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United States v. Delcaro

United States District Court, D. Minnesota

June 12, 2017

United States of America, Plaintiff-Respondent,
v.
Denio Jon Delcaro, Defendant-Petitioner.

          Julie E. Allyn on behalf of Plaintiff-Respondent

          Denio Jon Delcaro, Pro Se

          MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, District Judge

         This matter is before the undersigned United States District Judge on Defendant- Petitioner Denio Jon Delcaro's pro se motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. [Doc. No. 75] The Government opposes Defendant-Petitioner's motion. (Govt.'s Opp'n Mem. [Doc. No. 79].) Based on a review of the file, record and proceedings therein, and for the reasons set forth below, the Court denies the motion.

         I. BACKGROUND

         On August 18, 2014, Defendant-Petitioner was charged in a two-count indictment with one other defendant on drug conspiracy-related charges. (Indictment [Doc. No. 1].) Following a change of plea on February 18, 2015, on August 26, 2015, Defendant- Petitioner was sentenced to 36 months of imprisonment followed by three years of supervised release on a single count of conspiracy to distribute and possess with intent to distribute Oxycodone. (Sentencing J. [Doc. No. 67].)

         Defendant-Petitioner did not file a direct appeal to the Eighth Circuit Court of Appeals, and his conviction became final on September 9, 2015. On October 12, 2016, Defendant-Petitioner filed a motion under 28 U.S.C. § 2255 to set aside, vacate, or correct his sentence. (Pro Se Mot. to Correct under 28 U.S.C. § 2255.)

         II. DISCUSSION

         Under 28 U.S.C. § 2255(a),

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.

         While § 2255 generally affords relief, it is only available in limited circumstances.

         The Eighth Circuit has held that:

[r]elief 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). Petitioner bears the burden of proof as to each ground for relief. Kress v. United States, ...


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