United States District Court, D. Minnesota
Richard Newberry, Esq., United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.
Joseph Paul Young, pro se.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for consideration of Defendant Joseph Paul Young's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [Docket No. 95] (the "2255 Motion"), Young's Motion to Compel Affidavit [Docket No. 101] (the "Motion to Compel"), and Young's Motion for Appointment of Counsel [Docket No. 103] (the "Motion for Counsel"). For the reasons set forth below, Young's motions are denied.
On July 14, 2009, Young was indicted on four counts of bank robbery under 18 U.S.C. § 2113(a). The robberies occurred in Minnesota on September 18, 2007, September 25, 2007, January 26, 2008, and April 16, 2008. Indictment [Docket No. 1]. On June 23, 2011, a jury found Young guilty of all four counts. Verdict [Docket No. 63]. Young had previously pled guilty to a robbery in West Virginia on February 24, 2009, and was found guilty of a series of three robberies in South Dakota on August 10, 2010.
On October 4, 2011, the Court sentenced Young to 220 months of imprisonment and 3 years of supervised release for the Minnesota bank robberies. See Sentencing J. [Docket No. 78] 2-3. Restitution was ordered in the amount of $15, 226. Id. at 5. Young appealed his sentence, and on December 20, 2012, the Eighth Circuit Court of Appeals affirmed. United States v. Young , 701 F.3d 1235 (8th Cir. 2012).
Young now moves the Court under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.
28 U.S.C. § 2255 provides a person in federal custody with a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of his sentence. See United States v. Addonizio , 442 U.S. 178, 185 (1979). A petitioner may raise a constitutional issue in a § 2255 motion that he did not raise on direct appeal, but he can only do so if he demonstrates: "(1) cause for the default and actual prejudice or (2) actual innocence." United States v. Moss , 252 F.3d 993, 1001 (8th Cir. 2001). Also, "[a] petitioner simply cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not." Anderson v. United States , 25 F.3d 704, 706 (8th Cir. 1994).
A. Pre-Indictment Delay
First, Young argues the Government violated his due process rights by delaying the indictment in the Minnesota case for too long after the start of his "inextricably intertwined" cases in South Dakota and West Virginia. 2255 Mot. at 5. Young was indicted in Minnesota nine months after his indictment for related robberies in South Dakota. 2255 Mot. Attach. 1, at 3. Additional indictments in West Virginia and Kentucky were issued one month and seven months after the South Dakota indictment, respectively. Id.
This pre-indictment delay challenge raises a constitutional issue that was not raised on direct appeal, so Young must demonstrate cause for the procedural default and prejudice from the failure to appeal the issue directly. Anderson , 25 F.3d at 706. Young's only attempt to demonstrate cause for failure to raise this issue is that defense counsel "had control of all direct appeal issues." 2255 Mot. at 5. In his reply memorandum and Motion ...