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United States v. Nelson

United States District Court, Eighth Circuit

November 26, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ATINA MARIE NELSON, Defendant.

Lola Velazquez-Aguilu, Assistant United States Attorney, Counsel for Plaintiff.

Ira W. Whitlock, Whitlock Law Office, Counsel for Defendant.

MEMORANDUM OF LAW & ORDER

MICHAEL J. DAVIS, Chief District Judge.

I. INTRODUCTION

This matter is before the Court on Defendant's Motion to Amend Conditions of Sentence. [Docket No. 33]

II. BACKGROUND

On June 30, 2011, Defendant Atina Marie Nelson pled guilty to Count One of the Information, Bank Fraud, in violation of 18 U.S.C. § 1344. On May 30, 2013, the Court sentenced Defendant to 15 months in prison, followed by 5 years supervised release. Defendant did not appeal.

On November 1, 2013, Defendant filed the current Motion to Amend Conditions of Sentence. Defendant's motion states that it is brought pursuant to 28 U.S.C. § 2255.

III. DISCUSSION

A. Standard for Relief under 28 U.S.C. § 2255

28 U.S.C. § 2255(a) provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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 sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
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. A movant may not raise constitutional issues for the first time on collateral review without establishing both cause for the procedural default and actual prejudice resulting from the error.

United States v. Apfel , 97 F.3d 1074, 1076 (8th Cir. 1996) (citation omitted). Alternatively, the procedural default can be excused if the defendant is actually innocent. ...


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