Bobbie Lee Lawson v. United States , 22 F. App'x 686 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1856
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Bobbie Lee Lawson, *
*
Appellant, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
United States of America, * [UNPUBLISHED]
*
Appellee. *
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Submitted: November 15, 2001
Filed: December 7, 2001
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Before WOLLMAN, Chief Judge, JOHN R. GIBSON and FAGG, Circuit Judges.
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PER CURIAM.
After we set aside Bobbie Lee Lawson’s guilty plea, conviction of three counts
of being a felon in possession of a firearm, and sentence to 180 months imprisonment,
Lawson withdrew the guilty plea, was reindicted, and tried. Lawson was convicted
of four counts of being a felon in possession of a firearm and sentenced to 235
months imprisonment. We affirmed Lawson’s conviction on appeal. See United
States v. Lawson, 173 F.3d 666, 672 (8th Cir.), cert. denied, 528 U.S. 909 (1999).
Lawson then brought a motion to vacate his sentence under 28 U.S.C. § 2255 (1994
& Supp. IV 1998), claiming, among other things, that he received ineffective
assistance of trial counsel. The district court1 denied Lawson’s motion without a
hearing, but granted a certificate of appealability on the issue of whether Lawson’s
trial counsel was ineffective for failing to interview and subpoena certain witnesses.
On appeal, Lawson contends he is entitled to a hearing on his ineffective assistance
of counsel claim. Having reviewed the district court’s decision de novo and
concluded that the motion, files, and record of the case unmistakably show that
Lawson is not entitled to relief, we affirm. See Smith v. United States, 182 F.3d
1023, 1025 (8th Cir. 1999).
We reject Lawson’s request for a hearing because he cannot show that
counsel’s performance fell below an objective standard of reasonableness and that he
was prejudiced by counsel’s deficient performance. See Strickland v. Washington,
466 U.S. 668, 689-90 (1984). Lawson correctly contends that failure to interview
potential witnesses is not a decision related to trial strategy, thus counsel’s
performance was potentially unreasonable. See Whitmore v. Lockhart, 8 F.3d 614,
618-19 (8th Cir. 1993). Even if counsel’s decision not to interview the potential
witnesses was unreasonable, Lawson cannot prove prejudice. The testimony Lawson
believed these witnesses could provide would not help prove his innocence of
possessing a gun. Lawson contends these witnesses would bolster his claim, and
refute the prosecution’s claim, that he was the target, not the aggressor, of earlier
gunfire. Regardless of earlier events, the firearm in question was recovered from
Lawson’s house immediately after he surrendered to police, thus establishing his
possession. Additionally, because the challenged sentence runs concurrently with the
sentences for three other counts, the challenged conviction and sentence has no
harmful impact on Lawson’s prison term. Lawson contests this reasoning, claiming
it is an inappropriate application of the concurrent sentence doctrine. See United
States v. Smith, 601 F.2d 972, 973-74 (8th Cir. 1979). The concurrent sentence
1
The Honorable Scott O. Wright, Senior United States District Judge for the
Western District of Missouri.
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doctrine permits courts to dismiss without reaching the merits a claim attacking fewer
than all multiple concurrent sentences if success on the claim would not change the
term of imprisonment. Id. Because the district court denied Lawson’s claim on the
merits, we disagree with Lawson’s premise that the district court applied the
concurrent sentence doctrine at all. Instead, we believe the district court properly
discussed the concurrent sentencing scheme as one of the reasons why Lawson’s
claim fails to show prejudice. Finally, we reject Lawson’s claim that his longer
sentence imposed after trial shows prejudice. Lawson’s sentence after trial was
longer than his initial sentence after his guilty plea because Lawson lost the benefit
of a two-level reduction for acceptance of responsibility. Both sentences were
roughly in the middle of the guidelines range.
Finding no reversible error, we thus affirm. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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