JOAN N. ERICKSEN, District Judge.
After a jury found Defendant Theodore Stevie Varner guilty of being a felon in possession of a firearm, the Court sentenced him to 235 months imprisonment. Mr. Varner appealed, and the Eighth Circuit affirmed. U.S. v. Varner, 678 F.3d 653 (8th Cir. 2012). Mr. Varner was represented throughout his trial and direct appeal by Reynaldo Aligada from the Office of the Federal Defender.
Following the Eighth Circuit's decision, Mr. Varner filed a pro se motion for a new trial based on newly discovered evidence, which the Court denied. ECF No. 91.
Mr. Varner has now filed a pro se motion to vacate or set aside his sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel by Mr. Aligada. ECF No. 92. The Government has responded in opposition to Mr. Varner's motion. ECF No. 97.
Because the record conclusively shows that Mr. Varner is not entitled to relief, the Court will deny his § 2255 motion without an evidentiary hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).
The Eighth Circuit's decision affirming Mr. Varner's conviction and sentence sets forth the pertinent details of the case:
On the morning of September 22, 2010, Officers Douglas Whittaker and Benjamin Lego of the Saint Paul police department responded to a 911 weapons call. The 911 caller described the suspect as a black male with braids, wearing blue jeans and a dark hooded sweatshirt. When the officers arrived at the apartment building, Officer Lego saw a green Ford Explorer leaving the parking lot with the passenger in the vehicle matching the description provided by the 911 caller.
Officer Lego ordered the driver to stop three times, but the driver did not comply and left the parking lot. Officer Lego radioed a request for assistance in stopping the vehicle, providing the description of the Explorer and its direction of travel. Officer Lego and Officer Whittaker then got back in their squad car to follow the vehicle. Another officer drove up to the apartment building as the Explorer was leaving and pursued the vehicle, but by the time he caught up, it had stopped and the passenger had fled.
Officer Carl Schwartz was also in the area and responded to a call to stop a black male in jeans and a hooded sweatshirt running west on a specific street. Officer Schwartz saw a person matching the description, who was later identified as Varner, cross the street in front of the police car and run south. As Officer Schwartz turned into an alley, he saw Varner climb over a fence and fall into the alley about 100 feet in front of him. Officers Whittaker and Lego also drove into the alley in time to see Varner fall over the fence. Officer Whittaker saw a black item fall off Varner's waistband as he landed in the alley.
Varner got up and kept running while Officer Schwartz got out of his squad car and gave chase. Officer Schwartz noticed a small black case on the ground as he ran by the location where Varner came over the fence. As Varner ran across a gravel driveway by a blue car, he fell again. Officer Schwartz did not see anything drop from Varner when he fell, but the officer saw a brown-handled semi-automatic handgun lying in the gravel as he ran by the car where Varner had fallen. Officer Schwartz continued to chase Varner for approximately another half-block, yelling at him to stop, before Varner finally complied. Officer Schwartz detained Varner until Officer Lego arrived to arrest Varner.
Officer Schwartz, Officer Whittaker, and another officer retraced the path Varner ran in order to recover any items Varner may have dropped and to take photos of the route. Near the blue car, the officers recovered the firearm Officer Schwartz had seen as he chased Varner. Approximately 12-14 inches away from the firearm the officers also found a crack pipe. As the officers continued to follow the route, they found a black cell phone case where Varner had jumped over the fence. The case contained a credit card with Varner's name on it. The officers also recovered a green lighter and two black shoes.
A grand jury charged Varner with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At the two-day jury trial, four officers involved with apprehending Varner testified. Two analysts who tested the firearm for fingerprints and DNA evidence also testified that the tests were negative. The person who owned the house and the blue car next to where the police recovered the firearm also testified that the gun was not his and that nobody in his household owned a firearm. Finally, a special agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives stated the weapon was manufactured in France and traveled in interstate and foreign commerce.
... The jury subsequently found Varner guilty.
At sentencing Varner argued for a downward departure due to extraordinary physical impairments under U.S.S.G. § 5H1.4. The Presentence Report (PSR) noted Varner suffered from serious back problems after being robbed by two assailants in February 2010. During the robbery, Varner was rammed into a door frame and kicked repeatedly in the back. Consequently, he was diagnosed with mobile spondylolisthesis. The PSR indicated Varner experiences significant pain when sitting and standing. He cannot stand or walk for more than seven or eight minutes without experiencing pain. The district court denied Mr. Varner's motion and imposed a sentence of 235 months (19 years and 7 months), the bottom of the advisory range.
Varner, 678 F.3d at 655-56.
On direct appeal, Mr. Varner through counsel argued that the evidence was insufficient to support the verdict, that the Court abused its discretion in admitting evidence of the crack pipe, and that the Court abused its discretion at sentencing by declining to depart downward on account of his injury. Id. at 656. The Eighth Circuit rejected each argument. Id. at 659.
I. Allegations of ineffective assistance of counsel.
In his § 2255 motion, Mr. Varner alleges that he received ineffective assistance of counsel from Mr. Aligada in a variety of different ways spanning his pre-trial proceedings, trial, sentencing, and direct appeal.
To be entitled to relief based on a violation of the Sixth Amendment right to effective assistance of counsel, the movant must satisfy a two-part test: "First, the movant must show that counsel's representation fell below an objective standard of reasonableness.' ... Second, the movant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Engelen, 68 F.3d at 241 (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Because this Strickland test is conjunctive, "[t]he court need not address both components if the movant makes an insufficient showing on one of the prongs." Engelen, 68 F.3d at 241.
Section 2255 in turn specifies that the movant is entitled to an evidentiary hearing on the claims presented in his motion to vacate or set aside his sentence "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief..." 28 U.S.C. § 2255(b). "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." Engelen, 68 F.3d at 241 (citations omitted). See also Watson v. U.S., 493 F.3d 960, 963 (8th Cir. 2007).
As explained below, all of Mr. Varner's numerous allegations of ineffective assistance of counsel fail on their face. None, therefore, warrant an evidentiary hearing.
A. Investigation of the facts and reports.
Mr. Varner alleges that Mr. Aligada provided ineffective assistance of counsel by "fail[ing] to investigate the facts of the case" and by "fail[ing] to investigate police, forensic and medical reports." Under these two headings, Mr. Varner faults Mr. Aligada for: (1) not calling the driver of the Ford Explorer and the 911 caller to testify at trial; (2) not presenting evidence of his back injury to the jury; (3) not presenting evidence to the jury that he was booked into jail after his arrest wearing both shoes; (4) not adequately cross-examining the testifying officers; and (5) not uncovering the substandard practices of the St. Paul crime lab.
These specific allegations flow from a more general complaint that Mr. Varner expresses about Mr. Aligada's defense strategy. In the proceedings before this Court and on direct appeal, Mr. Aligada argued that the Government's evidence was insufficient to prove beyond a reasonable doubt that Mr. Varner ever knowingly possessed the firearm that the officers recovered in the alley after his arrest, but did not contest that Mr. Varner was the individual whom the officers had chased through the alley. See, e.g., Transcript of Jury Trial at 66-77 (ECF No. 75) (Mr. Aligada's closing argument ending with question that "If the [officer] who chased Mr. Varner and was closes to him didn't know if ...