FISHER v. UNITED STATES (2025)

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

Movant Leonard Fisher filed this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. [ECF No. 1]. He challenges his sentence imposed in United States v. Fisher, 3:22-cr-00055-SMR-SBJ-1 (S.D. Iowa) (“Crim. Case”). The Court takes judicial notice of the proceedings in that case.

I. BACKGROUND

A. Factual Background 1

Just before 5:15 A.M. on January 29, 2022, Davenport Police responded to multiple reports of gunshots at the Thunderguard Club. Crim. Case, PSR, ECF No. 155, ¶ 7. The club owner informed law enforcement that a physical altercation between a man and woman had occurred inside. Id. ¶¶ 8, 12. These individuals were identified as Tityana Woodland and Timothy Angel. Id. ¶ 12. During the altercation, Woodland displayed a handgun before she was removed from the club. Id. Woodland was accompanied by a man later identified as Fisher. Id. ¶¶ 12, 15.

Once outside, Woodland and Fisher began to walk away from the club. Id. ¶ 13. Video surveillance footage then shows Angel shooting at Woodland and Fisher, causing them to run down the street before appearing to crouch down near each other. Id. ¶¶ 12, 13. Fisher then walked into the yard of a nearby residence and returned gunfire while Woodland continued to flee. Id. After the shooting, Fisher walked back toward the street where he appeared to fall or bend over in front of a parked vehicle. Id. Law enforcement later found a handgun and a pool of blood at that location. Id.

Several days later, Woodland spoke with law enforcement after receiving Miranda warnings. Id. ¶ 15. She admitted to possessing the handgun, disclosed that she had been at the club with her friend “Lando,” and stated that the gun belonged to “Lando.” Id. She also said that she handed the gun to “Lando” at his request after he had been shot by Angel. Id. After additional investigation, law enforcement concluded that Fisher was “Lando.” Id.

After learning Fisher's identity, law enforcement discovered that Fisher was incarcerated at a residential reentry center (“RRC”) at the time of the shooting and that he was then serving a 100-month sentence for a prior felon in possession of a firearm conviction. Id. ¶ 18. He had been permitted to leave the RRC on furlough the weekend of the shooting but failed to return on time. Id. ¶ 19. After an arrest warrant was issued for Fisher, law enforcement observed a recent gunshot wound on his calf. Id. ¶ 22. DNA testing subsequently confirmed that the pool of blood found near the handgun belonged to Fisher. Id. ¶ 24.

B. Procedural Background

A federal grand jury returned an indictment charging Fisher with felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Crim. Case, Sealed Indictment, ECF No. 13.

Following a one-day trial in January 2023, a jury convicted Fisher of the felon in possession offense. Crim. Case, Jury Verdict, ECF No. 96. After trial, Fisher obtained new counsel. Crim. Case, Notice of Attorney Appearance, ECF No. 128. Fisher's new counsel filed several motions with the Court, including objections to the PSR. See, e.g., Crim. Case, ECF No. 136.

The Court sentenced Fisher on September 19, 2023, imposing a term of imprisonment of 120 months. Crim. Case, J., ECF No. 149. This sentence was imposed consecutively to the sentence Fisher was already serving for his prior felon in possession of a firearm offense. Id. Fisher appealed his conviction to the United States Court of Appeals for the Eighth Circuit, which affirmed the judgment on May 6, 2024. United States v. Fisher, No. 23-3152, 2024 WL 1989005 (8th Cir. May 6, 2024).

Fisher then filed this motion under 28 U.S.C. § 2255. His motion raises three overlapping grounds for relief, asserting that his trial counsel was ineffective by failing to: (1) investigate, develop, present, and advocate a legal justification defense regarding his possession of the firearm; (2) present evidence that Angel was attempting to murder Fisher, which he believes would have made legal justification a viable defense; and (3) develop facts showing that Angel was attempting to murder Fisher, which he argues establishes a justification defense. [ECF No. 1].

II. DISCUSSION

A. Section 2255 Standard

Section 2255 allows federal prisoners to challenge sentences that were “imposed in violation of the Constitution or laws of the United States,” that were imposed without proper jurisdiction, that exceed statutory maximums, or that are otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Although this provision offers “a remedy identical in scope to federal habeas corpus,” it was never intended as a vehicle to challenge “all claimed errors in conviction and sentencing.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (citations omitted). Rather, the errors cognizable under Section 2255 are limited to constitutional and jurisdictional defects, or errors of such fundamental magnitude that they result in a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346–47, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). The Eighth Circuit has characterized the scope of available relief under Section 2255 as “severely limited.” Sun Bear, 644 F.3d at 704.

The statutory text further constrains the availability of evidentiary hearings in these proceedings. 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) (citing 28 U.S.C. § 2255). This principle applies with particular force when a claim is “inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.” Franco v. United States, 762 F.3d 761, 763 (8th Cir. 2014) (citation omitted). Courts are not obligated to accept a petitioner's allegations as true if those claims 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) (citation omitted). This procedure preserves the remedial function of a Section 2255 motion while respecting the strong interest in finality in the criminal justice system.

B. Analysis

Fisher brings claims asserting a violation of his right to counsel protected by the Sixth Amendment to the United States Constitution. To prevail on a claim of ineffective assistance of counsel under Section 2255, a petitioner must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under this standard, Fisher must demonstrate both “that counsel's performance was deficient” and “that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052.

The first prong requires showing counsel's representation “fell below an objective standard of reasonableness” when measured against prevailing professional norms. Id. at 688, 104 S.Ct. 2052. Judicial review of counsel's performance is highly deferential. As the Supreme Court has emphasized, courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Accordingly, strategic choices made after thorough investigation are “virtually unchallengeable.” Id. at 690–91, 104 S.Ct. 2052.

The second prong requires demonstrating “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. A “reasonable probability” is one that undermines confidence in the outcome, but the petitioner need not show that counsel's deficient conduct more likely than not altered the result. Id. Even so, “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (citing Strickland, 466 U.S. at 693, 104 S.Ct. 2052).

A court may address the Strickland components in either order and need not analyze both if a petitioner makes an insufficient showing on one. Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ․ that course should be followed.”). The burden of establishing entitlement to relief rests entirely with the petitioner.

Fisher asserts multiple ineffective assistance of counsel claims related to his attorney's performance at trial. At its core, his argument is that trial counsel's failure to pursue and develop a legal justification defense rendered constitutionally deficient representation that prejudiced his case. The Court examines these allegations under the well-established Strickland standard, which requires Fisher to demonstrate both deficient performance and resulting prejudice. The record, as detailed below, demonstrates that Fisher received thorough, competent representation at trial.

1. Legal Justification Defense

Fisher asserts several variations of an argument that his counsel was ineffective for not pursuing a legal justification defense at trial. Instead, counsel proceeded on a theory that Fisher was not the individual who possessed the handgun and shot at Angel. As the Supreme Court emphasized in Strickland, judicial scrutiny of counsel's performance must be “highly deferential,” with courts required to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. The Eighth Circuit has also consistently emphasized that courts must give substantial deference to strategic decisions counsel makes after thoroughly investigating the relevant law and facts. Armstrong v. Kemna, 534 F.3d 857, 864 (8th Cir. 2008) (citing Strickland, 466 U.S. at 690, 104 S.Ct. 2052).

Fisher's claims of ineffective assistance fail at the outset because the Eighth Circuit has not recognized justification as a defense to felon in possession offenses. United States v. Hoxworth, 11 F.4th 693, 694 (8th Cir. 2021) (noting the circuit has “yet to decide” the question but declining to resolve it); United States v. Dinkins, 688 F. App'x 408, 409 (8th Cir. 2017) (per curiam). Counsel's strategic decision to not raise the defense thus cannot not be considered deficient and counsel's performance did not “fall below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Indeed, counsel's decision here was well within acceptable bounds under the well-established principle that “[f]ailure to raise arguments that require the resolution of unsettled legal questions generally does not render a lawyer's services ‘outside the wide range of professionally competent assistance’ sufficient to satisfy the Sixth Amendment.” Sorensen v. United States, 138 F.4th 1096, 1099 (8th Cir. 2025) (citation omitted); see also Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005) (noting that competent performance does not require counsel to present “novel” arguments).

Courts in this Circuit have consistently reached the same conclusion when confronting similar ineffective assistance of counsel arguments. See Johnson v. United States, No. 4:19 CV 2756 CDP, 2022 WL 2527823, at *4–5 (E.D. Mo. July 7, 2022) (rejecting a claim of ineffective assistance of counsel because the movant's alleged justification for possessing a firearm provided no defense to a felon in possession offense); United States v. Dotstry, Case No. 16-CR-346 (SRN/HB), 2021 WL 2379478, at *14 (D. Minn. June 10, 2021) (holding that counsel was not constitutionally deficient for failing to raise a justification defense because it “is not a recognized defense to a violation of 18 U.S.C. § 922(g) in the Eighth Circuit”).

Nonetheless, the Eighth Circuit has analyzed potential justification defenses to felon in possession offenses without deciding whether such a defense is actually available. United States v. Deberry, 137 F.4th 729, 733 (8th Cir. 2025). If the defense were available, the Eighth Circuit has indicated that Fisher would have been required to prove four elements:

(1) that defendant was under an unlawful and ‘present, imminent, and impending [threat] of such a nature as to induce a well-grounded apprehension of death or serious bodily injury,’ (2) that defendant had not ‘recklessly or negligently placed himself in a situation in which it was probable that he would be [forced to choose the criminal conduct],’ (3) that defendant had no ‘reasonable, legal alternative to violating the law, “a chance both to refuse to do the criminal act and also to avoid the threatened harm,” ’ and (4) ‘that a direct causal relationship may be reasonably anticipated between the [criminal] action and the avoidance of the [threatened] harm.’

United States v. Cooney, 571 F. App'x 505, 506–07 (8th Cir. 2014) (alterations in original) (quoting United States v. Poe, 442 F.3d 1101, 1103–04 (8th Cir. 2006)). Those circuits that have recognized a justification defense to felon in possession offenses construe it narrowly. United States v. Lomax, 87 F.3d 959, 961 (8th Cir. 1996).

Even assuming arguendo that counsel's performance was constitutionally deficient for failing to raise the defense, Fisher suffered no prejudice because the defense would have failed on the merits.

Specifically, Fisher could not have met his burden on the third element because he had reasonable alternatives to violating the law. Fisher could have continued to flee from Angel as Woodland safely did. Although Fisher was shot in the leg, he still managed to evade law enforcement immediately after the shooting. Additionally, the gun was in Woodland's possession when the altercation with Angel occurred. If this were a case of self-defense, Woodland could have maintained possession of the gun and returned fire to protect both Fisher and herself. Cf. United States v. Burnes, 666 F. Supp. 2d 968, 971 (D. Minn. 2009) (stating that one of the factors to consider regarding the third element of a legal justification defense is “whether the defendant could have turned to other entities for protection”). Fisher thus had other potentially effective, legal options readily available besides unlawfully possessing a gun and returning fire. Lomax, 87 F.3d at 962.

Fisher likewise could not have met his burden on the fourth element. If Fisher had raised a legal justification defense, the Government could have introduced evidence of Woodland's post-Miranda interview where she stated that the gun belonged to Fisher and that Fisher gave her the gun before entering the club. This would defeat any causal relationship between Fisher's criminal action of possessing the firearm and the threatened harm posed by Angel. As such, Fisher suffered no prejudice from counsel's strategic decision to not raise the justification defense because, even if available, it would have failed on the merits.

Finally, Fisher erroneously attempts to rely on the benefit of hindsight. He asks the Court to determine that his counsel was constitutionally deficient at his trial based on facts from Angel's sentencing that occurred after Fisher's trial. This disregards Strickland's clear command that a “court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.” 466 U.S. at 690, 104 S.Ct. 2052. Counsel cannot be expected to predict the future, and Fisher has thus failed to meet his burden to show that counsel's representation “fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052; see also Cooks v. United States, 461 F.2d 530, 532 (5th Cir. 1972) (“Clairvoyance is not a required attribute of effective representation.”).

To prevail on his claim, Fisher must identify particular issues that should have been raised and establish a reasonable probability that raising them would have produced a different outcome. See Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000). Counsel's pursuit of a defense that Fisher did not possess the handgun—rather than a legal justification defense that would have required a contradictory admission that Fisher possessed the gun—is the type of “virtually unchallengeable” strategic decision contemplated by Strickland. 466 U.S. at 690, 104 S.Ct. 2052. Having failed to make either showing, Fisher cannot demonstrate deficient performance or prejudice. Accordingly, his ineffective assistance claims provide no basis for relief.

III. CONCLUSION

For the foregoing reasons, the files and records of this case conclusively show that Fisher is not entitled to relief. Accordingly, his Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED. [ECF No. 1].

A certificate of appealability may issue only if the movant “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires 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) (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Fisher has not made such a showing. Accordingly, a certificate of appealability is DENIED. He may seek a certificate from a judge with the United States Court of Appeals for the Eighth Circuit.

IT IS SO ORDERED.

STEPHANIE M. ROSE, CHIEF JUDGE