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United States v. McHenry

United States District Court, D. Minnesota

February 27, 2019

United States of America, Plaintiff,
v.
Dontre D'Sean McHenry, Defendant.

          ORDER

          David S. Doty, Judge

         This matter is before the court upon the motion by pro se defendant Dontre McHenry to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Based on a review of the file, record, and proceedings herein, and for the following reasons, the court denies the motion and denies a certificate of appealability.

         BACKGROUND

         The facts of this case have been set forth in the court's previous orders and will not be repeated here except as necessary. On March 12, 2014, the Minneapolis Police Department discovered an advertisement on a local website featuring photographs of a female escort who resembled a juvenile reported missing from her home. The Minneapolis Police Department called the phone number listed on the advertisement, and a female identifying herself as “Honey” answered and told Sergeant Sherral Schmidt to get a hotel room and call her back. After placing the call, Schmidt received information from T-Mobile that the phone listed on the advertisement was registered to Tony Brown and that the phone was located at a Motel 6 in Roseville, Minnnesota. Shortly thereafter, police raided the hotel and found McHenry with J.E., a 17-year old female, in room 114. McHenry was then taken into custody.

         On July 22, 2014, the government filed a Superseding Indictment, charging McHenry with four counts of sex trafficking in violation of 18 U.S.C. §§ 1591 and 1594(a). On October 17, 2014, McHenry pleaded guilty to count two of the Superseding Indictment, and the government agreed to dismiss the remaining counts. On May 20, 2015, the court denied McHenry's motion to withdraw his guilty plea.

         On January 26, 2016, the court sentenced McHenry to a 293-month imprisonment term, which was below his advisory guideline sentence range. On February 24, 2017, the Eighth Circuit Court of Appeals affirmed both the court's denial of McHenry's motion to withdraw his guilty plea and the court's sentence. United States v. McHenry, 849 F.3d 699 (8th Cir.), reh'g en banc denied (May 31, 2017). McHenry now moves to vacate, set aside, or correct his sentence on the grounds of ineffective assistance of counsel.

         DISCUSSION

         I. Standard

         Section 2255 provides a federal inmate with a limited opportunity to challenge the constitutionality, legality, or jurisdictional basis of an imposed sentence. This collateral relief is an extraordinary remedy, reserved for violations of constitutional rights that could not have been raised on direct appeal. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). When considering a § 2255 motion, a court may hold an evidentiary hearing. See 28 U.S.C. § 2255(b). A hearing is not required, however, when “(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.” Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (citation and internal quotation marks omitted). Here, no hearing is required because the stated grounds for relief are facially meritless.

         II. Ineffective Assistance of Counsel

         To prevail on a claim of ineffective assistance of counsel, McHenry must meet both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). First, McHenry must show that his counsel's performance was so deficient that it fell below the level of representation guaranteed by the Sixth Amendment. Id. at 687. Second, he must establish prejudice by showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.” Id. at 694.

         A. Relevant Conduct and Guideline Challenges

         McHenry first argues that his counsel was ineffective at the time of sentencing because he did not challenge a relevant-conduct enhancement based on the dismissed counts. Specifically, he argues that his counsel was ineffective because the acts underlying the dismissed counts did not occur during count two, the offense of conviction. Under the relevant-conduct guideline provision, a defendant's base offense level is determined on the basis of all acts “that occurred during the commission of the offense of conviction, in preparation of that offense, or in the course of attempting to avoid detention or responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1)(A).

         The Presentence Report (PSR), which the court adopted in full, stated that the conduct underlying count two “continued while ... defendant was also involved” with the conduct underlying count one. PSR ¶ 29. In other words, McHenry's conduct in count one occurred during the commission of count two and in the course of avoiding responsibility for that offense. Therefore, McHenry's acts under the dismissed count constitute relevant conduct under § ...


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