## United States Court of Appeals FOR THE EIGHTH CIRCUIT

________________ No. 97-2299

________________ Kenneth Blankenship, * Appellant, *

v. * District Court for the United States of America, * Appellee. * *

* Appeal from the United States

* Eastern District of Missouri.

*

________________ Submitted: May 12, 1998 Filed: October 6, 1998

________________ Before BOWMAN, Chief Judge, HEANEY and HANSEN, Circuit Judges.

________________ HANSEN, Circuit Judge.

Kenneth Blankenship appeals the district court's summary denial of hi s post conviction motion attacking his sentence on a claim of ineffective assistance o f counsel. See 28 U.S.C. § 2255 (1996). He argues that the district court erred b y denying his motion without a hearing and by not providing any case-specific reasons for the summary disposition. We affirm.2 I.

In 1992, Blankenship entered a conditional guilty plea to being a felon i n possession o f a firearm, in violation of 18 U.S.C. § 922(g) (1988), and a panel of this court affirmed his conviction. See United States v. Blank enship , 67 F.3d 673, 678 (8th Cir. 1995). Our prior panel opinion set forth the facts of this case, see id. at 674-75, 678, which we briefly summarize here. A man named John Kellick, his girlfriend, and two others, went to Blankenship's trailer home late one night seeking money tha t Kellick claimed Blankenship owed him. Id. at 674. An argument ensued betwee n Kellick and Blankenship. Id. Blankenship said Kellick was intoxicated and threatened to harm Blankenship's fa

mily. Id. at 678. When the argument escalated, Blankenship returnedinside his trailer (which did not have a telephone), left through a back door, and walked to his father's nearby trailer (which also had no telephone). Id. at 674, 678. There, he retr

ieved a shotgun and returned to the confrontation at his own home in an asserted effort to protect his family. Id. When a scuffle broke out, the shotgu n Blankenship carried discharged, killing Kellick. Id.

Blankenshi p pleaded guilty to being a felon in possession of a firearm, bu t conditioned his guilty plea upon preserving his right to raise two issues on appeal: (1) the district court's denial of his motion to dismiss the indictment on the basis of th e Speedy Trial Act, 18 U.S.C. § 3161-3174; and (2) the district court's rejection of his asserted justif

ication defense. A panel of this court rejected Blankenship's arguments and affirmed the judgment of the district court. Id. at 678.
Currently pending is Blankenship's first 28 U.S.C. § 2255 motion, in which he claim s that his counsel was ineffective at sentencing for not requesting a downwar d departure from the federal Sentencing Guidelines on the ground that the wrongfu l conduct of Kellick, the vic tim, contributed significantly to provoking the offense. See U.S. S ENTENCING G UIDELINES M ANUAL § 5K2.10 (1995) (Policy Statement). Th e district court summarily

denied the motion without holding an evidentiary hearing and3

without providing reasons for the summary dispositi on. Blankenship appealed, and this court granted a certificate of appealability for his ineffective assis tance of counsel claim.

II.
On appeal, Blankenship argues that the district cour t erred by summarily denying habeas relief without holding a hearing on his ineffective assistance of counsel claim. We review for an abuse of discretion the district court's decision to deny a section 2255 motion wi thout a hearing, and we review de novo the district court's rejection of th e claims involve d. Payne v. United States , 78 F.3d 343, 347 (8th Cir. 1996). A section 2255 " petitioner is entitled to an evidentiary hearing when the facts alleged, if true , wo uld entitle him to relief," id. (internal quotations omitted), unless the motion, files , a n d records of the case conclusively show that the movant is not entitled to relief. 28 U.S.C. § 2 255; Engelen v. United States , 68 F.3d 238, 240 (8th Cir. 1995)

. "Ac cordingly, a petition can be dismissed without a hearing if (1) the petitioner' s allegation s, accepted as true, would not entitle the petitioner to relief, or (2) th e allegations cannot be accepted as true because they are contradicted by the record , inhere ntly incredible, or conclusions rather than statements of fact." Id. Thus, t o determine whether Blankenship was entitled to an evidentiary hearing, we must consider the validity of his allegation of i neffective assistance of counsel in light of the record in his case.

The distri ct court's summary dismissal does not expressly state its reasons fo r rejecting Blankenship's claim of ineffective assistance , and Blankenship seeks a remand to allow th e district court to articulate its reasons. While the preferred practice would most certainly be

for the district court to have enumerated its reasons for the summary dismissal, our review of the district court's rejection of the claims involved is de novo.Contrary to the dissent's view, we do not hold that the district court should 1 have held a hearing on Blankenship's § 2255 motion.
4 See P ayne , 78 F.3d at 347. We conclude that a remand is not necessary, and we may affirm the district court on any basis supported by the record. 1

To pr evail on an allegation of ineffective assistance of counsel at sentencing , Blankenship must show both (1) that his attorney's performance was deficient, falling bel ow professional standards of competence; and (2) that the deficient performanc e prejudic ed his defense. See Strickland v. Washington , 466 U.S. 668, 687 (1984); see also Waj da v. United States , 64 F.3d 385, 387 (8th Cir. 1995). In assessing counsel's perform ance, courts defer to reasonable trial strategies and "indulge a stron g presumption that counsel's conduct falls within the wide range of reasonabl e professional assistance." Strickland , 466 U.S. at 689; see also Henderson v. Norris , 118 F.3d 1283, 1287 (8th Cir. 1997), cert. denied , 118 S. Ct. 1081 (1998). Whe n consi dering whether the defense suffered prejudice, a court must determine whethe r "there is a reasonable probability [sufficient to undermine confidence in the outcome] that, bu t for counsel's unprofessional errors, the result of the proceeding would hav e been different." Stri ckland , 466 U.S. at 694; Wise v. Bowersox , 136 F.3d 1197, 1206 (8th Cir . 1998). We also consider "whether the result of the proceeding wa s fundamentally unfair or unreliable." Lockhart v. Fretwell , 506 U.S. 364, 369 (1993).
Turning first t

o the prejudice prong of the familiar Stricklandtest, we recognize that we need not address the competency of counsel's performanc e if the prejudice issue is di spositive. See 466 U.S. at 697 (noting "a court need not determine whethe r counsel 's performance was deficient before examining the prejudice suffered by th e defendant as a result of the alleged deficiencies"); see also United States v. Apfel , 97 F.3d 1074, 1076 (8th Cir. 1996). We consider whether the motion for downwar d departure , which Blankenship asserts his counsel should have made, had a reasonable probability of affecting the outcome or fundamental fairness of Blankenship's5

sentencing. No prejudice arises from counsel's failure to raise a claim that had littl e likelihood of success on the merits. See Thomas v. United States , 951 F.2 d 902, 904-05 (8th Cir. 1991).

The federa l Sentencing Guidelines provide that a district court may grant a downward departure "below the guideline range to reflect the nature and circumstances of the offense" in cases where "the victim's wrongful conduct contributed significantly to provoking the offense behavior." USSG § 5K2.10, p.s. This policy statement further provides factors to consider "in deciding the extent of a sentence reduction" on thi s basis. Id. These factors include the relevant physical characteristics of the victim i n comparison with those of the defendant, the defendant's efforts to prevent a
con frontation, the danger either reasonably perceived by the defendant or actuall y presented by the victim, and "any other relevant cond uct by the victim that substantially contributed to the danger presented." Id. § 5K2.10(a)-(e), p.s.

In hi s affidavit in support of his ineffective assistance of counsel claim , Blankenship states that he was awakened one night by Kellick and a group of people outside his trailer home. He asserts that Kellick appeared to be drunk and threatened to harm Blanke nship's father. Fearing for his family's safety, Blankenship then left his trailer by the back door, retrieved a gun from his father's trailer, and returned, intending to scare Kellick

into leaving. After a struggle, the shotgun discharged, killing Kellick. Bla nkenship then had his wife call the police from a neighbor's house. Blankenshi p asserts that Kellick had a reputation for violence. ( See Appellant's Adden. at 15-17.) We no te that these same facts were before the district court and this court on direc t appeal in support of Blankenship's justific ation defense, which was rejected as a matter of law. See Blankenship , 67 F.3d at 678. Aware of these facts (as well as th e Pr esentence Investigation Report's recommendation of an upward departure on th e ground t hat the seriousness of his criminal history was under-represented), the district
court sentenced Blankenship at the top of the applicable Guidelines sentencing range. In his direct a

ppeal, we held that even if this circuit recognized a justification defense,6

Blankenship's evidence did not satisfy the requisite elements of such a defense because he "r ecklessly placed himself in the situation," purposefully returned to continue th e confron tation after retrieving a gun, and had "reasonable alternatives" aside fro m escalating the c onfrontation, including avoiding the confrontation by staying inside his home. Id. Additionally, we concluded that "there was no evidence that Kellick wa s armed or presented a real threat of serious harm to Blankenship or his family." Id

. While a defendant need not prove the elements of a justification defense in order t o obtain a downward departure on the basis of the victim's wrongful conduct, the specific find ings in the record of this case regarding those elements eliminate any reasonabl e likelihood that the district court would have g ranted a downward departure on the basis of the victim's wrongful conduct.
A section 5K2.10 motion for downward departure is wa rranted when the victim's behavior significantly contributed to provoking the behavior of the of fense , which in this
case is possession of a firearm by a convicted felon. This policy statement manifests a concern fo r proportionality in the defendant's response. See United States v. Shortt , 919 F.2d 1325, 1328 (8th Cir. 1990) (holding that w hile adultery is wrongful, departure
was not warranted because a plot to blow up the adulterers is a disproportionat e response to such conduct). The record here indicates that the victim, Kellick , wrongfully started or provoked a confrontation outside Blankenship's home, but he was not armed and presented no serious threat of harm. Blankenship chose to enter into the
con frontation and then to escalate the confrontation by leaving and returning with a loaded we apon, though other reasonable alternatives were available to him. He could have a s easily sent his wife to call the police at the outset of the argument as he did at its tragic end. On this record, we are convinced that the district court would not have concl uded that the victim's wrongful conduct substantially contributed to the behavior of the offe nse -- being a felon in possession of a firearm -- because Blankenship' s response was disproportionate to the threat posed by the victim's conduct.7

Bl ankenship argues that a downward departure was probable because his cas e is similar to the facts of United States v. Yellow Earrings , 891 F.2d 650, 653-54 (8th Cir. 1989). In that case, this court affirmed the district court's grant of a downwar d departure motion based on the victim's wrongful conduct where the defendant stabbed the victim after the victim had attempted to sexually abuse the defendant. Id. W e conclude that the situation in Yellow Earrings was not similar to the case at hand. First, the vict im in Yellow Earrings was in the same room as the defendant and wa s attempti ng to force intercourse on the defendant; the victim also verbally abused th e defendant. The victim's violent and abusive beh avior provoked a violent response from the defendant. Id. To the contrary, while Kellick's conduct was wrongful, he had not become vio lent but was merely yelling outside the trailer house, and he did not have a weapon. Blankenship's response of bringing a weapon into this situatio n simply was not proportionate to the threat. Second, in this habeas case we are bound by the findings andconclusions already of record. Specifically, the record contains specific finding s that the victim was not a serious threat and was not armed. The district court did not have discretion to ignore the existing record, and we reject Blankenship's contention that Yellow Earrings is dispositive here.

Our re view of the record convinces us that Blankenship has not established a reasonable probability that the result of his sentencing would have been different had his attorney sought a downward departure on the basis of the vi ctim's wrongful conduct. Thus, his ineffective assistance of counsel claim fails for lack of a showing of prejudice. Also as noted above, because we affirm upon our de novo review of the record and for th e reasons stated, we reject Blankenship's argument that the case must be remande d for the district court to articulate its case-specific findings supporting summar y disposition.

III.
Accordingly, we affirm the judgment of the district court.8

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. In my view, Kenneth Blankenship’s counsel wa s inef fective at sentencing. On direct review of Blankenship’s conviction, this cour t recited the facts leading to the victim’s death.

Blank enship’s proffered evidence would tend to show that a n into xicated Kellick, accompanied by his son and two women, came t o Blanke nship’s trailer home after midnight, seeking the return of som e money a nd threatening harm to Blankenship and his family if he did no t pay
. Blankenship took the threats of harm seriously because he kne w Kel lick to have a reputation for violence when he was intoxicated and to have a reputation for carrying a knife or razor in his possession

. Bla nkenship went out to talk to Kellick. When the confrontatio n escalated, Blankenship returned to his bedroom in the trailer, put on hi s pants, and exited through th e back door when Kellick was not paying any atte ntion. Blankenship walked to his father’s nearby trailer, retrieved a shotgun, and returned to the yard to protect his family. Neithe r Blankenship nor his father had a telephone. The two men becam e involved in a scuffle as Kellick refused to leave and grabbed for th e sho tgun. The shotgun inadvertently discharged in the scuffle and kille d Kellick. United States v. Blankenship , 67 F.3d 673, 678 (8th Cir. 1995).
We determined that under these facts, Blankenship was not entitled to the defense of justification. We did, however, determine that Blankenship and Kellick, the victim, became involved in a scuffle when Kellick refused to leave. We further noted that at that p oint Kellick grabbed for the shotgun, which was held by Blankenship, and th e shot gun inadvertently discharged in the scuffle and killed Kellick. Under thes e cir cumstances, it was clear error for the district court to impose a sentence based o n voluntary rather than involuntary manslaughter. The relevant statute provides:The difference between the two levels of involuntary manslaughter are 2 defined in the sentencing guidelines as follows: Involuntary Manslaughter (a) Base Offense Level: (1) 10 , if the conduct was criminally negligent; or (2) 14 , if the conduct was reckless. U.S.S.G. § 2A1.4.
9

Mansl aughter

is the unlawful killing of a human being withou t malice. It is of two kinds: Voluntary--Upon a sudden quarrel or heat of passion. Involuntary--In the commission of an unla wful act not amounting to a felo ny, or in the commission in an unlawful manner, or without du e caution and circumspection, of a lawful act which might produce death.
18 U.S.C. § 1112(a) (1984).
Here, Kellick was not killed upon a sudden quarrel or heat of passion. He was,
as our opinion notes, killed during a scuffle in which Kellick attempted to take th e shot gun from Blankenship’s hands. While I accept our earlier decision that a defense of justif ication was not justified, certainly the district court on sentencing could an d should have ruled that the manslaughter was involuntary. This would have reduced the base off ense level from 25 to 10 or 14. Either level would have resulted in a 2 significantly lower sentence for Blankenship than that imposed by the district court.
I assume, for the purpose of this opinion, that the conduct may have been reckless because Blankenship went in the house and returned with the shotgun, but his10

actions certainly did not rise to the level of voluntary man slaughter when it is clear from our prior opinion that Kellick attempted to take the shotgun from Blankenship and was killed during the scu ffle. Not only was it clear error for the district court to have ruled that B lankenship’s conduct amounted to voluntary manslaughter, but counsel wa s clearly ineffective for failing to assert this claim at the sentencing hearing. Finally, even if it be argued that Blankenship’s conduct amounted to voluntary manslaughter, counsel was clearly ineffective in not requesting that the district court depart downward.
I agree with the majority that the district court should have held a hearing on this matter, but would not be as charitable. My basic disagreement is with the majority’s
as sertion that no prejudice arises from counsel’s failure to raise a claim that has littl e likelihood of success on the merits. I believe the likelihood of success is great.
While my preference would be to have the district court sentence B lankenship for involuntary manslaughter, at the very least this case shou ld be remanded with directions to grant a substantial downward departure.
A true copy.

Attest.
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.