United States District Court, D. Minnesota
John Kokkinen, Assistant United States Attorney, Counsel for Plaintiff/Respondent.
Katherine M. Menendez, Assistant Federal Defender, Counsel for Defendant/Petitioner.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Petitioner Ricardio Dale Smith's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. [Doc. No. 74]
On March 19, 2002, Petitioner pleaded guilty to the charge of felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). [Doc. No. 56] A Presentence Report ("PSR") was prepared detailing Petitioner's criminal history which included four separate violent felonies: (1) a December 30, 1991 conviction in Minnesota for terroristic threats; (2) an August 5, 1992 conviction in Minnesota for third degree assault; (3) a September 8, 1994 conviction in Minnesota for terroristic threats; and (4) an August 10, 1995 conviction in Minnesota for terroristic threats. (PSR ¶¶ 24, 25, 27, and 30). This Court concluded that Petitioner qualified as an Armed Career Criminal under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and sentenced him to the mandatory minimum term of imprisonment of 180 months, to be followed by five years of supervised release. [Doc. No. 60]
On June 27, 2002, Petitioner timely filed a notice of appeal and submitted an Anders brief on whether his guilty plea was knowing and voluntary and whether the sentence imposed was legal. On January 27, 2003, the Eighth Circuit Court of Appeals affirmed this Court's judgment. United States v. Smith, 55 F.Appx. 394 (8th Cir. 2003).
III. HABEAS PETITION
A. Standard for Relief under 28 U.S.C. § 2255
Title 28 United States Code § 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) (citations omitted). Alternatively, the procedural default can be excused if the petitioner is actually innocent. ...