United States District Court, D. Minnesota
Jeffrey S. Paulsen, Assistant United States Attorney, Counsel
MEMORANDUM OPINION AND ORDER
MICHAEL J. DAVIS UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Petitioner's motions to
Vacate, Set Aside, or Correct his Sentence pursuant to 28
U.S.C. § 2255, for permission to file an untimely 28
U.S.C. § 2255 motion, to appoint counsel, and to proceed
IFP. [Doc. Nos. 43, 44, 46 and 47]
20, 2014, Petitioner pled guilty to Count 1 of the Indictment
which charged him with possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841
(a)(1) and (b)(1)(C). On November 24, 2014, he was sentenced
to imprisonment for a term of 96 months, which was a downward
variance from the applicable guideline range of 135-168
months. The applicable guideline range was based on the
Court's determination that Petitioner was accountable for
4.867 kilograms of methamphetamine (actual), which subjected
him to a base offense level of 38. Petitioner did not appeal
March 15, 2015, Petitioner filed a motion for sentence
reduction based on Amendment 782 to the United States
Sentencing Guidelines, which revised the drug quantity table.
[Doc. No. 33] The motion was denied based on this Court's
determination that application of Amendment 782 in this case
did not reduce Petitioner's base offense level from a
level 38. [Doc. No. 36] On December 14, 2015 and June 27,
2016, Petitioner filed additional motions to reduce his
sentence based on Amendment 782 to the Guidelines, and those
motions were denied as Petitioner had again failed to
demonstrate that he was entitled to relief. [Doc. No. 42]
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
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).
is entitled to an evidentiary hearing on his petition
“unless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C.A. ' 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, inherently incredible, or conclusions rather than
statements of fact.” Engelen v. United States,
68 F.3d 238, 240 (8th Cir. 1995) (internal citations
Court finds that Petitioner has not demonstrated that he is
entitled to an evidentiary hearing. Many of the allegations
asserted in the petition are contradicted by the record, and
for the remaining allegations, even if accepted as true,
Petitioner has not demonstrated that he is entitled to
is a one year period during which a motion may be filed under
Section 2255. 28 U.S.C. § 2255(f). This period begins to
run from the latest of: 1) the date on which the judgment of
conviction becomes final; 2) the date on which the impediment
to making a motion created by government action in violation
of the Constitution or the laws of the United States is
removed, if the movant was prevented from making a motion by
such governmental action; 3) the date on which the right
asserted was initially recognized by the Supreme Court and
made retroactively applicable to cases on ...