Appeal from the United States District Court for the Eastern District of Missouri.
The opinion of the court was delivered by: Benton, Circuit Judge.
Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
Marty L. Luke moved to set aside his conviction and sentence under28 U.S.C. § 2255. The district court denied the motion. Having jurisdiction under 28 U.S.C.*fn1 § 1291, this court affirms.
Police stopped Luke while he was riding in his wife's car near his parked truck. They suspected him of involvement in several recent burglaries based on: (1) eye-witnesses identifying him as the driver of a similar truck near the burglaries, (2) the recovery of stolen jewelry in Luke's brother's house during a planned search, and (3) observing Luke and his brother pawn jewelry similar to what was stolen. An officer testified that Luke and his wife gave permission to search the car, where police found jewelry matching the stolen items. Police impounded the car and drove Luke to his truck. An officer saw a box of ammunition on the front seat and asked to search the truck. Luke consented. The search revealed a pistol matching the one stolen in another recent robbery. Police arrested and searched Luke, finding more ammunition in his pocket. After his arrest, Luke was taken to the hospital to treat a mild concussion sustained earlier that day. He claims to have no memory of the day's events.
Luke waived his right to file pretrial motions, including any motion to suppress evidence. His attorney felt that the evidence was obtained legally and that a motion was meritless since Luke's sentence would be the same if any of the pistol/ammunition evidence was admitted. Before waiving his right to file pretrial motions, Luke asked his attorney for a second opinion; his attorney contacted the attorney in Luke's state case but received no response. Luke pled guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). He admitted that everything in the plea agreement was true and signed it. In the agreement, Luke admitted consenting to the search of his truck, and possessing the pistol and the ammunition. The court sentenced him to the statutory minimum of 180 months' imprisonment. Luke contends he asked his attorney to appeal his case, but his memory is unclear. He does recall that his brother advised him to request an appeal, and "the guy doing the paperwork kept asking." Luke's attorney does not recall such a request, and there is no documentation of it.
At the time of his plea and sentence, Luke was taking several prescribed medications for bipolar disorder and schizophrenia. His attorney knew only that he was on prescribed medication. They discussed whether he should have a competency evaluation, but the attorney testified that Luke made a knowing choice not to seek it. Two doctors evaluated Luke after he filed his § 2255 motion. Dr. C. Robert Cloninger expressed reservations about Luke's capacity to assist in his defense but declined to conclude that Luke was incompetent. Dr. Tanya Cunic, however, testified that Luke was competent at all times. She also found that Luke's responses during testing were similar to patients who faked bad answers and exaggerated symptoms. Both doctors believed that the symptoms of Luke's schizophrenia did not affect his ability to communicate or understand and that he was fully capable of understanding right and wrong.
The district court ruled that Luke had no meritorious argument for suppressing evidence and that his attorney properly consulted and advised Luke on sound alternative strategies. The court also found no credible evidence that Luke requested an appeal. Evaluating both doctors' opinions, the court found that Luke had been competent to enter his guilty plea, and Luke was not deprived of effective counsel.
This court reviews the denial of a § 2255 motion de novo. Hodge v. United States, 602 F.3d 935, 937 (8th Cir.), cert. denied, 131 S. Ct. 334 (2010). This court reviews with deference the "underlying findings of fact for clear error," including credibility determinations. Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 (8th Cir.), cert. denied, 132 S.Ct. 315 (2011), quoting United States v. Regenos, 405 F.3d 691, 692--93 (8th Cir.2005); Yodprasit v. United States, 294 F.3d 966, 969 (8th Cir. 2002). A finding is clearly erroneous when evidence in its entirety creates "a definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). Questions of ineffective legal assistance are mixed questions of law and fact. Scott v. United States, 473 f.3d 1262, 1263 (8th Cir. 2007).
A criminal defendant has the right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668, 685 (1984). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686. A defendant must prove that (1) counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Id. at 687; see Williams v. United States, 452 F.3d 1009, 1012 (8th Cir. 2006). A court may first examine the prejudice from the alleged deficiencies before examining the deficiencies themselves. See Strickland, 466 U.S.at 697. To establish prejudice, the defendant must demonstrate a reasonable probability that the result of the proceeding would have been different, but for counsel's deficiency. Id. at 694. A reasonable probability sufficiently undermines confidence in the outcome. Id. There is a "strong presumption that counsel's conduct falls within the wide range of professionally reasonable assistance." Id. at 689. Evaluating the alleged deficiency, a court should not allow hindsight to affect its analysis of whether counsel acted reasonably before and during trial. See Hood. v. United States, 342 F.3d 861, 863 (8th Cir. 2003), quoting Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (considering counsel's conduct during representation and avoiding judgment based on hindsight); see also Strickland, 466 U.S. at 689. In this case, Luke claims his counsel was ineffective by failing to (1) move to suppress evidence,
(2) file an appeal when asked to do so, and (3) properly examine Luke's competence to ...