United States District Court, D. Minnesota
K. Bell, Assistant United States Attorney, Counsel for
Petitioner, pro se.
MEMORANDUM OPINION AND ORDER
MICHAEL J. DAVIS JUDGE
matter is before the Court upon the petition of Vincent
Benshoof to Vacate, Set Aside, or Correct his Sentence
pursuant to 28 U.S.C. § 2255.
15, 2014, Petitioner pleaded guilty to Count 1 of the
Indictment which charged conspiracy to distribute 500 grams
or more of a mixture or substance containing methamphetamine
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)
to sentencing, the United States Probation Office prepared a
Presentence Investigation Report ("PSR") advising
that the total offense level for the crime of conviction was
29 and that his criminal history category was IV.
objected to the determination that he was an average
participant and that a criminal history category IV
overstated his criminal history and the likelihood he would
reoffend. The Court overruled the objection as to role in the
offense and granted a downward departure as to criminal
history category, finding that a category III better stated
his criminal history and the likelihood he would reoffend.
The Court found the applicable guideline range to be 120 to
135 months. The bottom of the range was based on the
applicable statutory mandatory minimum sentence for the
offense of conviction. The Defendant was sentenced to 120
months in prison, followed by five years supervised release.
filed a Notice of Appeal, but later moved to dismiss his
Appeal, which motion was granted.
November 9, 2016, Petitioner filed the instant petition,
claiming his defense counsel provided ineffective assistance
Standard of Review
28 U.S.C. § 2255, "[a] prisoner in custody under
sentence . . . 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 is
otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
the sentence." 28 U.S.C. § 2255(a). Section 2255 is
intended to provide federal prisoners a remedy for
jurisdictional or constitutional errors. Sun
Bear v. United States, 644 F.3d 700, 704 (8th Cir.
2011). It is not intended to be a substitute for appeal or to
relitigate matters decided on appeal. See Bousley v.
United States, 523 U.S. 614, 621 (1998); Davis v.
United States, 417 U.S. 333, 346-47 (1974)).
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