JOAN N. ERICKSEN, District Judge.
This case is before the Court on Defendant Patricia Ann Brown's pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence; pro se Motion in the Alternative; pro se Motion for Leave to File Supplement; pro se Motion for Evidentiary Hearing; and Motion for Appointment of Counsel. For the reasons stated below, the Court denies Brown's motions.
A jury found Patricia Ann Brown guilty of murder in the second degree and assault with a dangerous weapon. The Court sentenced Brown to concurrent terms of imprisonment of 360 months for murder and 120 months for assault. Brown appealed, and the Eighth Circuit affirmed. United States v. Brown, 653 F.3d 656 (8th Cir. 2011). Brown filed a petition for a writ of certiorari, and, on February 27, 2012, the Supreme Court denied it. Brown v. United States, 132 S.Ct. 1649 (2012). In July 2012, Brown moved for the appointment of counsel to represent her in filing a § 2255 motion. The next month, the Court denied the motion as premature. In January 2013, Brown moved for a one-year extension of the deadline to file a § 2255 motion, and the Court denied that motion.
On February 15, 2013, Brown again moved for the appointment of counsel to represent her in filing a § 2255 motion. On February 26, 2013, Brown deposited her pro se § 2255 motion in the prison mailing system. See R. Governing Section 2255 Proceedings for the United States District Courts 3(d) ("A paper filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing."). The Government responded to Brown's § 2255 motion. On March 29, 2013, Brown filed a pro se Motion to File in the Alternative and a Motion for Leave to File Supplement. On May 3, 2013, Brown filed a pro se Motion for Evidentiary Hearing.
A prisoner whose "sentence was imposed in violation of the Constitution or laws of the United States" may under § 2255 "move the court which imposed the sentence to vacate, set aside, or correct the sentence." 28 U.S.C. § 2255(a). "A prisoner is entitled to an evidentiary hearing on a section 2255 motion unless the motion, files and records of the case conclusively show that the prisoner is not entitled to relief." Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). "Accordingly, a petition can be dismissed without a hearing if (1) the petitioner's 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.
A. Original § 2255 Motion
In her original § 2255 motion, Brown claims that her counsel had a conflict of interest, that her counsel was ineffective, and that her sentence is substantively unreasonable. The Court will address each issue in turn.
In § 2255 motion, a prisoner may raise an ineffective assistance of counsel claim. See Massaro v. United States, 538 U.S. 500, 504-06 (2003). When a court is analyzing such a claim, it "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Johnson v. United States, 278 F.3d 839, 842 (8th Cir. 2002) (quotation omitted). "To succeed on a claim of ineffective assistance of trial counsel, a defendant must prove 1) his attorney's performance was so deficient as to fall outside the range of reasonable professional assistance, and 2) he suffered such prejudice stemming from the deficient performance there is a reasonable probability the proceeding would have had a different result." Morelos v. United States, 709 F.3d 1246, 1249-50 (8th Cir. 2013). "Failure to establish either prong is fatal to a claim of ineffective assistance." Id. at 1250 (citing Strickland v. Washington, 466 U.S. 668, 697 (1984)).
Brown argues that one of her attorneys and the prosecutor set her up by offering her a plea bargain that was later withdrawn because it was contrary to law. It appears from the record that Brown's attorney and the prosecutor discussed a plea bargain-nothing was in writing- where the Government would recommend a 15-year sentence. Brown's attorney communicated this offer to Brown, and Brown decided to accept the offer. But when Brown called her attorney to accept the offer, her attorney told her that the prosecutor had revoked the plea offer. The plea offer was made before the prosecutor and Brown's attorney realized that the murder charge carried a 30-year mandatory minimum sentence. Brown asserts that her attorney is now working with the prosecutor to cover up an "illegal plea offer" and that such association is a "conflict of interest." (Dkt. 133 at 15.)
Generally ineffective assistance of counsel claims are analyzed under the Strickland deficient performance and prejudice framework. Winfield v. Roper, 460 F.3d 1026, 1039 (8th Cir. 2006). However, when a "defendant can show that an actual conflict of interest adversely affected his lawyer's performance, " courts presume prejudice pursuant to the rule enunciated in Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). Id. (quotation omitted). The Cuyler rule presuming prejudice has not been extended by the Supreme Court beyond cases in which an attorney has jointly represented more than one defendant, and the Eighth Circuit has declined to determine whether it should be applied to actual conflicts of interest that did not arise out of an attorney's joint representation of multiple defendants. Morelos, 709 F.3d at 1252. In conflicts cases not involving joint representation, the Eighth Circuit applies both the Cuyler and the Strickland standard. Id.
"Under Cuyler a defendant must prove the existence of an actual conflict of interest, " which is a "conflict of interest that adversely affects counsel's performance." Id. (quotation omitted).
To prove a conflict produced an adverse effect, a defendant must identify a plausible alternative defense strategy or tactic that defense counsel might have pursued, show that the alternative strategy was objectively reasonable under the facts of the case, and establish that the defense counsel's ...