BLACK v. UNITED STATES (2025)

ORDER ON MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

Movant Pierre Fontain Black filed this pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. [ECF No. 1]. Black challenges the sentence imposed in his criminal case. United States v. Black, 4:21-cr-00103-SMR-HCA-2 (S.D. Iowa 2021) (“Crim. Case”).

I. BACKGROUND

A. Factual Background

In July 2021, Black was arrested for his involvement in a drug trafficking organization selling heroin and fentanyl in the Des Moines area. Crim. Case, ECF No. 927. Black's role was not insignificant; he directed others to acquire vehicles for his use and to distribute product. Id. at ¶ 69. Additionally, his residence served as a location to store and package narcotics destined for distribution. Id. In his plea agreement, Black admitted to voluntarily entering into an agreement with one or more people to distribute a heroin-fentanyl mixture. Black acknowledged that the agreement involved 40 grams or more of the mixture containing fentanyl, and that he participated on a daily basis. Id., ECF No. 617 ¶ 7. Specifically, Black admitted that he sold and packaged the mixture, facilitated transactions, and traveled to obtain the controlled substances for distribution. Id.

B. Procedural Background

Black was indicted by a grand jury on one count of conspiracy to distribute a controlled substance—specifically a detectable amount of heroin and 40 grams or more of a mixture containing a detectable amount of fentanyl—in violation of 21 U.S.C. § 841(a)(1), § 841(b)(1)(B), and § 841(b)(1)(C). Crim. Case, ECF No. 376. Black pled guilty to that charge pursuant to a plea agreement with the Government. Id., ECF Nos. 615, 617. The Court accepted Black's guilty plea and imposed a sentence of 192 months’ imprisonment. Id., ECF No. 1048. Black did not appeal his sentence.

Black filed this Motion to Vacate, Set Aside, or Correct Sentence. [ECF No. 1]. In the motion, he argues his trial counsel was ineffective for failing to (1) file a notice of appeal, (2) request an evidentiary hearing for disputed facts, (3) object to certain facts in the PSR relating to a premises enhancement, and (4) preserve the record for appeal. Id. At one point, Black sought to add new grounds to his Section 2255 Motion but later motioned to withdraw those added claims. Black's trial counsel, Attorney Patrick H. Payton, as well as the Government have provided affidavits and responses throughout these proceedings as directed by the Court. Black has not filed a reply.

II. DISCUSSION

A. Section 2255 Standard

A federal inmate may file a motion under 28 U.S.C. § 2255 for relief “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Section 2255 is intended to provide federal prisoners with “a remedy identical in scope to federal habeas corpus.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (quoting Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). Section 2255 does not provide a remedy for “all claimed errors in conviction and sentencing.” Id. (quoting United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979)). The errors redressed by Section 2255 are constitutional and jurisdictional errors or ones that are so fundamental that the result is a “complete miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); see also Sun Bear, 644 F.3d at 704 (describing the scope of relief available under Section 2255 as “severely limited”).

If “the files and records of the case conclusively show” that a petitioner is not entitled to relief, no evidentiary hearing is required. Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985); see also Franco v. United States, 762 F.3d 761, 763 (8th Cir. 2014) (finding that no hearing is required when a claim is “inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.”). A court must not accept a petitioner's allegations as true if “they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Walker v. United States, 810 F.3d 568, 580 (8th Cir. 2016).

B. Ineffective Assistance of Counsel

1) Legal Standard

Black brings claims asserting a violation of his right to counsel protected by the Sixth Amendment to the United States Constitution. The Sixth Amendment guarantees a defendant the effective assistance of counsel at “critical stages of a criminal proceeding.” Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (citation omitted). The standard for whether counsel was unconstitutionally ineffective was established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate ineffective assistance of counsel under the Strickland standard, a movant must show (1) counsel's performance was deficient, and (2) the deficiency was prejudicial. Id. at 687, 104 S.Ct. 2052. A court is not required to address both components of the Strickland standard if a movant makes an insufficient showing on one of the prongs. Id. at 697, 104 S.Ct. 2052.

To establish the deficiency prong, a movant must show that counsel's performance fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2052. For the prejudice showing, the defendant does not need to show that counsel's deficient conduct more likely than not altered the outcome of the case, but only must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 693, 104 S.Ct. 2052. The two-part Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58–59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

Specific to a claim that counsel failed to file an appeal when requested, courts have long held that such inaction is professionally unreasonable because “filing a notice of appeal is a purely ministerial task.” Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Therefore, “[a]n attorney's failure to file a notice of appeal upon the client's request constitutes ineffective assistance of counsel, and no specific showing of prejudice is required.” United States v. Sellner, 773 F.3d 927, 930 (8th Cir. 2014) (citation omitted). Such a scenario entitles the movant to relief with “no inquiry into prejudice or likely success on appeal being necessary.” Barger v. United States, 204 F.3d 1180, 1182 (8th Cir. 2000). This is the standard even if the movant waived their right to appeal in a plea agreement. Sellner, 773 F.3d at 930.

2) Analysis of Claims

a. Notice of Appeal

In his motion, Black asserts that his counsel failed to file a notice of appeal after sentencing despite his express instructions to do so. [ECF No. 1]. His sworn declaration states that immediately after sentencing, after the Court advised him of his fourteen-day appeal window, he “turned to Mr. Payton and told him [he] wanted to appeal the sentence.” Id. at 20, ¶ 10. According to Black, Payton responded that he would visit him at the county jail, but Black alleges this visit never occurred and that they had no further communication until well after August 2022. Id. ¶¶ 11, 13, 17, 18. Throughout this period, Black maintains he thought an appeal had been filed on his behalf. Id. ¶¶ 16, 18, 19.

Attorney Payton filed an affidavit directly contradicting Black's account. [ECF No. 7]. He attests that three days after sentencing, he went to the jail to speak with Black about the appeal procedure and potential outcomes. Id. The critical fact—undisputed by any reply from Black—is that following this consultation, Black decided not to appeal and memorialized this decision by signing a document explicitly stating: “I, Pierre Black acknowledge that on July 21, 2022 I received one copy of my Judgement dated July 18, 2022. I also state I do not plan to Appeal the stated decision.” [ECF No. 7-1]. Payton attached a copy of this document to his affidavit and further stated that Black made no subsequent contact during the appeal window. [ECF No. 7].

When factual disputes exist in Section 2255 proceedings, evidentiary hearings are required because courts may not make credibility determinations based solely on the affidavits. Sellner, 773 F.3d at 929. A court may deny a hearing if “(1) the petitioners allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Id. (cleaned up) (citation omitted). Specifically at issue here, a court may dismiss a claim without an evidentiary hearing “if the record affirmatively refutes the factual assertions upon which it is based.” Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (citation omitted).

Although the United States Court of Appeals for the Eighth Circuit has instructed that courts ordinarily may not resolve credibility disputes between a defendant and counsel based solely on competing affidavits without an evidentiary hearing, this case presents a crucial distinction. Sellner, 773 F.3d at 930. The record contains not merely conflicting statement, but documentary evidence that directly refutes Black's core factual assertions. The signed affidavit from Black dated July 21, 2022, conclusively establishes that contrary to his current claims, he met with counsel post-sentencing and expressly declined to pursue an appeal. This contemporaneous written evidence “affirmatively refutes the factual assertions upon which” his claim is based. Shaw, 24 F.3d at 1043.

This documentary evidence gravely undermines the credibility of Black's allegations. Supreme Court precedent is clear that a defendant who “explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently.” Roe, 528 U.S. at 477, 120 S.Ct. 1029. Black's own contemporaneous written statement that he did not intend to appeal, coupled with the absence of any evidence of subsequent instructions to the contrary, renders his current assertions facially incredible. See Sellner, 773 F.3d at 929. Accordingly, an evidentiary hearing is unwarranted on this claim. Id.

b. Presentence Investigation Report Objections

Black also asserts that his defense counsel was ineffective regarding various issues related to the presentence investigation report (“PSR”) and sentencing. Specifically, he contends that Payton should have requested an evidentiary hearing to dispute facts in the PSR regarding the use of his house as a premises for manufacturing or distributing controlled substances and that counsel failed to preserve the record for appeal. Black's claims fail for multiple reasons.

Black's primary argument is that the premises enhancement should not have applied to him because, in his view, the Government could not have established the facts necessary to prove it. He takes particular issue with the nature of the evidence presented at sentencing, arguing that the Government relied solely on attorney argument, hearsay evidence, and the PSR itself rather than presenting witnesses or documentary evidence at an evidentiary hearing. When asked at the hearing for evidence to support the enhancement, the Government rested on its sentencing memo and the unobjected portions of the PSR. Although counsel objected to the enhancement in the PSR and made argument at sentencing against its application, the Court expressly found that the uncontested facts in paragraphs 22, 27, 36, and 57 each independently, but especially in paragraph 57, established the adjustment.

Black's argument fundamentally misapprehends the legal framework governing sentencing proceedings. It is perfectly permissible for the Government to use the uncontested facts in the PSR to meet its burden for sentencing enhancements. United States v. Flores, 9 F.3d 54, 56 (8th Cir. 1993) (noting that the “Government's obligation to present evidence in support of a PSR's factual statements only arises for the facts the defendant disputes.”) (cleaned up) (citation omitted). Therefore, to put the Government to its burden for the enhancement, Black would have needed to specifically object to the underlying facts in the PSR on which the Government relied, and which the Court found dispositive. The record does not reflect that he did so.

In his Section 2255 Motion, Black identifies only one specific factual dispute—his contention that a Government witness did not, as alleged, pick up drugs at his residence. [ECF No. 1 at 8]. However, the record does not indicate that he asked counsel to raise this specific objection prior to sentencing. Even on Black's own account, counsel appears to have made a strategic decision to challenge the legal application of the premises enhancement rather than dispute the underlying facts in the PSR—a tactical choice that falls well within the range of reasonable professional judgment. See Loefer v. United States, 604 F.3d 1028, 1030 (8th Cir. 2010). Although “pro se pleadings are generally held to less stringent standards than formal attorney submissions ․ and are to be construed liberally,” pro se motions must still “ ‘allege sufficient facts to support the claims advanced.’ ”United States v. Izazaga-Pascacio, Criminal No. 14-00289 (4) (SRN/BRT), 2017 WL 4022401, at *3 (D. Minn. Sept. 12, 2017) (citations omitted). Black has not done so here. Moreover, the Court explained at sentencing that because any one of the activities cited by the Government was independently sufficient for the enhancement, any deficient performance on this ground would not have been prejudicial.

At bottom, Black argues that the Government could not have proven the facts for the premises enhancement because to do so would rely on hearsay and speculation. This misapprehends the nature of sentencing proceedings. Even if Black raised material objections to the facts in the PSR, the appropriate forum for resolution would have been the sentencing hearing itself, not a separate evidentiary proceeding. Fed. R. Crim. P. 32(i)(2). More importantly, the Federal Rules of Evidence, including hearsay restrictions, do not apply at sentencing proceedings. See Fed. R. Evid. 1101 (d)(3). Therefore, the Government's evidence establishing his home as a premises for enhancement purposes would have been admissible, a point that renders Black's evidentiary objections legally immaterial despite his protestations to the contrary.

As the Court explained at sentencing, the Eighth Circuit has taken a broad approach to the types of conduct that are covered by the premises enhancement. See United States v. Anwar, 880 F.3d 958, 971 (8th Cir. 2018) (holding that a cellphone store was considered a premise even though the defendant did not own the building because it was used to store and distribute controlled substances). The Circuit has similarly upheld application of the enhancement based primarily on informant testimony about the use of the space, even where physical evidence was minimal. See United States v. Valdez, No. 21-3727, 2023 WL 3772682, at *1 (8th Cir. June 2, 2023). The record more than established Black's use of his residence as a premise substantiating the enhancement.

The record further reflects that Black confirmed at sentencing that he had thoroughly reviewed the PSR with counsel and that his questions about the report had been adequately addressed. At that critical juncture, Black waived any objections to the factual content of the PSR. See Smith v. United States, 876 F.2d 655, 657 (8th Cir. 1989). The procedural framework of federal sentencing does not permit a defendant to acquiesce to the factual recitations in the PSR at sentencing only to later claim, after the Court has relied on those facts to support its guidelines calculation, that counsel was ineffective for failing to challenge them.

Finally, the record demonstrated that Payton did object to the application of the premises enhancement. This objection would have provided the foundation for an appeal challenging the enhancement's application to Black's conduct, had he elected to pursue appellate review. For all of these reasons, Black has failed to establish that Payton's performance was deficient and that any deficiency was prejudicial.

III. CONCLUSION

For the reasons discussed above, Black's Motion to Vacate, Set Aside, or Correct Sentence is DENIED. [ECF No. 1]. Black's Motion for Clarification is MOOT. [ECF No. 5]. His Motion to Withdraw Ground 3 is GRANTED. [ECF No. 6].

Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings in the United States Courts, 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) (citation omitted). Black has not made a substantial showing of the denial of a constitutional right on these claims. He may request issuance of a certificate of appealability by a judge with the Eighth Circuit. See Fed. R. App. P. 22(b).

IT IS SO ORDERED.

STEPHANIE M. ROSE, CHIEF JUDGE