govinfo:USCOURTS-mnd-0_22-cr-00290-2

UNITED STATES DISTRICT COURT 
DISTRICT OF MINNESOTA 
 
David Green , UNITED STATES ATTORNEY’S OFFICE , 300 South Fourth 
Street, Suite 600, Minneapolis, MN 55415; Katharine T. Buzicky , UNITED 
STATES ATTORNEY’S OFFICE, 316 North Robert Street, Suite 404, St. Paul, 
MN 55101, for Plaintiff. 
 
Keith Haywood , Register No. 47781- 510, FCI  Leavenworth, Federal 
Correctional Institution, Post Office  Box 1000, Leavenworth, KS 66048, pro 
se Defendant. 
 
Defendant Keith Haywood is serving a 100-month sentence in the custody of the 
Bureau of Prisons after he pled guilty to one count of possession with intent to distribute 
a controlled substance under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B).  Defendant’s conviction 
was affirmed by the Eighth Circuit Court of Appeals.  See United States v. Haywood, No. 
24-3048, 2025 WL 1096732 (8
th Cir. Apr. 14, 2025).  Haywood moves to vacate, set aside, 
or correct his sentence under 28 U.S.C. § 2255, alleging ineffective assistance of counsel.  
Because Haywood has failed to meet his burden  under § 2255, the Court will deny the 
motion. 
UNITED STATES OF AMERICA, 
 
 Plaintiff, 
 
v. 
 
KEITH HAYWOOD, 
 
 Defendant. 
 
Criminal No. 22-290 (JRT/DJF)
 
 
 
MEMORANDUM OPINION AND ORDER 
DENYING DEFENDANT’S MOTION TO 
VACATE, SET ASIDE, OR CORRECT 
SENTENCE UNDER 28 U.S.C. § 2255 
 
 
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BACKGROUND 
In 2022, Haywood was charged in a four -count indictment with  being a felon in 
possession of a firearm under 18 U.S.C. §§ 922(g)(1)  and 924(a)(8) (Counts 1– 2), 
possession with intent to distribute a controlled substance under 21 U.S.C.  §§ 841(a)(1) 
and 841(b)(1)(B) (Count 3), and possession of a firearm in furtherance of a drug trafficking 
crime under 18 U.S.C. § 924(c)(1)(A)(i) (Count 4).  (Indictment, Oct. 25, 2022, Docket No. 
6.) 
Haywood hired attorney Erik Newmark to represent  him in 2023.  ( See Notice of 
Appearance, April 11, 2023, Docket No. 28.)  Newmark filed several pre- trial motions on 
Haywood’s behalf.  (See Docket Nos. 36–44.)  Among them, Newmark filed a motion to 
suppress evidence in which he argued that (1) the information in the warrant was stale;  
(2) the warrant lacked probable cause; (3) the search exceeded the scope of the warrant; 
and (4) and that automobile or good -faith exception applied.1  Magistrate Judge Dolce J. 
Foster held a hearing on the motion .  (Min. Entry, Nov. 2, 2023, Docket No. 64.)  The 
Magistrate Judge recommended denying Haywood’s motion .  ( Report & 
Recommendation (“R&R”) at 14, Jan. 5, 2024, Docket No. 73.) 
Newmark requested and obtained four extensions of time to file objections to the 
R&R.  (See Docket Nos. 74–79, 81– 82.)  Newmark’s second, third, and fourth extension 
 
 
1 (See Mot. to Suppress, May 15 , 2023, Docket No. 44; Def.’s Mem. Supp. Mot. to 
Suppress, Sept. 22, 2023, Docket No. 59; Def.’s Post-Hr’g. Mem. Supp. Mot. to Suppress, Nov. 30, 
2023, Docket No. 68.) 
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motions disclosed that the parties were engaging in settlement discussions.  (See Docket 
No. 76, 78, 81.)  On February 27, 2024, the Court granted Newmark’s fourth motion for 
an extension of time, ordering that Haywood’s objections be filed by March 1, 2025.  
(Docket No. 82.)  On February 29, “Defendant . . . advised the Court that this matter ha[d] 
resolved,” and the Court scheduled a change-of-plea hearing.  (See Docket No. 83.) 
On April 5, 2024, the Court held the change-of-plea hearing, and the parties filed  
an executed plea agreement.  (See Docket Nos. 86–88.)  Haywood pled guilty to Count 3 
of the Indictment , which charged him with possession with intent to distribute a 
controlled substance.  (Plea Agreement ¶ 1, Apr. 5, 2024, Docket No. 87.) 
The plea agreement contemplated an offense level of 25 and  a criminal history 
category of IV, yielding a Guidelines range of 84 to 105 months imprisonment.  (Id. ¶ 7(f).)  
Haywood waived the right to appeal his sentence; except, he retained the right to appeal 
a sentence above 105-months imprisonment.  (Id. ¶ 14.) 
Before sentencing, United States Probation and Pretrial Services prepared a 
Presentence Investigation Report (PSR).  (PSR, July 3, 2024, Docket No. 95 .)  The PSR  
calculated Haywood’s offense level to be 25, consistent with the plea agreement.  (Id. 
¶ 22.)  The PSR, however, calculated  Haywood’s criminal history score to be 14, thereby 
yielding a criminal history category of VI, not IV.  (Id. ¶ 41.)  Because Haywood’s criminal 
history category was VI, his Guidelines range was 110 to 137 months imprisonment.  (See 
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id. ¶ 76.)  The PSR further noted that the statutory mandatory minimum term of 
imprisonment is 60 months.  (Id. ¶ 75.) 
Haywood objected to the PSR (Docket No. 92) , and Newmark filed a motion for a 
variance (Docket No. 101) and a motion for downward departure (Docket No. 102)  on 
Haywood’s behalf.  The probation officer determined that, despite Haywood’s objections, 
there was “no impact on the advisory guideline range. ”  (PSR at 95 (Addendum) , July 3, 
2024, Docket No. 95.)  Newmark also  filed a position mem orandum, arguing for an 84-
month sentence.  (Docket No. 100.)  Although the requested sentence was below the 
Guidelines range set forth in the PSR, an 84- month sentence was at the low end of the 
Guidelines range contemplated by the plea agreement .  ( See id. )  The Government  
requested a 100-month sentence.  (Docket No. 103.) 
On August 20, 2024, the Court sentenced Haywood to 100-months imprisonment, 
to be followed by four years of supervised release.  (Sentencing J. , Aug. 20, 2024, Docket 
No. 106.)  Consistent with the PSR, t he Court concluded that the applicable Guidelines 
range was 110 to 137 months, based on a total offense level of 25 and a criminal history 
category of VI.   (Statement of Reasons at 1, Aug. 20, 2024, Docket No. 107.)  The Court 
nevertheless granted Haywood’s motion for a downward departure under U.S.S.G. 
§ 4A1.3, finding that Haywood’s “criminal history score substantially overrepresents his 
criminal history, which results in a two -point reduction in Defendant’s criminal history 
score.”  (Statement of Reasons at 2, 4.)  Haywood appealed, and the Eighth Circuit 
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affirmed, concluding that Haywood had waived his right to appeal because the sentence 
the Court imposed was below the 105-month threshold set forth in the plea agreement.  
Haywood, 2025 WL 1096732, at *1. 
Haywood now moves to vacate his sentence under 28 U.S.C. § 2255 on the grounds 
of ineffective assistance of counsel.2 
DISCUSSION 
I. STANDARD OF REVIEW 
Section 2255 allows a federal prisoner an opportunity to seek post-conviction relief 
on the grounds that “the sentence was imposed in violation of the Constitution or laws of 
the United States, or that the court was without jurisdiction to impose such sent ence, or 
that the sentence was in excess of the maximum authorized by law, or is otherwise 
subject to collateral attack.”  28 U.S.C. § 2255(a).  Relief under § 2255 “is reserved 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.”  Walking Eagle v. United States , 742 F.3d 1079, 1081– 82 (8
th Cir. 
2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).  As the movant, 
Haywood bears the burden to show that he is entitled to relief under § 2255.   Walker v. 
United States, 900 F.3d 1012, 1015 (8th Cir. 2018). 
 
 
2 The Government does not dispute that Haywood’s § 2255 motion is timely. 
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II. INEFFECTIVE ASSISTANCE OF COUNSEL 
A federal prisoner may seek post -conviction relief for ineffective assistance of 
counsel.  The Court evaluates claims of ineffective assistance of counsel brought under 
§ 2255 using the framework established in Strickland v. Washington, 466 U.S. 668 (1984).  
See Bass v. United States , 655 F.3d 758, 760 (8 th Cir. 2011).  Generally, “a showing of 
ineffective assistance of counsel satisfies both cause and prejudice,” but the defendant  
“faces a heavy burden” to demonstrate ineffective assistance.  Apfel, 97 F.3d at 1076.  
Under Strickland, the defendant must first establish that “his attorney’s performance was 
so deficient as to fall outside the range of reasonable professional assistance.”   Morelos 
v. United States , 709 F.3d 1246, 1249– 50 (8 th Cir. 2013).  Second, the defendant must 
show that “he suffered such prejudice stemming from the deficient performance [that] 
there is a reasonable probability the proceeding would have had a different result.”   Id. 
at 1250.  “Failure to establish either prong is fatal to a claim of ineffective assistance.”  Id.  
Further, when considering if counsel’s performance was deficient, the Court “must 
indulge a strong presumption that counsel’ s conduct falls within the wide range of 
reasonable professional assistance.”  Johnson v. United States, 278 F.3d 839, 842 (8th Cir. 
2002) (quoting Strickland, 466 U.S. at 689).3 
 
 
3 In Haywood’s reply brief, he also argues that the prosecutor engaged in prosecutorial 
misconduct.  (Reply Mem. at 5, Oct.6, 2025, Docket No. 143.)  The Court disagrees and finds, after 
careful review of the arguments and the record, that Haywood has not met his burden of showing 
prosecutorial misconduct.  The Court will, therefore, focus its analysis on the thrust of Haywood’s 
claims— ineffective assistance of counsel. 
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Haywood alleges four grounds for ineffective assistance of counsel.  The Court will 
address each ground in turn. 
First, Haywood argues that Newmark was ineffective because he did not file 
objections to the Magistrate Judge’s R&R , which recommended denying his motion to 
suppress.  (Def.’s Mot. to Vacate at 4, Oct. 7, 2024, Docket No. 110.)  In support, Haywood 
submitted writings that he allegedly sent to Newmark in March 2024.  ( Id., Ex. 1.)   The 
Court rejects Haywood’s argument  because it is contradicted by the record.  The 
Magistrate Judge issued the R&R on January 5, 2024.  On March 3, 2024, Haywood sent 
Newmark a letter, requesting that he file an objection.  ( Id., Ex. 1.)  However, three days 
before Haywood’s letter, “Defendant . . . advised the Court that this matter ha[d] [been] 
resolved and requested a change-of-plea hearing.”  (Order, Feb. 29, 2024, Docket No. 83.)  
The Court then scheduled a change-of-plea hearing for April 5, 2024, and the parties filed 
a signed plea agreement on that date.  (See generally Plea Agreement.)  By pleading guilty, 
Haywood “knowingly, willingly, and voluntarily  g[a]ve up the right to have any pending 
motions resolved” and agreed to “withdraw[] any motions previously filed, including but 
not limited to his motion  to suppress evidence obtained by search warrant.”  ( Id. ¶ 3.)  
Because Haywood agreed to withdraw  any pending motions, the Cou rt cannot find that 
Newmark’s failure to file objections constituted ineffective assistance of counsel. 
Second, Haywood asserts that Newmark was ineffective because Newmark failed 
to show Haywood a copy of the PSR before Haywood signed the plea agreement.  (Def.’s 
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Mot. to Vacate at 5.)  This argument fails.  The Federal Rules of Criminal Procedure simply 
require the probation office to “conduct a presentence investigation and submit a report 
to the court before  it imposes [a] sentence[.]”  Fed. R. Crim. P. 32(c)(1)(A) (emphasis 
added).  The probation officer need not submit a presentence investigation report before 
a change-of-plea hearing.  See United States v. Bradin, 535 F.2d 1039, 1040 (8th Cir. 1976) 
(noting that presentence investigation reports, “of course, are not normally available to 
the Court prior to the acceptance of a plea”).  Indeed, t he Court did not request a 
presentence investigation and report until the parties appeared for the change-of-plea 
hearing.  (See Min. Entry, Apr. 5, 2024, Docket No. 86.)  B ecause the probation officer is 
not required to submit a PSR before a change- of-plea hearing, Newmark  was not 
ineffective by failing to provide Haywood with a copy of a PSR before Haywood signed the 
plea agreement. 
Third, Haywood claims that Newmark was ineffective because Newmark allegedly 
stated prior to sentencing “that he would argue for the mandatory minimum ,” but at 
sentencing, Newmark “said nothing about getting the mandatory minimum.”  (Def.’s Mot. 
to Vacate at 7.)  On the record before the Court, the Court finds that Haywood has failed 
to set forth facts sufficient to justify relief under § 2225 on this basis.  By pleading guilty 
to Count 3, Haywood faced a mandatory minimum sentence of 5 years.  See 21 U.S.C. 
§ 841(b)(1)(B); (see also PSR ¶¶ 2, 75).  In both his written and oral arguments, Newmark 
argued in favor of an 84- month sentence, w hich is well below the 110- to-137-month 
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range set forth in the  Guidelines.  Haywood offers nothing more than vague and 
conclusory allegations that Newmark promised to argue in favor of a mandatory minimum 
sentence— allegations which are insufficient to justify  relief under § 2255.  See Hollis v. 
United States , 796 F.2d 1043, 1046 (8 th Cir. 1986)  (noting that “vague and conclusory 
allegations are not sufficient to state a ground for relief under 28 U.S.C. § 2255”).  Even if 
Newmark had represented to Haywood that he would request  mandatory minimum 
sentence, Newmark’s decision to argue in favor of a sentence greater than the mandatory 
minimum— yet significantly less than the low end of the Guidelines range— appears to 
amount to a strategic or tactical decision that is “virtually unchallengeable”  under 
Strickland.  See Hinton v. Alabama, 571 U.S. 263, 275 (2014) (“Under Strickland, ‘strategic 
choices made after thorough investigation of law and facts relevant to plausible options 
are virtually unchallengeable . . . .’” (quoting Strickland, 466 U.S. at 690)).  It is especially 
difficult for the Court to find ineffective assistance of counsel when  the record indicates 
that Newmark’s advocacy resulted in a length of sentence significantly below the 
Guidelines range. 
Fourth, Haywood claims that Newmark violated the Rules of Professional 
Conduct— and was therefore ineffective— by failing to stay in contact  with Haywood 
during the proceedings.  (Def.’s Mot. to Vacate at 8.)  Other than stating that the longest 
period during which Newmark  failed to communicate with Haywood was three months, 
and that Haywood felt as if he “was always left in the dark about court issues because of 
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[Newmark’s] long periods of no contact,” Haywood provides no additional information to 
support this claim.  Haywood’s allegations— without more— are insufficient to show that 
Newmark “was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”  
Strickland, 466 U.S. at 687. 
In sum, Haywood bas es his claim of ineffective assistance of counsel on four 
grounds.  The Court concludes that he has failed to show that “his attorney’s performance 
was so deficient as to fall outside the range of reasonable professional assistance.”  See 
Morelos, 709 F.3d at  1249–50.  The Court further  finds that even if Newmark’s 
performance was deficient, Haywood has failed to show that he suffered prejudice such 
that “there is a reasonable probability the proceeding would have had a different result.”  
See id. at 1250. 
 Accordingly, Haywood has failed to demonstrate that he was denied effective 
assistance of counsel.  The Court will therefore deny him relief under 28 U.S.C. § 2255.
4 
 
 
4 A movant is entitled to an evidentiary hearing on a § 2255 motion unless the “claim is 
inadequate on its face or if the record affirmatively refutes the factual assertions upon which it 
is based.”  Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008).  Because the Court has 
concluded that each argument raised by Haywood in his § 2255 motion is either contradicted by 
the record or  is insufficient to demonstrate ineffective assistance of counsel , an evidentiary 
hearing is not required.  See Engelen v. United States, 68 F.3d 238, 241 (8 th Cir. 1995) (affirming 
denial of evidentiary hearing for § 2255 motion based on ineffective assistance of counsel for 
lack of “credible, non-conclusory evidence”). 
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III. CERTIFICATE OF APPEALABILITY 
The Court may grant a certificate of appealability only where the movant  “has 
made a substantial showing of the denial of a constitutional right.”  28 U.S.C. § 2253(c)(2); 
see also Copeland v. Washington, 232 F.3d 969, 977 (8 th Cir. 2000).  To make such a 
showing, the issues must be debatable among reasonable jurists, a court must be able to 
resolve the issues differently, or the issues must deserve further proceedings.  Flieger v. 
Delo, 16 F.3d 878, 882 –83 (8th Cir. 1994).  The Court concludes that Haywood has not 
shown that reasonable jurists would find the issues raised in Haywood ’s motion 
debatable, that some other court would resolve the issues differently, or that the issues 
deserve further proceedings .  Accordingly, the Court  declines to grant a certificate of 
appealability. 
ORDER 
Based on the foregoing, and all the files, records, and proceedings herein,  IT IS 
HEREBY ORDERED that: 
1. Defendant Keith Haywood’s Motion Under 28 U.S.C. § 2255 to Vacate, Set 
Aside, or Correct Sentence (Docket No. [110]) is DENIED. 
2. No certificate of appealability is issued under 28 U.S.C. § 2253(c). 
LET JUDGMENT BE ENTERED ACCORDINGLY. 
 
DATED:  June 10, 2026      _____/s/ John R. Tunheim ____ 
at Minneapolis, Minnesota. JOHN R. TUNHEIM 
   United States District Judge 
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