United States Court of Appeals

For the Eighth Circuit

___________________________

No. 14-3700

___________________________

Nicole Walker

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

____________

Appeal from United States District Court 

for the Southern District of Iowa - Des Moines

____________

 Submitted: October 19, 2015

 Filed: January 14, 2016

____________

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.

____________

RILEY, Chief Judge.

Nicole Walker pled guilty to conspiring to manufacture and distribute

methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1). The district

court sentenced Walker to a mandatory minimum ten years imprisonment. We

1

The Honorable James E. Gritzner, then Chief Judge, United States District 1

Court for the Southern District of Iowa. 
affirmed Walker’s sentence on direct appeal. See United States v. Walker, 688 F.3d

416, 418 (8th Cir. 2012). Walker now appeals the district court’s denial of her

motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255.

2

Upon careful de novo review, see Thomas v. United States, 737 F.3d 1202, 1206 (8th

Cir. 2013), we conclude the district court properly denied Walker relief.

I. BACKGROUND

On August 18, 2010, a grand jury charged Walker with one count of conspiring

to manufacture and distribute at least 50 grams of actual methamphetamine and 500

grams of a mixture or substance containing methamphetamine. Through counsel,

Walker entered into extensive plea negotiations with the government. In an attempt

to reduce the statutory mandatory minimum Walker faced fromten yearsto five years

and to lower her sentencing range under the United States Sentencing Guidelines

(U.S.S.G. or Guidelines), Walker and her counsel repeatedly sought to lower the drug

quantity to which Walker would plead guilty. 

The government did not relent entirely but offered to let Walker plead guilty

to a lesser-included offense under § 841(b)(1)(B) and contest the drug quantity at

sentencing. After detailed discussions with her counsel about the advantages and

disadvantages of the government’s plea offer, Walker pled guilty on February 24,

2011, to conspiring to manufacture and distribute at least five grams of actual

methamphetamine or 50 grams of a mixture or substance containing

methamphetamine. 

In signing the written plea agreement, Walker averred she understood she was

pleading guilty to a charge that carried “a mandatory minimum sentence of at least

five years in prison and a maximum sentence of up to forty years in prison.” The

agreement further advised Walker

We have appellate jurisdiction under 28 U.S.C. § 1291. 2

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the government may argue atsentencing that [Walker] isresponsible for

at least 50 grams of actual methamphetamine or 500 grams of a mixture

and substance containing methamphetamine and, if the district court

finds by a preponderance ofthe evidence that[Walker] isresponsible for

thislarger amount, the court will impose a ten-year mandatoryminimum

sentence.

Walker understood that regardless of which mandatoryminimum applied, the district

court could “not impose a sentence less than the mandatory minimum sentence

unless” it found Walker qualified for safety-valve relief under 18 U.S.C. § 3553(f).3

Lastly, Walker agreed no one had promised she would “be eligible for a sentence of

less than the mandatory minimum.” 

With respect to the voluntariness of her plea, Walker stated she “had a full

opportunity to discuss” her case and the consequences of her plea with her counsel

and was satisfied with her counsel’s representation. Walker stated she had “no

complaint about the time and attention” her counsel “devoted to [her] case nor the

advice” he gave. 

At Walker’s change-of-plea hearing on February 24, 2011, the magistrate

judge reiterated the key terms in Walker’s plea agreement, including Walker could

4

face a ten-year mandatory minimum. See Fed. R. Crim. P. 11(b), (c) (change of plea). 

Walker restated she was satisfied with her counsel and averred no one promised or

predicted the exactsentence she would receive. On the magistrate judge’s report and

recommendation, the district court accepted Walker’s guilty plea. 

In cases involving a violation of §§ 841 and 846, 18 U.S.C. § 3553(f) allows 3

a sentencing court to impose a sentence below an otherwise applicable statutory

minimum if certain statutory conditions are met. See id. § 3553(f)(1)-(5).

The Honorable Thomas J. Shields, United States Magistrate Judge for the

4

Southern District of Iowa. 

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Beginning September 20, 2011, the district court conducted a sentencing

hearing at which the drug quantity attributed to Walker was sharply contested. The

government asserted Walker was responsible for 142.5 grams of actual

methamphetamine, 182 grams of a purer form of methamphetamine known as “ice,”

and 724 grams of a mixture and substance containing methamphetamine. Walker, on

the other hand, urged the district court to “find a drug quantity in a range of 100 to

200 grams mixture with 5 grams of such quantity being pure/ice.” After reviewing

“all of the evidence” in Walker’s case, the district court concluded a preponderance

of the evidence supported attributing the greater drug quantity to Walker despite

“some reservation about the precision of that amount.” 

With respect to Walker’s request for safety-valve relief, the district court

concluded Walker did not qualify because she failed to demonstrate she “truthfully

provided information regarding her offense, at least in complete detail,” as required

by 18 U.S.C. § 3553(f)(5). Based on its drug-quantity finding and Walker’s

ineligibility for safety-valve relief, the district court sentenced Walker to the statutory

mandatory minimum ten years in prison. See 21 U.S.C. § 841(b)(1)(A) (imposing a

mandatory minimum of ten years for a violation of § 841(a)(1) involving “50 grams

or more of methamphetamine . . . or 500 grams or more of a mixture or substance

containing a detectable amount of methamphetamine”). 

Walker appealed her sentence, challenging the total drug quantity attributed to

her and the district court’s conclusion she had distributed “ice.” Walker, 688 F.3d at

418 n.2, 420, 422-25. We affirmed. See id. at 418, 426. On October 31, 2012,

Walker petitioned the Supreme Court of the United States for a writ of certiorari,

alleging the district court failed to make sufficient fact findings to support its drugquantity determination and improperly interpreted and applied the Guidelines

definition of “ice.” The Supreme Court denied certiorari on December 10, 2012. See

Walker v. United States, ___U.S. ___, 133 S. Ct. 801 (2012). 

-4-
On December 26, 2012, Walker filed a pro se § 2255motion, primarily alleging

ineffective assistance of counsel. The district court appointed counsel to represent

Walker, and her counsel then filed two amended motions, raising additional grounds

for relief. The district court denied relief without an evidentiary hearing. Walker

timely appeals, arguing the district court erred in failing to (1) retroactively apply

Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151 (2013), to her case; (2) find

her counsel was constitutionally ineffective during her plea and on appeal; and

(3) conduct an evidentiary hearing.

 

II. DISCUSSION

A. Mandatory Minimum Sentence

At the time of Walker’s sentencing in 2011, controlling Supreme Court

precedent held that the Constitution permitted a judge to find, by a preponderance of

the evidence, any fact that increased the mandatory minimum sentence for a crime. 

See Harris v. United States, 536 U.S. 545, 568-69 (2002); accord United States v.

Webb, 545 F.3d 673, 677 (8th Cir. 2008). On June 13, 2013, the Supreme Court

overruled Harris in Alleyne, holding that any fact that increases the mandatory

minimum sentence must be submitted to a jury and found beyond a reasonable doubt. 

See Alleyne, 570 U.S. at ___, 133 S. Ct. at 2155. Although Walker’s direct appeal

was final before the Supreme Court decided Alleyne, Walker asserts she is entitled

to re-sentencing under Alleyne because, in her view, (1) “she suffered a plain error

when the district court applied a preponderance of the evidence standard to increase

her mandatoryminimum”; (2) “Alleyne should apply retroactively”; and (3) she “was

entitled to effective assistance of certiorari counsel both under federal statute and

under the United States Constitution.” Walker’s arguments are unavailing.

1. Plain Error

Walker first claims she “is entitled to relief because it was plain error for the

sentencing court to increase her mandatory minimum based on a fact found by [the

district court by] the preponderance of the evidence”—the sentencing procedure

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authorized by Harris but subsequently overruled in Alleyne. See Fed. R. Crim. P.

52(b) (“A plain error that affects substantial rights may be considered even though

it was not brought to the court’s attention.”). In claiming plain error, Walker fails to

recognize “‘the important distinction between direct review and collateral review.’” 

Teague v. Lane, 489 U.S. 288, 307 (1989) (plurality opinion) (quoting Yates v.

Aiken, 484 U.S. 211, 215 (1988)). “Because it wasintended for use on direct appeal,

. . . the ‘plain error’ standard is out of place when a prisoner launches a collateral

attack against a criminal conviction after society’s legitimate interest in the finality

of the judgment has been perfected . . . by the affirmance of the conviction on

appeal.” United States v. Frady, 456 U.S. 152, 164 (1982).

2. Retroactivity of Alleyne

Walker’s collateral attack on her sentence—which became final on direct

review before the decision in Alleyne—is governed by Teague. See Whorton v.

Bockting, 549 U.S. 406, 416 (2007) (explaining Teague “laid out the framework to”

use in deciding if a rule announced in a Supreme Court opinion applies “retroactively

to judgments in criminal cases that are already final on direct review”); Becht v.

United States, 403 F.3d 541, 545 n.3 (8th Cir. 2005) (recognizing we generally must

determine whether a petitioner’s § 2255 “motion is barred by the rule on retroactivity

announced in Teague”). Under Teague, Supreme Court decisions that create “new

constitutional rules of criminal procedure” generally do not apply “to those cases

which have become final before the new rules are announced.” Teague, 489 U.S. at

310. “Teague stated two exceptions: ‘[W]atershed rules of criminal procedure’ and

rules placing ‘conduct beyond the power of the [government] to proscribe.’” Chaidez

v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1107 n.3 (2013) (alterations in

original) (quoting Teague, 489 U.S. at 311). 

 

Walker contends “Alleyne should be applied retroactively to [her] case because

it was a watershed exception.” Relying on pre-Teague caseslike Hankerson v. North

Carolina, 432 U.S. 233, 243 (1977), Ivan V. v. City of New York, 407 U.S. 203, 205

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(1972) (per curiam), and In re Winship, 397 U.S. 358, 367-68 (1970), Walker asserts

“[t]he reasonable doubt rule of Alleyne is a ‘watershed rule’ because its very point is

to protect the innocent and balance the contest between government and accused.”

We disagree. 

The Supreme Court “give[s] retroactive effect to only a small set of ‘watershed

rules of criminal procedure implicating the fundamental fairness and accuracy of the

criminal proceeding.’” Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (quoting

Saffle v. Parks, 494 U.S. 484, 495 (1990)). “[T]o qualify as watershed, a . . . rule

must be necessary to prevent ‘an impermissibly large risk’ of an inaccurate” outcome

and “must ‘alter our understanding of the bedrock procedural elements essential to

the fairness of a proceeding.’” Whorton, 549 U.S. at 418 (quoting Schriro, 542 U.S.

at 352). Explaining the exception is “extremely narrow” and observing “it is unlikely

that any such rules have yet to emerge,” the Supreme Court has, “in the years since

Teague, . . . rejected every claim that a new rule satisfied the requirements for

watershed status.” Id. at 417-18 (quoting Schriro, 542 U.S. at 352) (internal marks

omitted).

To date, neither the Supreme Court nor this court has “held that Alleyne applies

retroactively” on collateral review. Thompson v. Roy, 793 F.3d 843, 846 (8th Cir.

2015); accord Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013). And, as

Walker concedes, every circuit court to consider this issue has concluded Alleyne

does not apply retroactively. See, e.g., Butterworth v. United States, 775 F.3d 459,

464-65 (1st Cir. 2015); United States v. Olvera, 775 F.3d 726, 730 & n.12 (5th Cir.

2015) (listing cases from eight circuits). 

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Although the circumstances and analysis have varied, the circuit courts have

agreed that even if Alleyne announced a new rule, the decision is not the rare 5

exception that announced a watershed rule of criminal procedure that “‘alter[ed] our

understanding of the bedrock procedural elements’ of the adjudicatory process.” 

United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014) (quoting Teague, 489

U.S. at 311); accord Hughes v. United States, 770 F.3d 814, 818-19 (9th Cir. 2014). 

In reaching that conclusion, the circuit courts have noted Alleyne was an extension

of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), in which the Supreme Court

held “[o]ther than the fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” See, e.g., Jeanty v. Warden, FCI-Miami, 757

F.3d 1283, 1285 (11th Cir. 2014) (per curiam). 

“[T]he Supreme Court has not made Apprendi retroactive to cases on collateral

review,” Abdullah v. United States, 240 F.3d 683, 687 (8th Cir. 2001), and has

“decided that other rules based on Apprendi do not apply retroactively on collateral

review,” Simpson, 721 F.3d at 876 (citing Schriro, 542 U.S. at 349, 358, in which the

Supreme Court determined the extension of Apprendi to judicial factfinding in Ring

v. Arizona, 536 U.S. 584 (2002), did not apply retroactively). The circuit courts have

repeatedly followed suit. See, e.g., Olvera, 775 F.3d at 731 & n.16; In re Anderson,

396 F.3d 1336, 1339-40 (11th Cir. 2005). In concluding Alleyne does not apply

retroactively, the circuit courts have reasoned, “If Apprendi . . . does not apply

retroactively, then a case extending Apprendi should not apply retroactively.” 

Hughes, 770 F.3d at 818. 

Some circuit courts have decided Alleyne announced a newconstitutional rule,

5

see, e.g., Simpson, 721 F.3d at 876, while others have declined to answer that

question, see, e.g., In re Mazzio, 756 F.3d 487, 489 n.2 (6th Cir. 2014). 

-8-
That reasoning is persuasive and consistent with our precedent. See Burton v.

Fabian, 612 F.3d 1003, 1010 n.4 (8th Cir. 2010) (“[T]he Eighth Circuit has

consistently held that Apprendi and its progeny are not rules of watershed magnitude

and has declined to apply those cases retroactively.”). For example, in United States

v. Moss, 252 F.3d 993, 997 (8th Cir. 2001), we held “that Apprendi [wa]s not of

watershed magnitude and that Teague bars petitioners from raising Apprendi claims

on collateral review.” We explained “we d[id] not believe Apprendi’s rule

recharacterizing certain facts as offense elements that were previously thought to be

sentencing factors reside[d] anywhere near that central core of fundamental rules that

are absolutely necessary to insure a fair trial.” Id. at 998. 

Our analysis in Moss applies with full force here. Walker’s attempt to

distinguish Apprendi and Alleyne based on the mandatory nature of a statutory

minimumand the frequencywith which suchminimums might apply failsto convince

us the extension of Apprendi in Alleyne announced the first watershed rule found

under Teague. See Whorton, 549 U.S. at 418; Moss, 252 F.3d at 998 n.5. We now

6

join those circuit courts holding that even if Alleyne announced a new constitutional

rule, that rule does not apply retroactively on collateral review. See, e.g.,

Butterworth, 775 F.3d at 465 (reviewing analogous precedent and reaching “the same

conclusion about retroactivity for Alleyne as . . . for Apprendi”).

Walker also triesto distinguish Moss on the grounds that “Walker’s certiorari 6

petition was pending on direct appeal after the Supreme Court accepted Alleyne for

review.” The timing in Walker’s case understandably makes the non-retroactivity of

Alleyne more frustrating for her, but it does not change the fact Walker’s sentence

was final on direct review by the relevant time—the date the Supreme Court decided

Alleyne. See Alleyne, 570 U.S. at ___, 133 S. Ct. at 2155; Walker, ___U.S. at ___,

133 S. Ct. at 801. 

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3. Ineffective Assistance of Counsel - Petition for Writ of

Certiorari

Walker next argues her “counsel wasineffective for failing to raise the Alleyne

issuesin her petition for certiorari.” “We review de novo ‘post conviction ineffective

assistance claims brought under § 2255’ and the ‘underlying findings of fact for clear

error.’” Calkins v. United States, 795 F.3d 896, 897 (8th Cir. 2015) (quoting

Tinajero-Ortiz v. United States, 635 F.3d 1100, 1103 (8th Cir. 2011)).

Section 2255(a) authorizes a federal prisoner to move for release “upon the

ground that [her] sentence wasimposed in violation of the Constitution or laws of the

United States.” 28 U.S.C. § 2255(a). Walker asserts both constitutional and statutory

ineffective-assistance claims. Both fail. 

a. Constitutional Claim

Walker asserts she “was constitutionally entitled to effective assistance of

counsel during the writ of certiorari phase of her appeal.” Dubiously urging us to

“decline to follow Ross [v. Moffitt, 417 U.S. 600, 617 (1974)], the case in which the

Supreme Court held the states are not obligated to provide counsel for United States

Supreme Court certiorari petitioners,” Walker argues we “should find the Fifth, Sixth,

and Fourteenth Amendments guarantee Walker the right to effective assistance of

counsel when petitioning for a writ of certiorari.” 

Walker’s constitutional claimis contrary to Supreme Court precedent, see, e.g,

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“Our cases establish that the right

to appointed counsel extends to the first appeal of right, and no further. Thus, we

have rejected suggestions that we establish a right to counsel on discretionary

appeals.”), and our decision in Steele v. United States, 518 F.3d 986, 989 (8th Cir.

2008), in which we held a § 2255 petitioner “had no constitutional right to counsel

for the filing of a certiorari petition” with the Supreme Court. In Steele, we explained

that absent a constitutional right to counsel, a petitioner had no constitutional right

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to effective assistance; therefore, her “§ 2255 claim for ineffective assistance of

counsel [could ]not succeed.” Steele, 518 F.3d at 988; accord Wainwright v. Torna,

455 U.S. 586, 587-88 (1982) (per curiam) (explaining a defendant who “had no

constitutional right to counsel . . . could not be deprived of the effective assistance of

counsel”). 

In Steele, we also rejected the petitioner’s contention “that Federal Rule of

Criminal Procedure 44(a) and our circuit plan to implement the Criminal Justice Act

create[d] a right to have effective assistance of counsel to file a petition for certiorari

and that the breach of that right deprived her of due process.” Steele, 518 F.3d at

988. We concluded “[t]he alleged breach of the provisions of our plan and Rule 44(a)

did not deprive [the petitioner] of due process of law and did not give rise to a claim

for ineffective representation of counsel.” Id. In light of Steele, the district court

properly rejected Walker’s constitutional claim.

b. Statutory Claim

Walker also asserts her “conviction was obtained in violation of her right to

effective assistance of appellate counsel, as guaranteed by . . . Federal Rule of

Criminal Procedure 44(a); 18 U.S.C. § 3006A; Eighth Circuit Plan to Implement the

7 8

Criminal Justice Act of 1964 . . . ; and Eight [sic] Circuit caselaw.” In particular,

Walker relies on Wilson v. United States, 554 F.2d 893, 894-95 (8th Cir. 1977) (per

curiam), in which this court stated “[f]ailure to advise a defendant of his right to

petition for certiorari in the Supreme Court violates his right to effective assistance

Rule 44(a) provides, “A defendant who is unable to obtain counsel is entitled 7

to have counsel appointed to represent the defendant at every stage of the proceeding

from initial appearance through appeal.”

Section 3006A(c) similarly provides, “A person for whom counsel is 8

appointed shall be represented at every stage of the proceedings from his initial

appearance before the United States magistrate judge or the court through appeal,

including ancillary matters appropriate to the proceedings.” 

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of counsel as guaranteed by Fed. R. Crim. P. 44(a) and the Criminal Justice Act of

1964, 18 U.S.C. s 3006A . . . and violates Section V of the Eighth Circuit Plan to

Implement the Criminal Justice Act of 1964.”

Walker’s original, amended, and second amended § 2255 motions only raised

constitutional ineffective-assistance claims. On appeal, Walker concedesshe did not

claim a statutory right to effective assistance of counsel or even mention Rule 44(a),

18 U.S.C. § 3006A, or the Eighth Circuit plan until “her response to the government’s

reply brief” on her motion. 

 

In asking the district court to reconsider its denial of her § 2255 motion,

Walker asserted the district court “failed to rule whether Walker was entitled to the

effective assistance of counsel under 18 U.S.C. § 3006A(a), (b), (c), and (d)(7),

Federal Rule of Criminal Procedure 44(a), and the Eighth Circuit plan.” Yet Walker

again essentially framed her ineffective-assistance claim in constitutional terms. 

Walker proposed, “With these laws and rules in place to secure a defendant’s right

to effective assistance of counsel on appeal as guaranteed by the Sixth Amendment,

these rules in conjunction with the Sixth Amendment require counsel to perform

effectively once the assistance is undertaken.” (Emphasis added). Relying on our

analysis in Steele discussed above, the district court concluded Walker failed “to

advance a basis for section 2255 relief.” 

On appeal, Walker asserts for the first time that we can reverse her sentence

based solely on the cited statute and rules even in the absence of a constitutional right

to counsel to file a certiorari petition. As Walker sees it, she “was statutorily entitled

to effective assistance of counsel during the writ of certiorari phase of her appeal”

once her counsel took her case and undertook to file a certiorari petition on her

behalf. 

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But Walker acknowledges no statute or other legal authority required her

counsel to file a petition for a writ of certiorari. See Steele, 518 F.3d at 988. And

Walker has failed to articulate any violation of a statute or rule in her case that would

provide grounds for sentencing relief under § 2255. Absent such a violation,

Walker’s statutory claim, even if preserved, is beyond the scope of § 2255(a). 

Even if we were to assume, as Walker now proposes, that she had a statutory

right to effective assistance of counsel to file a certiorari petition despite the lack of

a constitutional right, we could not accept her claimthat “[b]y failing to raise Alleyne,

[her counsel’s] performance fell below an objective standard of reasonableness”

under Strickland v. Washington, 466 U.S. 668 (1984). The Supreme Court did not

issue its decision in Alleyne until more than six months after it denied Walker’s

petition on December 10, 2012. See Alleyne, 570 U.S. at ___, 133 S. Ct. at 2155. 

For the entire duration of Walker’s criminal case and direct review, Harris controlled. 

Id. As we have repeatedly held, “counsel’s failure to anticipate a change in the law

does not establish that counsel’s performance was deficient.” Anderson v. United

States, 762 F.3d 787, 794 (8th Cir. 2014); accord Brown v. United States, 311 F.3d

875, 878 (8th Cir. 2002) (“[C]ounsel’s decision not to raise an issue unsupported by

then-existing precedent d[oes] not constitute ineffective assistance.”). 

 

B. Ineffective Assistance of Counsel - Plea Advice

The Sixth Amendment guarantees the right to effective counsel during plea

negotiations and the entry of a guilty plea. See Missouri v. Frye, 566 U.S. ___, ___,

132 S. Ct. 1399, 1405 (2012). “Where, as here, a defendant isrepresented by counsel

during the plea process and enters h[er] plea upon the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice ‘was within the range

of competence demanded of attorneys in criminal cases.’” Hill v. Lockhart, 474 U.S.

52, 56 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).

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Walker argues her plea was involuntary because her “[t]rial counsel

inaccurately advised [her] as to the sentencing consequences of her plea, the length

of her sentence, and her eligibility for safety valve.” According to Walker, email

discussions between Walker and her counsel and the negotiations between her

counsel and the government show that her counsel and the government

(1) “represented to Walker she would fall within a sentencing range of 70-87

months,” (2) “discounted the 10-year statutory sentence as something that would

never come into play,” and (3) unfairly misled Walker “to believe her sentence would

be much lighter than the sentence she ultimately received.” Walker’s claims are

rebutted by the record. 

As noted by the district court, in her written plea agreement, Walker expressly

stated she understood she faced a mandatory minimum of at least five years and a

maximum sentence of up to forty years unless the district court found she qualified

for safety-valve relief—which depended on the district court finding Walker was

truthful in her proffer despite the government’s unwavering opposition. Walker

further understood the government planned to argue at sentencing she was

responsible for a greater quantity of drugs, and if the district court so found, Walker

would face a ten-year mandatory minimum. In the written plea and her plea

testimony, Walker stated no one had predicted or promised she would receive a

particular sentence, much less one that was lower than the applicable mandatory

minimum. 

Walker’s email evidence is not to the contrary. Walker isolates a few words

she proposes promised her a particular sentence, but Walker’s counsel specifically

informed Walker more than once he did not know what her sentence would be,

particularly given what counsel described as the district court’s “abundance of

discretion” regarding the safety valve. In general, Walker’s counsel provided detailed

and accurate information and advice about the terms and consequences of Walker’s

plea. 

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To the extent Walker’s counsel made any error in estimating the sentencing

range Walker might face under the Guidelines, the mistake did not render her plea

involuntary under the circumstances of this case. See United States v. Quiroga, 554

F.3d 1150, 1155 (8th Cir. 2009). “[I]naccurate advice of counsel about the

sentencing guidelines or likely punishment does not render involuntary a defendant’s

decision to plead guilty, so long as the defendant is informed of the maximum

possible sentence permitted by statute and the court’s ability to sentence within that

range.” Id. Walker’s plea was voluntary.

C. Ineffective Assistance of Counsel - Safety Valve

1. Sentencing

Walker next argues her counsel was constitutionally ineffective for failing to

persuade the district court Walker qualified for safety-valve relief under 18 U.S.C.

§ 3553(f) and U.S.S.G. § 5C1.2. In an effort to reduce her sentence under

§ 3553(f)(1)-(5), Walker attempted to make a truthful proffer statement to the

government regarding the information and evidence she had about the conspiracy. 

See id. § 3553(f)(5). The proffer session ended early when, as Walker describes it,

“one of the government agents was unprofessional.” Walker’s counsel submitted a

proffer letter to the district court, and in arguing for safety-valve relief in Walker’s

sentencing memorandum, explained the contentious circumstances of the proffer

interview. In its sentencing memorandum, the government challenged the truth of

Walker’s proffer and averred the interview ended because the officers believed

Walker was lying. 

At sentencing, the district court, without mentioning the circumstances of

Walker’s proffer, found Walker did not prove she had “truthfully provided

information regarding her offense, at least in complete detail.” That finding made

Walker ineligible for safety-valve relief. See 18 U.S.C. § 3353(f)(5). 

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Walker complains her counsel “failed to fully explain the agent’s conduct

during the proffer session” to the district court. Walker again fails to establish a

constitutional violation. Even if a fuller explanation would have been ofsome value,

any failure of persuasion on this point is far from an error “so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Strickland, 466 U.S. at 687.

2. Appeal

Nor is Walker able to show her counsel was unconstitutionally ineffective for

failing “to appeal the district court’s erroneous finding that Walker did not qualify for

a safety valve.” “Our review is particularly deferential when reviewing a claim that

appellate counsel failed to raise an additional issue on direct appeal.” Charboneau

v. United States, 702 F.3d 1132, 1136 (8th Cir. 2013). We “must indulge a strong

presumption,” Strickland, 466 U.S. at 689, “that counsel has rendered adequate

assistance and made all significant decisions for tactical reasons rather than through

neglect,” Barnes v. Hammer, 765 F.3d 810, 814 (8th Cir. 2014).

Walker’s counsel effectively raised two issues on appeal but did not appeal the

district court’s safety-valve finding. By declaration, Walker’s counsel explained he

“did not include the safety valve issue in the appeal because [he] did not believe there

was enough evidence in the record for the appellate court to find that the district

court was clearly erroneous in denying safety valve.” Walker challengesthat tactical

decision. 

“The Sixth Amendment does not require that counsel raise every colorable or

non-frivolous claim on appeal.” New v. United States, 652 F.3d 949, 953 (8th Cir.

2011).

Where, as here, “appellate counsel competently asserts some claims on

a defendant’s behalf, it is difficult to sustain a[n] ineffective assistance

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claimbased on allegations that counsel was deficient for failing to assert

some other claims.” This is because one of appellate counsel’s

functions is to winnow the available arguments and exercise judgment

about which are most likely to succeed on appeal.

Gray v. Norman, 739 F.3d 1113, 1117-18 (8th Cir. 2014) (alteration in original)

(quoting Link v. Luebbers, 469 F.3d 1197, 1205 (8th Cir. 2006)). It is difficult to

overcome Strickland’s presumption ofreasonableness unlessthe “‘ignored issues are

clearly stronger than those presented.’” Id. at 1118 (quoting Link, 469 F.3d at 1205). 

Although Walker maintains her counsel should have raised the safety-valve

issue on appeal, she neither comparesthe strength of that claim to those appeal issues

her counsel asserted nor otherwise casts doubt on her counsel’s strategic decision not

to raise it. Without evidence to the contrary, we presume Walker’s counsel’s decision

not to argue the district court’s safety-valve finding was clearly erroneous “‘was an

exercise of sound appellate strategy.’” United States v. Brown, 528 F.3d 1030, 1033

(8th Cir. 2008) (quoting Roe v. Delo, 160 F.3d 416, 418 (8th Cir. 1998)). 

D. Evidentiary Hearing

Walker last suggests the district court abused its discretion in denying her an

evidentiary hearing “because the claims of ineffective assistance of counsel deal with

fundamental choicesthat could have only been made by Walker” and a hearing would

have allowed her to question her counsel regarding her ineffective-assistance claims. 

“We review a district court’s decision to deny an evidentiary hearing for abuse of

discretion; however, we are obligated ‘to look behind that discretionary decision to

the court’s rejection of the claim on its merits, which is a legal conclusion that we

review de novo.’” Thomas, 737 F.3d at 1206 (quoting Noe v. United States, 601 F.3d

784, 792 (8th Cir. 2010)).

Section 2255(b) requires an evidentiary hearing “[u]nless the motion and the

files and records of the case conclusively show that the prisoner is entitled to no

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relief.” No hearing is necessary “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 contradicted by the record, inherently incredible, or conclusions

rather than statements of fact.” Sanders v. United States, 341 F.3d 720, 722 (8th Cir.

2003).

Evaluating Walker’s specific bases for requesting an evidentiary hearing, the

district court decided “[t]he files and records of this case conclusively show Walker

is not entitled to relief.” The district court further found “Walker fail[ed] to identify

any issue where further factual development would be material to resolution of the

issues in this case.” After careful review of the record, we detect no abuse of

discretion in the district court’s decision to deny an evidentiary hearing. See

Tinajero-Ortiz, 635 F.3d at 1106.

III. CONCLUSION

We affirm the judgment of the district court. 

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