Clifford B. Wardlaw, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 404 United States Courthouse, 316 North Robert Street, Suite 404, St. Paul, MN 55101, for plaintiff.
Robin Lynn Bourgeois, Reg. No. 14968-041, USP, Post Office Box 1000, Marion, IL 62959, pro se defendant.
MEMORANDUM OPINION AND ORDER
JOHN R. TUNHEIM, District Judge.
Defendant Robin Lynn Bourgeois pled guilty to travel with the intent to engage in illicit sexual conduct and is currently serving a sentence of 200 months imprisonment, followed by a supervised release term of ten years. Bourgeois has filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel. He also moves to amend his § 2255 petition and for other relief. For the reasons discussed below, the Court will deny Bourgeois' motions.
On December 1, 2010, Bourgeois pled guilty to a charge of interstate travel with intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b). (Docket Nos. 57, 58.) As part of the plea agreement, Bourgeois acknowledged that he would be required pay restitution and waived his appeal rights should the Court impose a sentence of 200 months or less. (Docket No. 60.) The plea agreement also acknowledged that the parties had differing views on the appropriate guideline range but stated that this disagreement was moot because the plea agreement contemplated a guilty plea pursuant to Fed. R. Crim. P. 11(c)(1)(C). ( Id. )
At a sentencing hearing on April 11, 2011, the Court adopted the sentence jointly recommended by both parties and sentenced Bourgeois to 200 months imprisonment and ten years of supervised release. ( See Docket No. 70.) The Court held the issue of restitution open. ( Id. ) On November 2, 2012, the Court amended the judgment to include restitution in the amount of $5, 000.28. (Docket No. 95.)
On April 26, 2012, Bourgeois moved for relief under § 2255 to vacate, set aside, or correct his sentence, alleging that he was denied effective assistance of counsel because his attorney (1) failed to challenge the reliability of the affidavit which provided probable cause for a search warrant and (2) failed to object to a ten year term of supervised release. (Docket No. 77.) That same day, he also moved for leave to amend his petition, for discovery, and for an evidentiary hearing. (Docket Nos. 78, 80, 81.)
Bourgeois now claims that his § 2255 petition filed on April 26 was "wholly frivolous" and that he had been deceived by a "law clerk" in the prison law library into thinking that the petition had merit. Accordingly, on November 26, 2012, and December 18, 2012, Bourgeois requested permission to amend his original § 2255 petition. (Docket Nos. 98, 100.) On March 25, 2013, he filed a "motion for injunction/restraining order" requesting that the Court's order of restitution be set aside. (Docket No. 108.) He has also filed numerous other motions upon which this Court has already ruled, as well as various legal briefs.
I. STANDARD OF REVIEW
A prisoner may file a motion to vacate, set aside, or correct a sentence imposed by a federal district court if "the sentence was imposed in violation of the Constitution or laws of the United States, or... the court was without jurisdiction to impose such sentence, or... the sentence was in excess of the maximum authorized by law, or [the sentence] is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Relief under 28 U.S.C. § 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." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
II. INITIAL § 2255 PETITION
Bourgeois' initial § 2255 petition was based on claims of ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, Bourgeois "must show that (1) h[is] trial counsel's performance was so deficient as to fall below an objective standard of reasonable competence; and (2) the deficient performance prejudiced [his] defense." Toledo v. United States, 581 F.3d 678, 680 (8th Cir. 2009) (internal quotation marks omitted); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). "Under the first element, there is a strong presumption that counsel's conduct falls within the wide range of professionally reasonable assistance and sound trial strategy." Toledo, 581 F.3d at 680 (internal quotation marks omitted). If the first element is satisfied, "the second ...