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United States v. Livingstone

United States District Court, D. Minnesota

October 10, 2014


Thomas M. Hollenhorst, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN for plaintiff.

Levi Akai Livingstone, United States Penitentiary-Atlanta, Atlanta, GA, pro se.


JOHN R. TUNHEIM, District Judge.

On April 14, 2011, the Court denied federal prisoner Levi Akai Livingstone's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Livingstone now brings his third motion pursuant to Federal Rule of Civil Procedure 60(b) seeking relief from that judgment on the basis that the Court erred in declining to hold an evidentiary hearing before deciding the ineffective assistance of counsel claim raised in his § 2255 petition. Because Livingstone's present Rule 60(b) motion raises arguments which are inextricably intertwined with the Court's determination of the merits of his § 2255 claim, it is a second or successive habeas petition for which Livingstone has not sought permission to file from the Eighth Circuit, and the Court will therefore deny the motion.


On May 4, 2007, a jury convicted Livingstone of distribution of methamphetamine and conspiracy to distribute methamphetamine. (Jury Verdict, May 4, 2007, Docket No. 77.) On September 29, 2008, the Court sentenced Livingstone to 216 months of imprisonment on each count, to be served concurrently. (Minute Entry, Sept. 29, 2008, Docket No. 87; Sentencing J. at 1-2, Oct. 8, 2008, Docket No. 89.)[1] The Eighth Circuit affirmed Livingstone's conviction, United States v. Livingstone, 576 F.3d 881 (8th Cir. 2009), and the United States Supreme Court denied his petition for a writ of certiorari on December 14, 2009, Livingstone v. United States, 130 S.Ct. 1032 (2009).


On May 24, 2010, Livingstone brought a pro se petition to vacate his sentence under 28 U.S.C. § 2255, arguing that his sentence was invalid because he received ineffective assistance of counsel "during the pretrial phase of his federal criminal prosecution." (Pro Se Mot. to Vacate at 1, May 24, 2010, Docket No. 118; see also Mem. in Supp. of Mot. to Vacate, May 24, 2010, Docket No. 119.) Specifically, Livingstone argued that his counsel - Larry Reed - was ineffective because he made "a woefully inaccurate assessment of his chances at prevailing if the case proceeded to trial, " and that "[u]ltimately, [Livingstone] made an uninformed decision to go to trial rather than pleading guilty in a timely manner and receiving a 3-level reduction for accepting responsibility." (Mem. in Supp. of Mot. to Vacate at 5-6.)

On April 14, 2011, the Court denied Livingstone's § 2255 petition. (Order, April 14, 2011, Docket No. 127.) The Court began by concluding that Livingstone had failed to demonstrate that Reed's conduct fell below an objective standard of reasonableness because the record showed that Reed, "concerned about Livingstone's decision to proceed to trial, ... had Livingstone sign a document indicating that his desire to proceed to trial was his own." ( Id. at 2 (citing Resp. to Mot. to Vacate, Ex. 1 (Aff. of Larry Reed) at 10, July 7, 2010, Docket No. 124).) The Court also noted that "[t]he only evidence Livingstone provides supporting his assertion that Reed's conduct was unreasonable is a self-serving affidavit which is insufficient to overcome the strong presumption of counsel's professional competence." ( Id. at 6.)

The Court went on to conclude that even if Reed's conduct in failing to accurately assess Livingstone's chances of prevailing at trial fell below an objective standard of reasonableness, Livingstone's claim for ineffective assistance of counsel failed because he had not demonstrated prejudice. ( Id. ) The Court explained that to establish prejudice, Livingstone was required to "show that but for his counsel's advice he would have accepted the plea." ( Id. (emphasis in original).) But the Court found that "[t]here is nothing in the record suggesting that Livingstone had an inclination to plead guilty to any of the charges against him in this case." ( Id. ) Specifically the Court noted that Livingstone had signed a document stating that he wished to go to trial, and that in an affidavit submitted to the Court, Reed asserted that Livingstone "believed that none of the witnesses would testify against him" and therefore decided to go to trial. ( Id. at 6-7.) As for Livingstone's own affidavit submitted in connection with his § 2255 petition, the Court concluded that "Livingstone's assertions that he would have accepted the government's plea offer but for trial counsel's erroneous advice is not supported, and largely contradicted, by the record, " and therefore determined that Livingstone had not demonstrated that he received ineffective assistance of counsel. ( Id. at 7.)

With respect to Livingstone's entitlement to an evidentiary hearing, the Court found "that an evidentiary hearing on this motion is unnecessary because the motion and the files and records of the case conclusively show that [Livingstone] is entitled to no relief.'" ( Id. at 1 n.1 (alteration in original) (quoting 28 U.S.C. § 2255(b).) The Court noted that "all of Livingstone's allegations either are (1) insufficient to entitle him to relief, even if accepted as true; or (2) contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" ( Id. (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).)

Livingstone appealed the Court's denial of his § 2255 petition and requested a certificate of appealability. (Pro Se Notice of Appeal, May 6, 2011, Docket No. 128.) The Eighth Circuit denied his application for a certificate of appealability and dismissed the appeal. (J. of USCA, June 2, 2011, Docket No. 130.)


On December 17, 2012, Livingstone brought a motion to reopen pursuant to Federal Rule of Civil Procedure 60(b)(5) and (6). (Pro Se Mot. to Reopen, Dec. 17, 2012, Docket No. 132.) In that motion, Livingstone sought reconsideration of his § 2255 petition in light of the Supreme Court's decisions in Lafler v. Cooper, 132 S.Ct. 1376 (2012) and Missouri v. Frye, 132 S.Ct. 1399 (2012) and argued that under the reasoning of these cases he received ...

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