even when, in hindsight, the decision may have been a mistake.” Id. “But, an attorney must conduct more than a cursory investigation.” Id.

“Evidentiary hearings on 28 U.S.C. § 2255 motions are preferred, and the general rule is that a hearing is necessary prior to the motion's disposition if a factual dispute exists.” Id. at 1206. “The district court is not permitted to make a credibility determination on the affidavits alone; thus if the decision turns on credibility, the district court must conduct a hearing.” Id. “An evidentiary hearing may be denied, however, if the motion, files, and records of the case conclusively show that the movant is not entitled to relief.” Id.

III. LEGAL ANALYSIS.

When claims of ineffective assistance of counsel are raised, the Court ordinarily would direct the petitioner's attorney to file an affidavit explaining the basis for the attorney's strategy decisions. Here, however, Morgan's counsel, David Treimer, passed away in early 2023, and thus the Court must evaluate Morgan's claims without the benefit of his counsel's response. Courts have recognized that an evidentiary hearing “would do little good” in such circumstances. Thomas v. Thaler, 520 F. App'x 276, 283 (5th Cir. 2013). Instead, the Court must evaluate counsel's reasonableness under Strickland based on the available evidence. See Fink v. Lockhart, 823 F.2d 204, 206 (8th Cir. 1987) (evaluating ineffective assistance claim following counsel's death based on the record); Quinones v. Miller, No. 01CIV.10752(WHP)(AJP), 2003 WL 21276429, at *40 (S.D.N.Y. June 3, 2003) (“Since Morris' death precludes determination of his reasons for his actions (or inactions), this Court has no choice but to decide the issue based on the available evidence.”), report and recommendation adopted, No. 01 CIV.10752(WHP), 2005 WL 730171 (S.D.N.Y. Mar. 31, 2005), aff'd, 224 F. App'x 44 (2d Cir. 2007). “[A] defendant cannot demonstrate deficient performance simply by pointing to a record void of an obvious strategic reason for counsel's action or inaction. Strickland and its progeny have created a strong presumption of constitutionally acceptable performance that falls away only when the defendant demonstrates otherwise.” Anderson v. United States, 182 F.3d 921, 1999 WL 439410, at *3 (7th Cir. 1999) (unpublished table decision).

A. Morgan Is Not Entitled to Post-Conviction Relief Based on His Counsel's Failure to Object to the Admission of the Autopsy Report.

Morgan first argues his counsel was ineffective in failing to object to the admission of the autopsy report. (2255 Dkt. ECF 1, p. 4.) Since the medical examiner who authored the report did not testify at trial, Morgan asserts his Confrontation Clause rights were violated when the autopsy reported was admitted via the Government's forensic toxicology expert, Donna Papsun. (Id.) Morgan states he asked his appellate counsel (a different attorney) to raise the issue on appeal, but the attorney failed to do so, so his appellate counsel was similarly ineffective. (Id., p. 16.)

Morgan asserts he was prejudiced by the failure to require testimony from the medical examiner for three reasons. First, if the medical examiner had testified, she could have “brought forth” or “emphasized” her findings that K.M. died of a “mixed-drug intoxication,” not fentanyl, and explained the difference between fentanyl and acetyl fentanyl and how each may cause different symptoms during an overdose. (Id., p. 23.) Second, the examiner could have been questioned about the possibility that the methamphetamine K.M. ingested contained fentanyl. (Id.) Third, the medical examiner could have testified that K.M.'s blood did not contain heroin, which was relevant given that the lab results from Maxwell's controlled buy of “heroin” from Morgan the day following K.M.'s death revealed the drug to be a fentanyl/heroin mixture. (2255 Dkt. ECF 12, p. 2.) In other words, according to Morgan, the medical examiner's testimony could have raised questions about whether Morgan truly had been the source of the drugs that allegedly killed K.M.⁴

The Strickland standard requires a showing of both deficient performance and prejudice. However, “a court deciding an ineffective assistance claim [need not] address both components of the inquiry if the [movant] makes an insufficient showing on one.” Strickland, 466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ․ that course should be followed.” Id.; see also Apfel, 97 F.3d at 1076 (“[A court] need not address the reasonableness of the attorney's behavior if the movant cannot prove prejudice.”). Here, the two Strickland prongs dovetail in the sense that Morgan's counsel reasonably could have decided not to insist on testimony from the medical examiner because any such testimony would have undermined Morgan's defense. The Court therefore will discuss the deficiency and prejudice prongs together.

At the outset, it is well established that tactical decisions like whether to object to an exhibit that both sides intend to use is classic “trial strategy” that courts typically do not “second guess.” Thomas, 737 F.3d at 1207 (citations omitted); see also Mayfield v. United States, 955 F.3d 707, 711 (8th Cir. 2020) (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” (quoting Strickland, 466 U.S. at 690)). To that end, counsel's decision not to object to the autopsy report likely stemmed, at least in part, from the fact that Morgan himself wanted to rely on the report as proof that K.M. had dilated pupils and methamphetamine in her system at the time of death. Calling the medical examiner as a witness was not necessary to lay the groundwork for these aspects of the defense; instead, the autopsy report itself contained everything the defense needed. Conversely, calling the examiner would have raised the risk of the examiner explaining the dilated pupils or methamphetamine in a way that undermined the defense's theory of the case. It was objectively reasonable, in context, for counsel to have decided the risks of requiring testimony from the medical examiner outweighed the potential benefits, if any. See Guzman-Ortiz v. United States, 849 F.3d 708, 714 (8th Cir. 2017) (“The choice to focus on ‘some issues to the exclusion of others’ carries with it ‘a strong presumption that [counsel] did so for tactical reasons rather than through sheer neglect.’ ” (quoting Yarborough v. Gentry, 540 U.S. 1, 8 (2003))).

For similar reasons, Morgan has not made a sufficient showing of prejudice. To prove prejudice, he must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. For at least two reasons, the admission of the autopsy report without testimony from the medical examiner was not prejudicial. First, no one disputed that K.M. had multiple drugs in her system; indeed, the Government's toxicology expert, Papsun, conceded that diazepam and clonazepam made “some contribution” to her death. (ECF 195, p. 108.) Papsun also explained: (i) the difference between fentanyl and acetyl fentanyl and explained their suppressant effect; and (ii) that no heroin was found in K.M.'s system, which supported Morgan's theory that his mixture wasn't the cause of K.M.'s death. As calling the medical examiner would not have established anything Papsun did not already concede, it is not reasonably probable that the decision not to call the examiner impacted the jury's verdict.

Second, to the extent Morgan argues the medical examiner might have provided additional testimony beyond what the Government's expert admitted, such testimony would have been outside the scope of the examiner's expertise and/or duplicative of facts established in other ways. Morgan's own expert, for example, emphasized the presence of multiple drugs in K.M.'s system, ultimately opining that methamphetamine, not fentanyl, caused K.M.'s death. Further, Papsun covered the difference between fentanyl and acetyl fentanyl and explained the suppressant effect of both drugs. Papsun similarly explained that heroin wasn't found in K.M.'s system, which supported Morgan's theory that his mixture wasn't the cause of K.M.'s death. Finally, it is doubtful that Morgan's counsel would have been permitted to question the medical examiner about whether the methamphetamine K.M. ingested could have contained fentanyl, as this seems to be within the purview of a toxicologist, not a medical examiner. In these circumstances, the testimony Morgan sought from the examiner was either cumulative of other evidence or of doubtful admissibility under the Federal Rules of Evidence. It follows, again, that he cannot show a “reasonable probability” that “the result of the proceeding would have been different” if the examiner testified. Strickland, 466 U.S. at 694; see also Henderson v. Norris, 118 F.3d 1283, 1288 (8th Cir. 1997) (“Counsel's failure to proffer evidence that was both inadmissible and cumulative does not constitute ineffective assistance.”).

B. Morgan Is Not Entitled to Post-Conviction Relief Based on His Counsel's Alleged Failure to Investigate the Law and Facts More Carefully.

In Ground Two, Morgan alleges his counsel was ineffective in “failing to investigate the law and facts of [his] case, including to contact or call requested witnesses.” (2255 Dkt. ECF 1, p. 5.) Specifically, Morgan asserts his trial counsel was ineffective for failing to: (1) speak with detectives to determine if the methamphetamine K.M. ingested could have contained fentanyl; (2) test Maxwell, Postell, or Stoltenberg's blood/urine to see if they had fentanyl in their systems, which would indicate that K.M. could have received fentanyl from a different source; (3) interview the medical examiner to determine how the examiner reached the conclusions in the autopsy report; and (4) call an expert to testify about differences between fentanyl and acetyl fentanyl and compare the composition of drugs in K.M.'s system to the drugs Morgan sold. (Id., pp. 27–31.)

There are several problems with Morgan's argument, starting with the fact that Papsun explained the difference between fentanyl and acetyl fentanyl to the jury during her testimony. Morgan's counsel was clearly not ineffective for failing to call an expert to testify to the same thing again. Moreover, by the time Morgan's counsel was appointed, it would have been far too late to test the methamphetamine in K.M.'s system or the blood or urine of the other members of the conspiracy. Counsel therefore also could not have been deficient in failing to pursue those lines of investigation. Finally, to the extent Morgan is suggesting that his counsel needed to do more to figure out whether law enforcement officers might have tested the blood or urine of his co-conspirators at the time of K.M.'s death, it is important to remember that the Government would have been obligated under Brady v. Maryland to share the results of any such tests with the defense if they contained information exculpatory to the defense. The same is true of any phone evidence that might have shown Maxwell as having other sources of drugs. There is no reason to believe that counsel would have unearthed helpful information by asking the Government to do what it was already obligated to do.

The closest Morgan comes to a winning issue is his argument that the fentanyl that killed K.M. might have come from a different supplier. He points out, correctly, that the drugs he supplied to Maxwell in the controlled transaction after K.M.'s overdose contained heroin and fentanyl, but only fentanyl was found in K.M.'s system. The problem for Morgan's motion for post-conviction relief, however, is that his counsel made the “other source” argument to the jury. On cross examination, counsel asked several questions about whether Morgan was Maxwell's “only” source and if she had purchased “heroin” from him that day as opposed to the day before. (Crim. Dkt. ECF 194, pp. 77–78.) Later, during closing, counsel argued:

Well, what happened here is there's been a break in the chain of custody. In other words, what assurances do we have that Amber Maxwell delivered the same drugs to Jarad Postell as Morgan delivered to her? As we know, it's common to have multiple sources, and it could be -- because there's that little clip about Morgan's heroin has fentanyl in it. Well, it could be that Amber Maxwell knows the difference and wanted to keep the Morgan mixture and sell to Postell some other mixture that she may have had.

(Crim. Dkt. ECF 264, p. 35.) He went on:

Anyway, the drugs seized off of Mr. Morgan the night he was arrested contained a mixture of heroin, methamphetamine, and fentanyl, so if he had those drugs on him that night, which is – basically it was a day later. Maxwell gets them in the evening hours of the 10th, holds them until Postell comes around at 1 or 2:00, whatever it was, you know, and then later on in the morning, now Mr. Morgan gets searched and arrested. And so what he had on his person or in his car as I reconstruct this is methamphetamine, heroin, and fentanyl.

Now, the blood analysis -- if his product was consistent, there should have been some morphine[5] in the blood. I mean, if he's selling a combination drug here and it's supposed to be the same drug that ended up in the hands of [K.M.], well, then there should have been at least a little morphine (sic.) in that blood. So I question whether or not what Morgan sold is what [K.M.] ended up with. I don't know if the Government's proved that. And I think that's -- that should be a reasonable doubt for you.

(Id., pp. 35–36.) Because counsel made the argument Morgan says he should have made, Morgan has not shown a deficiency in counsel's performance, much less a “reasonable probability” of a different result without that deficiency. Strickland, 466 U.S. at 694; see also Ford v. United States, 917 F.3d 1015, 1023–24 (8th Cir. 2019) (counsel was not ineffective for failing to cross-examine victim about allegations made by her ex-husband and others because counsel impeached witness's credibility in other ways). It follows that Morgan is not entitled to relief on Ground Two.

C. Morgan Is Entitled to Post-Conviction Relief Because His Counsel Failed to Raise an On-Point Provision of the United States Sentencing Guidelines Addressing Overlapping Prosecutions in Federal and State Court for the Same Offense Conduct.

Morgan's final argument is that his counsel should have asked the sentencing judge to apply USSG § 5G1.3 at sentencing. (2255 Dkt. ECF 1, p. 33.) USSG § 5G1.3 directs a sentencing judge to adjust a defendant's sentence for any period of imprisonment that resulted from a separate conviction that was relevant conduct to the instant offense. Morgan argues that his state conviction for drug distribution offenses on September 11, 2019, was “relevant conduct” in the federal conspiracy case, and thus his sentence should have been reduced for the time he had already served on the state charge and made concurrent to the remaining time on that charge. (Id., pp. 34–35.) The Government does not appear to dispute that the state conviction was relevant conduct but nonetheless argues that Morgan cannot show prejudice because he received the same 300-month sentence as his co-defendant and the sentencing judge said the sentence was “based upon the death of K.M.” (2255 Dkt. ECF 8, pp. 16–17.)

To the extent the Government did not concede the issue, the Court has no difficulty concluding that Morgan's state court conviction was “relevant conduct.” The conviction arose out of the controlled transaction with Maxwell on September 11, 2019, that was part of the federal conspiracy as charged and proven. Indeed, the PSR did not assign criminal history points to the state court conviction and stated “see the Offense Conduct section (paragraph 21) of this report” in the narrative summary for that conviction. (Crim. Dkt. ECF 225, ¶ 51.) There is no explanation for the PSR's handling of the state conviction other than that it was relevant conduct. The PSR further stated that Morgan received a twenty-five-year sentence on the state court charges, with a tentative discharge date of November 12, 2038. (Id.) In these circumstances, Morgan is correct that USSG § 5G1.3 was relevant to his sentencing on the federal conspiracy charge. See, e.g., United States v. Winnick, 954 F.3d 1103, 1105–06 (8th Cir. 2020) (vacating and remanding for resentencing based on district court's failure to properly apply USSG § 5G1.3 to prior state court sentence for relevant conduct). The Court therefore must decide whether Morgan's counsel was ineffective in failing to raise USSG § 5G1.3 and, if so, whether this deficiency caused prejudice.

1. Morgan's Counsel Was Ineffective in Failing to Raise USSG § 5G1.3.

For two reasons, The Court concludes that Morgan's counsel was ineffective in failing to ask the sentencing judge to apply USSG § 5G1.3. First, the application of USSG § 5G1.3 to Morgan's situation was clear and obvious, yet counsel failed to raise it. In relevant part, USSG § 5G1.3(b) states:

[If] a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction under the [Guidelines section governing relevant conduct], the sentence for the instant offense shall be imposed as follows:

(1) the court shall adjust the sentence for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons; and

(2) the sentence for the instant offense shall be imposed to run concurrently to the remainder of the undischarged term of imprisonment.

Here, Morgan's state court conviction: (a) was for “another offense that is relevant conduct to the instant offense of conviction”; (b) involved a “period of imprisonment already served”; and (c) also involved a remaining “undischarged term of imprisonment.” The situation is therefore tailor-made for USSG § 5G1.3(b). See, e.g., United States v. McKenzie, 79 F.4th 924, 927 (8th Cir. 2023) (reversing and remanding based on district court's failure to correctly apply USSG § 5G1.3); Winnick, 954 F.3d at 1105–06 (same).

Second, although there are some situations where an attorney reasonably might decide not to raise a viable argument—e.g., if raising the argument might offend the judge or jury or cause the Government to withdraw some other concession—there is nothing in the record to suggest any strategic reason for Morgan's counsel not to raise USSG § 5G1.3. There was, for example, no plea agreement, nor does the record reflect any sort of back-and-forth negotiations between the Government and Defense on Sentencing Guidelines issues. Instead, in context, it seems clear that counsel simply missed the issue—a conclusion that is reinforced by the fact that he was in the process of retiring by the time of Morgan's sentencing hearing and no longer even had a Westlaw account. (Crim. Dkt. ECF 254, pp. 29–30.) In these circumstances, the Court must conclude that Morgan's counsel's performance did not satisfy the objective standard of reasonableness required by the Sixth Amendment.

Other courts have reached the same conclusion in similar circumstances. For example, in United States v. Carlsen, the Ninth Circuit held that counsel was ineffective in failing to raise USSG § 5G1.3(b) in a circumstance where it clearly applied. 441 F. App'x 531, 535 (9th Cir. 2011) (“The government concedes—as it must—that Carlsen[ ] has satisfied the first prong of the Strickland analysis because his attorney's failure to advocate for the application of [USSG § 5G1.3(b)] fell ‘outside the wide range of professionally competent assistance.’ ” (quoting Strickland, 466 U.S. at 690)). Similarly, in Cobb v. United States, Judge Ross held that defense counsel was ineffective in failing to object to the sentencing judge's erroneous application of USSG § 5G1.3(b) in the second of two federal prosecutions for the same relevant conduct. No. 04-CR-203 (ARR), 2019 WL 2607002, at *3 (E.D.N.Y. Jan. 11, 2019). Cobb explained that the attorney's error “demonstrates a lack of familiarity with the Guidelines sufficient to meet the first prong of Strickland.” Id. Finally, in Schmitt v. United States, defense counsel was held to be deficient in failing to ask for a downward departure under USSG § 5K2.23 (which cross-references USSG § 5G1.3) for time the defendant had already served on state convictions for relevant conduct. No. 315CV00005RLYDML, 2018 WL 10669774, at *3 (S.D. Ind. Feb. 26, 2018).

It bears repeating that this was not a situation where the application of USSG § 5G1.3(b) was a close call. To the contrary, section 5G1.3(b) exists for situations exactly like this one where a defendant is sentenced in state court for an offense that is later treated as relevant conduct in the federal case. Winnick, 954 F.3d at 1105–06 (same). There was “no legitimate strategic purpose” in these circumstances for Morgan's counsel not to have asked the sentencing judge to apply it. United States v. Deminguez-Rivera, 810 F. App'x 110, 113 (3d Cir. 2020) (granting motion for post-conviction relief based on counsel's failure to raise viable sentencing argument).

2. Counsel's Failure to Raise USSG § 5G1.3 Caused Prejudice.

The second issue is the one to which the Government focuses its attention: whether counsel's deficient performance resulted in prejudice to Morgan. The Government argues it did not because: (i) the sentencing judge mentioned K.M.'s death as the basis for the sentence; and (ii) Morgan received the same 300-month sentence as his co-defendant, Postell. (2255 Dkt. ECF 8, pp. 16–17.) For reasons explained below, the Court concludes that these arguments are more helpful to Morgan than the Government; indeed, they all but confirm that the sentencing judge would have modified his sentence under USSG § 5G1.3 had it been called to his attention.

As a threshold matter, it is true that the sentencing judge intended for Morgan and Postell to receive the same sentences. They were sentenced together in a joint proceeding in which they faced identical Sentencing Guidelines ranges following their convictions in a joint trial for being part of the same drug distribution conspiracy. (See, e.g., Crim. Dkt. ECF 224, ¶ 115; Crim. Dkt. ECF 225, ¶ 112.) At the sentencing hearing, the sentencing judge did not discuss anything about the individual circumstances of either man beyond noting “that each of them have terrible criminal histories” and “Mr. Morgan knew his stuff was more than bad, and Mr. Postell for whatever reason just did not do what he should have done.” (Crim. Dkt. ECF 254, p. 27.) Beyond these perfunctory individualized comments, the sentencing judge spoke only about the two men collectively, culminating with: “It is the judgment of the Court in the case of Jarad Postell and Kerry Morgan, Junior, that each is sentenced to the custody of the Bureau of Prisons for 300 months on Count 1 of the [I]ndictment.” (Id., p. 28.) The sentencing judge unquestionably wanted them to receive identical sentences.

But they didn't receive identical sentences. By the time of the federal sentencing hearing, Morgan was already serving the twenty-five-year state court sentence for the same relevant conduct as the federal offense, with a projected release date of October 2038. The (federal) sentencing judge did not say anything to indicate his awareness of this state-court sentence, much less specify whether he intended the federal sentence to run consecutive or concurrent to the state sentence. The Judgment is likewise silent on this issue. Morgan's sentences therefore ended up running consecutively by operation of 18 U.S.C. § 3584(a), which states that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” Meaning: Morgan ended up with a fifty-year sentence of imprisonment, split evenly between state and federal custody. Postell, by contrast, received only the twenty-five-year federal sentence because he was not prosecuted in state court for the same conduct.

Given that the sentencing judge did virtually nothing at the sentencing hearing to differentiate between Morgan and Postell, it is likely that he did not intend the former to be sentenced to fifty years but the latter only twenty-five. Instead, the Court concludes that there is at least a “reasonable probability” that the sentencing judge would have adjusted Morgan's sentence had USSG § 5B1.3 been raised to his attention. See Carlsen, 441 F. App'x at 535; Cobb, 2019 WL 2607002, at *3; Schmitt, 2018 WL 10669774, at *3; see also Dominguez-Rivera, 810 F. App'x at 114 (ordering resentencing where sentencing judge's comments at sentencing indicated the likelihood of a different sentence had the Guidelines been calculated correctly). It follows that Morgan has proven both cause and prejudice on his Strickland claim, and thus is entitled to post-conviction relief in the form of resentencing.

IV. CONCLUSION.

The Court DENIES Grounds One and Two of Morgan's motion to vacate, set aside, or correct sentence but GRANTS his motion as to Ground Three. (2255 Dkt. ECF 1.) The Court will resentence Morgan on January 23, 2025, at 12:45 p.m. in Courtroom 242 (Davenport) or as soon thereafter as Morgan's presence can be arranged. The United States Marshals Service is directed to work with the Bureau of Prisons to arrange for Morgan's presence at his resentencing hearing on January 23 and to notify the Court if this date and time are not feasible so that it can be rescheduled. The Clerk of Court is directed to appoint counsel to represent Morgan pursuant to the Criminal Justice Act.

IT IS SO ORDERED.

FOOTNOTES

1.   All references to “Crim. Dkt.” are to the electronic case filing (ECF) docket in Morgan's underlying criminal case, Case No. 3:20-cr-00014 (S.D. Iowa). All references to “2255 Dkt.” are to the ECF docket in this post-conviction review case, Case No. 4:24-cv-00086 (S.D. Iowa).

2.   The “opioid” umbrella includes drugs that slow a person's body down, like fentanyl and heroin. (Crim. Dkt. ECF 195, pp. 42, 76–77.) These drugs are the opposite of “uppers” like methamphetamine, which stimulate the central nervous system. (Id., p. 81.)

3.   Sometimes these issues are raised in sentencing briefs submitted prior to the sentencing hearing, but Morgan's counsel did not file a sentencing brief.

4.   The premise of Morgan's argument is accurate, as the autopsy report showed no heroin in K.M.'s system (Crim. Dkt. ECF 195, p. 101) but the lab report showed heroin in the drugs sold by Morgan to Maxwell the following day (Crim. Dkt. ECF 164, p. 1 (referring to Govt. Ex. 7); ECF 195, p. 67 (explaining lab results)).

5.   In context, it is clear that Treimer meant “heroin.”

STEPHEN H. LOCHER U.S. DISTRICT JUDGE