The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Petitioner, Larry Jongewaard, moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Jongewaard is incarcerated at the Forrest City Low Federal Correctional Institution in Forrest City, Arkansas. Jongewaard asserts he is entitled to relief because he received ineffective assistance of counsel during his criminal trial and direct appeal. Respondent opposes his motion. Because Jongewaard has failed to demonstrate that his attorney's performance was deficient or that he was prejudiced by it, Jongewaard's motion to vacate, set aside, or correct his sentence is denied.*fn1
Late on September 23, 2007, Jongewaard placed a telephone call from his home in Omaha, Nebraska, to the home of Ted Schmidt in rural Mellette County, South Dakota. During the call, Jongewaard told Schmidt that he was going to kill Richard Jongewaard, Schmidt's best friend and Jongewaard's uncle. Jongewaard repeated his threat as many as forty times in a series of calls that continued into the early morning hours of September 24. During the calls, Jongewaard asked Schmidt to tape record the conversation and stated, "I know this is illegal for me to say this and I'm saying it." Jongewaard also described his plan to kill Richard with Richard's own gun and to then turn the gun on himself. At about 12:30 a.m. on September 24, Schmidt called Richard to warn him of the threat. Later that morning, Schmidt and Richard went to the Mellette County Courthouse to report the threatening phone calls and seek a restraining order on Richard's behalf.
On September 28, 2007, a criminal complaint was filed in the United States District Court for the District of South Dakota, charging Jongewaard with one count of transmitting a threat in interstate commerce. See CR 07-30095 (CR Docket), Docket 1. On October 24, 2007, a federal grand jury returned an indictment, again charging Jongewaard with one count of transmitting a threat in interstate commerce. CR Docket 3. A jury found Jongewaard guilty. CR Docket 37. On April 29, 2008, Jongewaard was sentenced to 60 months' imprisonment, a $1,000 fine, and 3 years of supervised release. CR Docket 50, Sentencing Transcript, at 11-12.
Jongewaard appealed his conviction on May 14, 2008. CR Docket 44. On appeal, Jongewaard argued that in order to convict him, the government was obligated to allege and prove that his statements were communicated to effect a change or achieve some goal through intimidation. He also argued that the court improperly admitted a hearsay statement and evidence of a prior act under Rule 404(b) of the Federal Rules of Evidence. United States v. Jongewaard, 567 F.3d 336, 338 (8th Cir. 2009). The Eighth Circuit Court of Appeals affirmed his conviction on June 3, 2009, and issued its mandate on July 17, 2009. Jongewaard petitioned for certiorari with the United States Supreme Court on October 5, 2009. The Court denied his petition on February 22, 2010. Jongewaard v. United States, 130 S. Ct. 1502 (2010).
Jongewaard filed the present motion on February 14, 2011. Docket 1. Jongewaard asserts he received ineffective assistance of counsel for five reasons. First, Jongewaard argues he was denied effective assistance of trial counsel because his trial counsel accused the person he threatened (his uncle) of sexually abusing him as a child. Jongewaard claims this was false and prejudiced him because it demonstrated a motive for the threats. Second, Jongewaard argues that counsel was ineffective for failing to question a trial witness about Richard's allegedly false testimony. Third, he asserts his trial counsel was ineffective in failing to refute an allegation that he had staked out the victim's ranch in 2006. Jongewaard's next argument is that his trial counsel was constitutionally ineffective in failing to mount a defense based on his First Amendment right to free speech. Finally, Jongewaard contends generally that counsel was ineffective on appeal for failing to argue constitutional violations and instead, making arguments he characterizes as relating to a "technical loophole."
A § 2255 motion is the "statutory analog of habeas corpus for persons in federal custody." Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987). A federal prisoner may seek relief from his sentence on the grounds that: (1) "the sentence was imposed in violation of the Constitution or laws of the United States," (2) "that the court was without jurisdiction to impose such sentence," or (3) "that the sentence was otherwise subject to collateral attack." 28 U.S.C. § 2255. Relief may be granted under § 2255 only for "transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
Jongewaard asserts that his representation was so deficient as to deprive him of a fair trial in violation of the Sixth Amendment. "The Sixth Amendment right to counsel guarantees a fair trial, not a perfect one." Willis v. United States, 87 F.3d 1004, 1008 (8th Cir. 1996). Whether Jongewaard's counsel's performance was constitutionally ineffective is determined by the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, Jongewaard must show that his trial counsel's performance was both professionally deficient and that it prejudiced him. Id. at 687.
Jongewaard " 'faces a heavy burden' to establish ineffective assistance of counsel pursuant to section 2255." DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)). Because of the problems inherent in hindsight analysis, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." United States v. Staples, 410 F.3d 484, 488 (8th Cir. 2005). As a result, decisions involving trial strategy are "virtually unchallengeable." Link v. Luebbers, 469 F.3d 1197, 1204 (8th Cir. 2006).
To show prejudice, Jongewaard must demonstrate that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "[I]f an ineffectiveness claim may more easily be disposed of . . . on the ground of lack of sufficient prejudice [than by assessing whether the challenged action was a reasonable trial strategy] . . . that course should be followed." Strickland, 466 U.S. at 697. Similarly, when no deficient performance is shown, the court need not consider whether a petitioner suffered prejudice from the allegedly deficient performance. Id.
Respondent has provided memoranda from Jongewaard's counsel, but not an affidavit regarding Jongewaard's allegations. Because Jongewaard's allegations are conclusory in nature and contrary to the court records in his underlying case, his claims are subject to summary denial and may be resolved without an affidavit ...