United States District Court, D. Minnesota
Jeffrey S. Paulsen, Assistant United States Attorney, Counsel for Plaintiff.
Peter Allan, Sr., pro se.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Petitioner Peter Allan, Sr.'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. 129] and Petitioner's pro se Motion for Appointment of Counsel [Docket No. 137].
On October 22, 1999, Petitioner Peter Allan, Sr. pled guilty to Distribution of a Controlled Substance, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(D)(2), and Distribution of a Controlled Substance with the Intent to Commit a Crime of Violence, in violation of 21 U.S.C. § 841(a)(1) & (b)(7)(A). In 2000, this Court sentenced Petitioner to 108 months in prison and 3 years of supervised release. Petitioner did not appeal this sentence.
Petitioner was released from prison in 2007. While on supervised release, Petitioner was civilly committed by the State of Minnesota after being designated as a "sexually dangerous person" and a "sexual psychotic personality." ([Docket No. 67] Ex. A, Order for Comittment at 74.) That determination was based on evidence indicating that Petitioner had engaged in a pattern of drugging and sexually assaulting women.
On July 8, 2009, Petitioner filed a motion to have his supervised release revoked. [Docket No. 70] The Court granted Petitioner's motion and ordered that Petitioner's remaining 24-month sentence be served "consecutively to an indefinite term of Defendant's civil commitment." [Docket No. 88] On June 20, 2012 Petitioner filed a Motion to Set Aside Plea Pursuant to Rule 11 [Docket No. 108] and a Motion to Recuse [Docket No. 109]. On July 31, 2012, both of these motions were denied. [Docket No. 117]
On May 22, 2014, Allan filed the current pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. [Docket No. 129]
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. Bousley v. United States , 523 U.S. 614, 622 (1998).
A petitioner is entitled to an evidentiary hearing on a § 2255 motion, "[u]nless the motion and the files of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).
[A] petition can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, ...