                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 12-1971
                          ___________________________

                                     Brian Jeffries,

                        lllllllllllllllllllllPetitioner - Appellant,

                                            v.

                              United States of America,

                        lllllllllllllllllllllRespondent - Appellee.
                                        ____________

                      Appeal from United States District Court
                    for the District of South Dakota - Rapid City
                                    ____________

                              Submitted: March 13, 2013
                                Filed: August 6, 2013
                                   ____________

Before WOLLMAN, BYE, and COLLOTON, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

      Brian Jeffries pleaded guilty to one count of abusive sexual contact with a child,
in violation of 18 U.S.C. §§ 2244(a)(5), 2246(3), and 1153. The district court1
sentenced Jeffries to 400 months’ imprisonment. On appeal, this court rejected

      1
        The Honorable Andrew W. Bogue, late a United States District Judge for the
District of South Dakota.
Jeffries’s challenge to the conviction based on an alleged breach of the plea agreement
by the government, but remanded for resentencing on a different issue. United States
v. Jeffries (Jeffries I), 569 F.3d 873, 876-77 (8th Cir. 2009). The district court
sentenced Jeffries to 360 months’ imprisonment on remand. Jeffries again appealed,
challenging the reasonableness of his sentence, and this court affirmed. United States
v. Jeffries (Jeffries II), 615 F.3d 909, 912 (8th Cir. 2010).

      Jeffries then moved to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, arguing that he was denied his Sixth Amendment right to effective assistance
of counsel during his initial sentencing. The district court2 denied relief without a
hearing, and granted a certificate of appealability on the question whether Jeffries
received ineffective assistance of counsel when his attorney failed to object to the
government’s alleged breach of the plea agreement. For the reasons that follow, we
affirm the district court’s denial of Jeffries’s § 2255 motion.

                                          I.

       A grand jury charged Jeffries with two counts of aggravated sexual abuse of
individuals between the ages of twelve and sixteen. Pursuant to a written plea
agreement, Jeffries pleaded guilty to one count of abusive sexual contact with a child.
The government agreed to recommend that the court grant an adjustment for
acceptance of responsibility for the crime, “unless there [was] significant evidence
disclosed in the presentence investigation to the contrary.” The agreement also
provided that the recommendations were “conditioned upon the defendant’s full,
complete, and truthful disclosure to the United States Probation Office.” The
government’s recommendations and the parties’ stipulations were not binding on the
district court. Fed. R. Crim. P. 11(c)(1)(B). If accepted, however, the


      2
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

                                         -2-
recommendations and stipulations outlined in the plea agreement would have resulted
in an advisory guideline range of 210 to 262 months’ imprisonment.

       The agreed-upon factual basis set forth in the plea agreement stated that Jeffries
“did knowingly and intentionally engage in sexual contact by force” with the underage
victim. Before his plea hearing, however, Jeffries sent a letter to the district court to
inform the judge of “the actual facts” in his case. In the letter, Jeffries denied using
force and insisted that his relationship with the victim was consensual. He claimed
that he “was scared into this plea agreement” and said he had lied at first. When the
court questioned Jeffries about the letter during his plea hearing, Jeffries agreed with
the factual basis in the plea agreement and asked the court to disregard his letter. The
district court accepted Jeffries’s plea and scheduled his sentencing hearing. After the
plea hearing but prior to sentencing, Jeffries sent a similar letter to the probation
office. In that letter and in an interview with a probation officer, Jeffries again
asserted that his relationship with the victim was consensual.

        Based on the letters and the interview, the probation office recommended
against a reduction for acceptance of responsibility in the presentence report furnished
to the court. Jeffries objected to the recommendation. At sentencing, the court asked
the parties for their positions on the issue. Jeffries’s counsel explained that Jeffries
did not intend by his letters “in any way [to] step back from the plea that he’s made.”
The government stated its “hands are somewhat tied, given the plea agreement,”
because “[t]he plea agreement states very clearly that the United States agrees to give
acceptance of responsibility.” The government expressed its belief, however, “that
the Court is on firm ground in not giving acceptance,” based on Jeffries’s claims in
his letters and interview that the sex was consensual. But citing the plea agreement,
the government suggested that it could not argue against the acceptance-of-
responsibility reduction “without some more significant evidence.”




                                          -3-
        The district court concluded that since his guilty plea, Jeffries had “denied his
culpability for the crime to which he pled guilty,” and had “failed to
demonstrate . . . his intent for acceptance of responsibility.” The court pointed to the
inconsistencies between the factual basis set forth in Jeffries’s plea agreement and his
letters to the court and to the probation office. The court described Jeffries’s positions
regarding his culpability for forcible sexual contact as “miles apart,” and said “the
record doesn’t support the defendant’s objection all that well.” The court then
overruled Jeffries’s objection and declined to award a reduction for acceptance of
responsibility under USSG § 3E1.1. The court thus adopted the presentence report’s
recommended guideline range of 360 months’ to life imprisonment, and sentenced
Jeffries to 400 months’ imprisonment.

        On direct appeal, Jeffries argued that the government breached the plea
agreement by failing to recommend an acceptance-of-responsibility reduction.
Jeffries I, 569 F.3d at 874. Because Jeffries did not object to the government’s
statements during sentencing, this court reviewed his claim for plain error. Id. at 875;
see Fed. R. Crim. P. 52(b). This court concluded that any breach of the plea
agreement was neither clear nor obvious, and rejected Jeffries’s claim. Jeffries I, 569
F.3d at 876. We also noted that it was unlikely that any error affected the district
court’s decision to deny a reduction for acceptance of responsibility. Id. at 876 n.1.
On remand for resentencing on a different issue, the district court sentenced Jeffries
to a term of 360 months’ imprisonment, which this court later affirmed as reasonable.
Jeffries II, 615 F.3d at 912.

      Jeffries filed his pro se § 2255 motion on April 7, 2011. The case was referred
to a magistrate judge, who recommended that the district court hold an evidentiary
hearing on Jeffries’s ineffective assistance claim. In an “Order Adopting in Part and
Rejecting in Part Report and Recommendation and Denying Motion,” dated December
27, 2011, the district court denied relief without an evidentiary hearing. The court
concluded that even if the government did breach the plea agreement, Jeffries did not

                                           -4-
show that he was prejudiced by counsel’s failure to object to the alleged breach.
Because Jeffries repeatedly denied responsibility for his crime, the court reasoned,
there was no reasonable probability that “but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v. Washington, 466
U.S. 668, 694 (1984). In the same order, the district court granted a certificate of
appealability on the ineffective assistance claim. Jeffries filed a notice of appeal,
which was docketed on April 13, 2012.

                                          II.

      Before addressing the merits of Jeffries’s claim, we must consider whether the
appeal is timely such that we have jurisdiction. Determining the timeliness of the
appeal requires analysis of the separate document requirement of Federal Rule of Civil
Procedure 58(a), as applied to the circumstances of this case.

       Rule 58(a) requires that “[e]very judgment . . . be set out in a separate
document.” The entry of a judgment triggers the running of the time for appeal. Fed.
R. App. P. 4(a). In cases where the United States is a party, the notice of appeal must
be filed within sixty days after entry of the judgment or order appealed from. Fed. R.
App. P. 4(a)(1)(B). If the separate document requirement applies but is not satisfied,
then the order is deemed “entered” 150 days after the dispositive order was entered
on the civil docket. Fed. R. App. P. 4(a)(7)(A)(ii); Fed. R. Civ. P. 58(c)(2); see
Outlaw v. Airtech Air Conditioning & Heating, Inc., 412 F.3d 156, 163 (D.C. Cir.
2005).

       Assuming that Rule 58 applies in § 2255 proceedings, the timeliness of
Jeffries’s notice of appeal turns on whether the district court’s order satisfied the
separate document requirement. If the order filed December 27, 2011, was a separate
document under Rule 58(a), then the notice filed April 13, 2012, was untimely. But



                                         -5-
if the district court never set out the order in a separate document, then the order was
deemed entered on May 25, 2012, and the appeal is timely.

        We conclude that Rule 58(a) applies in appeals from § 2255 proceedings. This
court has said, as a general matter, that the Federal Rules of Civil Procedure apply in
§ 2255 proceedings. United States v. Harrison, 469 F.3d 1216, 1217 (8th Cir. 2006);
United States v. Hernandez, 436 F.3d 851, 856-57 (8th Cir. 2006). That statement is
subject to an exception where a civil rule is inconsistent with the statute, see Rule 12,
Rules Governing Section 2255 Proceedings for the United States District Courts, but
we see nothing in § 2255 that would make Rule 58 inapplicable, and the relevant rules
tell the courts to apply the separate document requirement. Rule 11 of the Section
2255 Rules directs that the time for appeal from an order entered on a § 2255 motion
is provided in Federal Rule of Appellate Procedure 4(a). Rule 4(a) requires that when
the United States is a party, a notice of appeal be filed within sixty days after “entry
of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(B). And a judgment
or order is entered for purposes of Rule 4(a) when it is entered in compliance with
Rules 58 and 79(a) of the Federal Rules of Civil Procedure. Fed. R. App. P. 4(a)(7).
So Rule 58 governs when an order is entered—and hence when the time for noticing
an appeal begins—in a § 2255 proceeding. Accord United States v. Fiorelli, 337 F.3d
282, 285-87 (3d Cir. 2003); United States v. Johnson, 254 F.3d 279, 283-84 (D.C. Cir.
2001); Sassoon v. United States, 549 F.2d 983, 984-85 (5th Cir. 1977); see also
United States v. Batton, No. 13-8017, 2013 WL 2435357, at *1 (10th Cir. June 5,
2013); United States v. Smith, No. 00-6126, 2000 WL 935425, at *1 n.* (4th Cir. July
10, 2000); Sims v. United States, No. 98-1228, 1999 WL 1000855, at *3 (6th Cir. Oct.
29, 1999); United States v. Hogle, No. 96-17336, 1997 WL 599401, at *1 (9th Cir.
Sept. 22, 1997).

       Of the courts of appeals to consider this question, only the Second Circuit has
reached a contrary conclusion. In Williams v. United States, 984 F.2d 28, 29-31 (2d
Cir. 1993), the court determined that a motion under § 2255 is not subject to Rule 58,

                                          -6-
because it “‘is a further step in the movant’s criminal case and not a separate civil
action.’” Id. at 30 (quoting Section 2255 advisory committee notes to Rule 1). The
court reasoned that Congress did not contemplate the entry of judgment upon the
disposition of a § 2255 motion, relying on then-paragraph six of § 2255, which states
that “[a]n appeal may be taken to the court of appeals from the order entered on the
motion as from a final judgment on application for a writ of habeas corpus.” Id.
(citing 28 U.S.C. § 2255, para. 6, now codified at 28 U.S.C. § 2255(d)). This
paragraph, however, merely equates an order with a final judgment; it does not speak
to whether the order or judgment must be entered in a separate document. For the
reasons discussed, we conclude that an order denying a § 2255 motion is not entered
until it is set out in a separate document, or deemed entered for lack of a separate
document.

       So when was the district court’s order denying the § 2255 motion entered? We
have treated an order adopting a report and recommendation, without more, as a
“judgment” for the purposes of Rule 58. Mason v. Groose, 942 F.2d 515, 516 (8th
Cir. 1991). But “at some point, the inclusion of legal reasoning and authority makes
an order into a combined decision and order” that is insufficient to constitute a
separate document under Rule 58(a). Kidd v. Dist. of Columbia, 206 F.3d 35, 39
(D.C. Cir. 2000) (internal quotation omitted). While a document titled “order” rather
than “judgment” can still satisfy the separate document requirement, Mason, 942 F.2d
at 516, an opinion that contains a substantial discussion of the law and the facts does
not. See Mitchell v. State of Idaho, 814 F.2d 1404, 1405 (9th Cir. 1987) (per curiam);
United States v. Deltoro-Aguilera, 252 F.R.D. 545, 546 (D. Neb. 2008).

      The district court’s order of December 27, 2011, was replete with legal analysis.
The order discussed the facts and detailed the reasons for the court’s decision. The
language dismissing Jeffries’s § 2255 motion was included within the order. It was
therefore not a “separate document” under Rule 58. See Sanders v. Clemco Indus.,
862 F.2d 161, 166 (8th Cir. 1988).

                                         -7-
       Because no separate document was filed in this case, judgment is considered
entered on May 25, 2012—150 days after the filing of the order on December 27,
2011. Fed. R. App. P. 4(a)(7)(a)(ii). Jeffries had sixty days from May 25 to file his
notice of appeal. 28 U.S.C. § 2107(b). Jeffries’s notice of appeal, docketed on April
13, was actually premature. But the failure of the district court to set forth an order
on a separate document “does not affect the validity of an appeal from that judgment
or order,” Fed. R. App. P. 4(a)(7)(B), so the premature notice of appeal is effective in
relation to the district court’s order of December 27, 2011. Chambers v. City of
Fordyce, 508 F.3d 878, 881 (8th Cir. 2007) (per curiam). Accordingly, we have
jurisdiction to consider this appeal.

                                          III.

       On the merits, Jeffries argues that the district court erred in denying him an
evidentiary hearing on his ineffective assistance claim. A petitioner is entitled to an
evidentiary hearing on a § 2255 motion “[u]nless the motion and the files and records
of the case conclusively show that [he] is entitled to no relief.” 28 U.S.C. § 2255(b).
We review the district court’s decision to resolve a § 2255 motion without a hearing
for abuse of discretion, although “review of the determination that no hearing was
required obligates us 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.” New
v. United States, 652 F.3d 949, 954 (8th Cir. 2011) (internal quotation omitted). To
determine whether a hearing is required, we must review the merits of Jeffries’s
ineffective assistance of counsel claim. Noe v. United States, 601 F.3d 784, 792 (8th
Cir. 2010).

      A defendant alleging a violation of the Sixth Amendment right to counsel must
show both that counsel’s performance was deficient and that the deficiency prejudiced
the defendant. Strickland, 466 U.S. at 687. To show prejudice, Jeffries must
demonstrate a reasonable probability that his sentence would have been different but

                                          -8-
for the deficient performance. Puckett v. United States, 556 U.S. 129, 142 n.4 (2009).
A reasonable probability “is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Because both prongs of Strickland must be
satisfied for a defendant to succeed on an ineffective assistance claim, we need not
“address both components of the inquiry if the defendant makes an insufficient
showing on one.” Id. at 697.

       Jeffries argues that counsel failed to object to the government’s breach of the
plea agreement during his sentencing hearing. Jeffries first contends that if counsel
had objected at sentencing, then the government would have recommended that the
court grant the reduction. He claims there is a reasonable probability that the district
court would have granted the reduction if the government had so recommended, and
that the reduction would have resulted in a shorter term of imprisonment. Jeffries
argues in the alternative that if counsel had objected and preserved the issue for
appeal, then there is a reasonable probability that this court would have vacated and
remanded for resentencing before a different judge. And he claims it is reasonably
likely that the government would have recommended a reduction before that new
judge, and the new judge would have sentenced him within a lower advisory guideline
range.

       The government defends the professional competence of Jeffries’s counsel,
emphasizing that counsel reasonably could have concluded that the government had
not breached the plea agreement in light of Jeffries’s untruthful statements to the
probation office. The government also contends that Jeffries cannot establish
prejudice because his own conduct—not counsel’s failure to object—led the district
court to deny the acceptance-of-responsibility reduction.

      The district court rejected Jeffries’s claim of ineffective assistance of counsel
without a hearing, and the record is not developed concerning counsel’s
contemporaneous rationale for the conduct Jeffries now challenges. While we might

                                          -9-
be able to assess the reasonableness of counsel’s performance without inquiry into his
thought processes, see Paul, 534 F.3d at 837-38, it is unnecessary to do so, because
the record shows conclusively that Jeffries did not suffer prejudice.

       Jeffries argued on direct appeal that the government breached the plea
agreement by failing to recommend an acceptance-of-responsibility reduction.
Jeffries I, 569 F.3d at 874. A panel of this court concluded that there was no obvious
breach, and then added:

      It is also unlikely that any error affected the district court’s decision to
      deny a reduction based on an acceptance of responsibility. The district
      court concluded that Jeffries’ objection to the PSR’s failure to credit him
      with acceptance of responsibility was not well supported and noted that
      “[s]ince his guilty plea, the defendant has denied his culpability for the
      crime to which he pled guilty and has tried to present a picture to this
      Court of a consensual sexual encounter.”

Id. at 876 n.1.

       For similar reasons, we conclude that Jeffries suffered no prejudice from his
counsel’s failure to object to the government’s comments at sentencing. Even giving
Jeffries the full benefit of the stipulation, the prosecution was not required to object
to the probation office’s recommendation or to give an enthusiastic endorsement of
a downward adjustment. United States v. Has No Horses, 261 F.3d 744, 750 (8th Cir.
2001). In view of the judge’s comments at sentencing, it is unlikely that he would
have been moved by a tepid statement by the prosecutor conforming strictly to the
stipulation. If the case had been reassigned to another judge for resentencing after a
successful appeal, see Santobello v. New York, 404 U.S. 257, 263 (1971), there is
likewise no reasonable probability that a new judge would have assessed the matter
differently. Jeffries’s attempts to deny responsibility—both before and after entering
a plea, in correspondence and in a personal interview—were plain to see. Indeed, the


                                         -10-
most noteworthy aspect of the government’s conduct at sentencing may not be the
alleged breach, but the puzzling insistence of the prosecutor (perhaps acting in an
abundance of caution) that more significant evidence was required to justify
abandoning the stipulation. If the hypothetical new sentencing court were to be
influenced by advice, then the evaluation of the neutral probation office was more
likely to hold sway than an unenthusiastic recommendation of a prosecutor who was
bound by an agreement reached before Jeffries engaged in the offending conduct.

      For these reasons, even assuming that Jeffries could show that his counsel’s
performance at sentencing was deficient, he has not adequately alleged that he was
prejudiced. The district court thus did not err in declining to hold an evidentiary
hearing on Jeffries’s § 2255 motion. See Hill v. Lockhart, 474 U.S. 52, 60 (1985).

                                 *       *      *

      The judgment of the district court is affirmed.
                     ______________________________




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