United States District Court, D. Minnesota
N. ERICKSEN, UNITED STATES DISTRICT JUDGE
Richard Peterson moved to vacate, set aside, or correct his
sentence. See 28 U.S.C. § 2255 (2012). He also
moved for appointment of counsel and an evidentiary hearing.
Because the record conclusively shows that Peterson is not
entitled to relief, the Court denies his § 2255 motion
without an evidentiary hearing. See Thomas v. United
States, 737 F.3d 1202, 1206 (8th Cir. 2013). The Court
also denies his motion for appointment of counsel.
See 18 U.S.C. § 3006A(a)(2)(B) (2012);
Abdullah v. Norris, 18 F.3d 571, 573 (8th Cir.
February 2015, a grand jury returned an indictment against
Peterson, charging him with being an armed career criminal in
possession of a firearm. In November 2015, after the denial
of Peterson's motion to suppress, the government filed an
information that charged him with possession of a stolen
firearm. A few days later, Peterson pleaded guilty to
possession of a stolen firearm.
agreement set forth the terms and conditions on which
Peterson and the government agreed to resolve the case. In
exchange for his guilty plea, the government agreed to move
to dismiss the indictment at sentencing. The government and
Peterson agreed to a base offense level of 24, stipulating
that he had at least two prior felony convictions that are
crimes of violence. See U.S.S.G. § 2K2.1(a)(2).
Based on a total offense level of 23 and a criminal history
category of VI, they calculated a guideline range of
imprisonment of 92 to 115 months. The government and Peterson
agreed to jointly recommend a sentence of 120 months'
imprisonment. He waived his right to appeal his sentence as
long as it did not exceed 120 months' imprisonment.
Court sentenced Peterson to 120 months' imprisonment. He
did not appeal.
11 months after his sentencing, Peterson filed his §
2255 motion. He asserted two claims: (1) ineffective
assistance of counsel and (2) improper use of predicate
convictions under U.S.S.G. § 2K2.1. According to
Peterson, he received ineffective assistance of counsel
because his attorney failed to object to the use of his prior
convictions as crimes of violence. He also asserted that his
prior convictions were improperly regarded as crimes of
violence under U.S.S.G. § 2K2.1.
2255 “provides a remedy for jurisdictional and
constitutional errors.” Sun Bear v. United
States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc).
“Beyond that, the permissible scope of a § 2255
collateral attack on a final conviction or sentence is
severely limited; ‘an error of law does not provide a
basis for collateral attack unless the claimed error
constituted “a fundamental defect which inherently
results in a complete miscarriage of
justice.”'” Id. (quoting United
States v. Addonizio, 442 U.S. 178, 185 (1979)).
questions of guideline interpretation falling short of the
‘miscarriage of justice' standard do not present a
proper section 2255 claim.” Auman v. United
States, 67 F.3d 157, 161 (8th Cir. 1995); accord Sun
Bear, 644 F.3d at 704. “[I]n sentencing, a
miscarriage of justice cognizable under § 2255 occurs
when the sentence is in excess of that authorized by
law.” Sun Bear, 644 F.3d at 706.
pleaded guilty possession of a stolen firearm. See
18 U.S.C. § 922(j) (2012). He was subject to a term of
imprisonment of “not more than 10 years.”
Id. § 924(a)(2). As contemplated by the plea
agreement, Peterson and the government asked for a sentence
of 120 months' imprisonment. The Court sentenced him to
120 months' imprisonment. The sentence that Peterson
received does not exceed that authorized by law. His claim
that his guideline range of imprisonment was improperly
calculated does not present a proper claim under § 2255.
See Sun Bear, 644 F.3d at 706; Auman, 67
F.3d at 161.
assistance of counsel
asserted that he received ineffective assistance of counsel
because his attorney failed to object to the characterization
of two of his prior convictions as crimes of violence. The
government and Peterson agreed that he had at least two prior
felony convictions that are crimes of violence, including
convictions in Minnesota for third-degree assault and
fifth-degree assault. Their agreement is consistent with
appellate decisions. See United States v. Schaffer,
818 F.3d 796, 798 (8th Cir.) (holding that Minnesota felony
domestic assault, which requires the same force as
fifth-degree assault, is a violent felony), cert.
denied, 137 S.Ct. 410 (2016); United States v.
Yang, 799 F.3d 750, 756 (7th Cir. 2015) (“A
conviction under [Minn. Stat. § 609.224, subd. 4, ]
qualifies as a violent felony because it has ‘as an
element the use, attempted use, or threatened use of physical
force against the person of another.'”);
Roberts v. Holder, 745 F.3d 928, 930-31 (8th Cir.
2014) (“We conclude that Roberts's third-degree
assault conviction in Minnesota constitutes an aggravated
felony, because, under Minnesota law, it ‘has as an
element the use, attempted use, or threatened use of physical
force' against another, and is therefore categorically a
‘crime of violence' under 18 U.S.C. §
16(a).”). The alleged failure of Peterson's
attorney to object to the characterization of his prior
convictions as crimes of violence does not constitute
ineffective assistance of counsel. See Hamberg v. United
States, 675 F.3d 1170, 1173 (8th Cir. 2012) (counsel not
ineffective for failing to object to correct application of
settled law within circuit); Toledo v. United
States, 581 F.3d 678, 681 (8th Cir. 2009) (“It is
not ineffective assistance of counsel to withdraw objections
that have no support in the law.”). Peterson has not
demonstrated that he received ineffective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668
appeal cannot be taken from a final order denying a motion
under § 2255 without a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B) (2012); Fed. R. App. P. 22(b)(1).
A court cannot issue a certificate of appealability unless
the applicant has made a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). “Where a district court has rejected the
constitutional claims on the merits, the showing required to
satisfy § 2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the
district court's assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529
U.S. 473, 484 (2000). “When the district court denies a
habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim, a
[certificate of appealability] should issue when the prisoner
shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of ...