UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION DONALD WHITAKER, ) ) Movant, ) vs. ) ) Case No. 4:23-cv-00477-SEP UNITED STATES, ) MEMORAN)D UM AND ORDER Respondent. ) This matter is before the Court on Movant Donald Whitaker’s Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255, Doc. [1]. The motion is fully briefed. For the reasons Is.e t fortBh abceklogwro, uthned m otion is denied. See United States v. Whitaker In January 2020, Whitaker was charged with one count of being a felon in possession of a �irearm in violation of 18 U.S.C. § 922(g)(1). , 4:19-cr-00261-SEP, Crim. Doc. [1]. Whitaker waived indictment and pled guilty pursuant to a written plea agreement. Crim. Docs. [55], [58]. In the plea agreement, Whitaker admitted that he knowingly violated § 922(g)(1). Doc. See id [58]. He also acknowledged the possibility that he could be subject to enhanced penalties under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). . at 4, 6. The agreement stated that “[t]he Defendant is pleading guilty with full knowledge of these possibilities, has discussed Id these possibilities with counsel and will not be able to withdraw the guilty plea if the Court determines the foregoing statute applies to Defendant’s sentence.” . During his change of plea hearing, Whitaker con�irmed under oath that he was satis�ied with his counsel’s representation, and he understood that, “[i]f [he] were to qualify under that law, [he] would be looking at a much higher sentence.” Crim. Doc. [65] at 4, 17-18. The presentence investigation report (PSR) calculated a total offense level of 30 and determined that some of Whitaker’s prior offenses quali�ied as predicate offenses for the purpose of 18 U.C.S. § 924(e). Crim. Doc. [63] ¶ 28. Whitaker objected to the PSR’s characterization of his prior felonies as predicate offenses for purposes of ACCA; the Government responded; and At sentencing, Whitaker again con�irmed that he was “fully satis�ied” with his counsel’s representation, and then he withdrew his objections to the PSR through his counsel. Crim. Doc. Id [132] at 8, 11. The Court speci�ically asked counsel if Whitaker had any remaining objections to the PSR, and counsel con�irmed that he did not. . at 11. The Court then adopted the PSR’s Id guideline calculation and heard the parties’ arguments regarding the 18 U.S.C. § 3553(a) factors. . at 14. Whitaker requested a sentence of 63 months, and after discussing the 3553(a) factors, Id see also the Court found that a sentence of 63 months was suf�icient but not greater than necessary to serve the purposes of sentencing. . at 16, 20, 28-29; Doc. [127] at 1. In April 2023, Whitaker �iled a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, challenging his sentence. Doc. [1]. He alleges that counsel provided ineffective IaIs.s istanLceeg aolf cSotaunndsealr bdy withdrawing his objections to the PSR. Doc. [2]. Jones v. Hendrix Section 2255 of Title 28 of the United States Code provides a “postconviction remedy for federal prisoners.” , 599 U.S. 465, 469 (2023). Section 2255(a) states: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. Engelen v. United A prisoner is entitled to an evidentiary hearing on a § 2255 motion unless the motion, �iles, and States records of the case conclusively show that the prisoner is not entitled to relief. , 68 F.3d 238, 240 (8th Cir. 1995). The Eighth Circuit has explained that a § 2255 motion “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 Id contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” III. . Discussion In Grounds 1 and 2, Whitaker argues that counsel provided ineffective assistance by withdrawing his objection to the PSR’s determination that some of his prior convictions qualify as predicate offenses under § 924(e). Doc. [2]. The Government counters that Whitaker’s counsel Claims of ineffective assistance of counsel require a movant to show “both that his Meza-Lopez v. United States attorney’s performance ‘fell below an objective standard of reasonableness’ and that he was Strickland v. Washington prejudiced as a result.” , 929 F.3d 1041, 1044 (8th Cir. 2019) (quoting , 466 U.S. 668, 687-88 (1984)). To show that counsel’s performance was de�icient, a movant must show “counsel made errors so serious that counsel was not functioning Anderson v. United States as the counsel guaranteed the defendant by the Sixth Amendment to the United States Constitution.” , 393 F.3d 749, 753 (8th Cir. 2005) (citation modi�ied). Because of the dif�iculties inherent in evaluating an attorney’s performance, the court must Toledo v. United States provide a “strong presumption that counsel’s conduct falls within the wide range of professionally Strickland reasonable assistance.” , 581 F.3d 678, 680 (8th Cir. 2009) (quoting , 466 U.S. at 689). To demonstrate prejudice, a movant must show a “reasonable Id probability that but for a counsel’s unprofessional errors, the result of the proceeding would have Meza-Lopez been different.” . “A reasonable probability is a probability suf�icient to undermine con�idence in the outcome or a substantial, not just conceivable, likelihood of a different result.” , 929 F.3d at 1044-45 (citation modi�ied). “In examining whether prejudice has resulted from Carter v. Hopkins counsel's de�icient performance, the ultimate focus is on whether counsel's de�icient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” , 9 2 F.3d 666, 669 (8th Cir. 1996) (citation modi�ied). To prevail on the performance prong, Whitaker must demonstrate that his counsel’s withdrawal of his objections fell below the wide range of professionally reasonable assistance. But Ruff v. Armontrout counsel “need not raise every single conceivable argument to defeat a claim of ineffective Toledo assistance of counsel.” , 77 F.3d 265, 268 (8th Cir. 1996). And “[i]t is not ineffective assistance of counsel to withdraw objections that have no support in the law.” , United States v. Rice 581 F.3d at 681.
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION DONALD WHITAKER, ) ) Movant, ) vs. ) ) Case No. 4:23-cv-00477-SEP UNITED STATES, ) MEMORAN)D UM AND ORDER Respondent. ) This matter is before the Court on Movant Donald Whitaker’s Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255, Doc. [1]. The motion is fully briefed. For the reasons Is.e t fortBh abceklogwro, uthned m otion is denied. See United States v. Whitaker In January 2020, Whitaker was charged with one count of being a felon in possession of a �irearm in violation of 18 U.S.C. § 922(g)(1). , 4:19-cr-00261-SEP, Crim. Doc. [1]. Whitaker waived indictment and pled guilty pursuant to a written plea agreement. Crim. Docs. [55], [58]. In the plea agreement, Whitaker admitted that he knowingly violated § 922(g)(1). Doc. See id [58]. He also acknowledged the possibility that he could be subject to enhanced penalties under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). . at 4, 6. The agreement stated that “[t]he Defendant is pleading guilty with full knowledge of these possibilities, has discussed Id these possibilities with counsel and will not be able to withdraw the guilty plea if the Court determines the foregoing statute applies to Defendant’s sentence.” . During his change of plea hearing, Whitaker con�irmed under oath that he was satis�ied with his counsel’s representation, and he understood that, “[i]f [he] were to qualify under that law, [he] would be looking at a much higher sentence.” Crim. Doc. [65] at 4, 17-18. The presentence investigation report (PSR) calculated a total offense level of 30 and determined that some of Whitaker’s prior offenses quali�ied as predicate offenses for the purpose of 18 U.C.S. § 924(e). Crim. Doc. [63] ¶ 28. Whitaker objected to the PSR’s characterization of his prior felonies as predicate offenses for purposes of ACCA; the Government responded; and At sentencing, Whitaker again con�irmed that he was “fully satis�ied” with his counsel’s representation, and then he withdrew his objections to the PSR through his counsel. Crim. Doc. Id [132] at 8, 11. The Court speci�ically asked counsel if Whitaker had any remaining objections to the PSR, and counsel con�irmed that he did not. . at 11. The Court then adopted the PSR’s Id guideline calculation and heard the parties’ arguments regarding the 18 U.S.C. § 3553(a) factors. . at 14. Whitaker requested a sentence of 63 months, and after discussing the 3553(a) factors, Id see also the Court found that a sentence of 63 months was suf�icient but not greater than necessary to serve the purposes of sentencing. . at 16, 20, 28-29; Doc. [127] at 1. In April 2023, Whitaker �iled a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, challenging his sentence. Doc. [1]. He alleges that counsel provided ineffective IaIs.s istanLceeg aolf cSotaunndsealr bdy withdrawing his objections to the PSR. Doc. [2]. Jones v. Hendrix Section 2255 of Title 28 of the United States Code provides a “postconviction remedy for federal prisoners.” , 599 U.S. 465, 469 (2023). Section 2255(a) states: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. Engelen v. United A prisoner is entitled to an evidentiary hearing on a § 2255 motion unless the motion, �iles, and States records of the case conclusively show that the prisoner is not entitled to relief. , 68 F.3d 238, 240 (8th Cir. 1995). The Eighth Circuit has explained that a § 2255 motion “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 Id contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” III. . Discussion In Grounds 1 and 2, Whitaker argues that counsel provided ineffective assistance by withdrawing his objection to the PSR’s determination that some of his prior convictions qualify as predicate offenses under § 924(e). Doc. [2]. The Government counters that Whitaker’s counsel Claims of ineffective assistance of counsel require a movant to show “both that his Meza-Lopez v. United States attorney’s performance ‘fell below an objective standard of reasonableness’ and that he was Strickland v. Washington prejudiced as a result.” , 929 F.3d 1041, 1044 (8th Cir. 2019) (quoting , 466 U.S. 668, 687-88 (1984)). To show that counsel’s performance was de�icient, a movant must show “counsel made errors so serious that counsel was not functioning Anderson v. United States as the counsel guaranteed the defendant by the Sixth Amendment to the United States Constitution.” , 393 F.3d 749, 753 (8th Cir. 2005) (citation modi�ied). Because of the dif�iculties inherent in evaluating an attorney’s performance, the court must Toledo v. United States provide a “strong presumption that counsel’s conduct falls within the wide range of professionally Strickland reasonable assistance.” , 581 F.3d 678, 680 (8th Cir. 2009) (quoting , 466 U.S. at 689). To demonstrate prejudice, a movant must show a “reasonable Id probability that but for a counsel’s unprofessional errors, the result of the proceeding would have Meza-Lopez been different.” . “A reasonable probability is a probability suf�icient to undermine con�idence in the outcome or a substantial, not just conceivable, likelihood of a different result.” , 929 F.3d at 1044-45 (citation modi�ied). “In examining whether prejudice has resulted from Carter v. Hopkins counsel's de�icient performance, the ultimate focus is on whether counsel's de�icient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” , 9 2 F.3d 666, 669 (8th Cir. 1996) (citation modi�ied). To prevail on the performance prong, Whitaker must demonstrate that his counsel’s withdrawal of his objections fell below the wide range of professionally reasonable assistance. But Ruff v. Armontrout counsel “need not raise every single conceivable argument to defeat a claim of ineffective Toledo assistance of counsel.” , 77 F.3d 265, 268 (8th Cir. 1996). And “[i]t is not ineffective assistance of counsel to withdraw objections that have no support in the law.” , United States v. Rice 581 F.3d at 681. Rather, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” , 449 F.3d 887, 897 (8th Cir. 2006) (citation modi�ied). Here, Whitaker has not shown that counsel performed de�iciently by withdrawing his objections to the PSR. After the withdrawal, Whitaker received the sentence requested by his counsel, which was signi�icantly below the guideline range. Doc. [132] at 13, 20. Given the “wide range of professionally reasonable” decisions, counsel’s decision to withdraw Whitaker’s consideration of the pertinent law and facts. See Rice, 449 F.3d at 897. And Whitaker “cannot complain when the district court gave him exactly what his lawyer asked.” See United States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002) (affirming the district court’s judgment where counsel withdrew defendant’s objections to the PSR and requested a sentence “at the low end of the guideline range, which the district court did”). Simply put, counsel’s performance was not deficient. Because Whitaker fails to show deficient performance, the Court does not reach the prejudice prong of the ineffective assistance standard. IV. Conclusion For the reasons set forth above, Whitaker’s § 2255 motion is denied. Because the motion and the record conclusively show that Whitaker is not entitled to relief, no evidentiary hearing will be necessary. See Engelen, 68 F.3d at 240. And no certificate of appealability shall issue because Whitaker has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Accordingly, IT IS HEREBY ORDERED that Whitaker's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255, Doc. [1], is DENIED. IT IS FURTHER ORDERED that all other pending motions are DENIED as moot. IT IS FINALLY ORDERED that no certificate of appealability shall issue. A separate Order of Dismissal will accompany this Memorandum and Order. Dated this 18th day of December, 2025.
SARAH E. PITLYK UNITED STATES DISTRICT JUDGE