Donnell v. United States, No. 12-3465 (8th Cir. 2014)
Annotate this CaseMovant, convicted of conspiring to distribute ecstacy, moved to vacate his 240-month sentence based on, inter alia, the ineffective assistance of appellate counsel. Movant argued that he is entitled to 28 U.S.C. 2255 relief where, applying King v. United States, he argued that his 2005 conviction for resisting arrest may not be counted as a career offender predicate offense because it was grouped with, and received the same sentence as, the non-predicate careless and imprudent driving offense and therefore did not receive a criminal history point under U.S.S.G. 4A1.2(a)(2). On the merits of the career offender issue, the court agreed with the Sixth Circuit's analysis of the interplay between the criminal history provisions of section 4A1.2(a)(2) as incorporated by section 4B1.2. The court concluded that it was bound by the court's prior decision in King even though a majority of the panel believed it should now be overruled to eliminate a conflict with the Sixth Circuit. In regards to Movant's claim of ineffective assistance of counsel, Movant failed to establish that appellate counsel was constitutionally ineffective in failing to submit a citation to King for the court's consideration or to request supplemental briefing when the court published its decision in King after Movant's direct appeal had been argued and submitted for decision. The court declined to rule that Strickland v. Washington requires an appellate attorney to read advance sheets and consider newly-decided cases in the weeks or months after a direct appeal is fully briefed, argued, and submitted for decision. Accordingly, the court affirmed the judgment of the district court and denied the motion to supplement the record. The court declined to consider new arguments raised in Movant's pro se reply brief.
Court Description: Prisoner case - Habeas. For the opinion in Donnell's direct appeal, see U.S. v. Donnell, 596 F.3d 913 (8th Cir. 2010). To warrant Section 2255 relief, Donnell must establish that appellate counsel was constitutionally ineffective for failing to submit a citation to King v. United States, 595 F.3d 844 (8th Cir. 2010) for the direct appeal panel's consideration or to request supplemental briefing when this court published its decision in King after Donnell's direct appeal had been argued and submitted for decision; the court declines to rule that Strickland requires an appellate attorney to read advance sheets and consider newly-decided cases in the weeks or months after a direct appeal is fully briefed, argued and submitted for a decision. Judge Bye, concurring in part and dissenting in part.
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