United States District Court, D. Minnesota
Steven L. Schleicher, Assistant United States Attorney, Counsel for Plaintiff-Respondent.
Elio Hernandez, pro se.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Petitioner's Pro Se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. [Docket No. 240]
On July 31, 2008, Petitioner Elio Hernandez pled guilty to Conspiracy to Distribute and Possess with Intent to Distribute 1 Kilogram or More of Heroin and a Detectable Amount of Cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. [Docket No. 169] The statutory minimum term of imprisonment was 120 months and the maximum was life. 21 U.S.C. §841(b)(1)(A). At a contested sentencing hearing, this Court found by a preponderance of the evidence that Hernandez was responsible for at least 30 kilograms of heroin and that he was an organizer or leader of a drug conspiracy which involved 5 or more participants. [Docket No. 205] The Court further found that Hernandez had a Criminal History Category III and a total offense level of 39. This resulted in an advisory sentencing guideline range of 324-405 months. The Court sentenced Hernandez to 360 months imprisonment. [Docket No. 215]
Hernandez appealed his sentence, and the Eighth Circuit Court of Appeals affirmed. United States v. Hernandez, 354 F.Appx. 277, 278 (8th Cir. 2009). The Eighth Circuit's Opinion and Judgment were issued on December 10, 2009, and the Mandate issued on January 4, 2010. [Docket Nos. 236-37] Hernandez did not appeal the Eighth Circuit judgment. On May 2, 2014, he filed the present Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. [Docket No. 240]
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 can demonstrate that he is actually innocent. ...