United States District Court, D. Minnesota
H. Nelson, Assistant United States Attorney, Counsel for
Petitioner, pro se.
MEMORANDUM OPINION AND ORDER
Michael J. Davis United States District Judge
matter is before the Court upon Petitioner's motion under
Rule 60 (b)(6) of the Federal Rules of Criminal
Procedure. [Doc. No. 257]
February 18, 2011, Petitioner was found guilty by a jury of
Count 1 of the Indictment which charged Conspiracy to
Distribute and Possess with Intent to Distribute Controlled
Substances, Methamphetamine and Oxycodone in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 and Count 3
which charged Possession with Intent to Distribute
Approximately 320 Grams Methamphetamine (Actual) in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C.
December 13, 2011, Petitioner was sentenced to a term of
imprisonment of 240 months on each count, to be served
concurrently, followed by five years of supervised release.
On appeal, Petitioner did not challenge his conviction, but
he did challenge the Court's application of two
sentencing enhancements under the sentencing guidelines. The
Eighth Circuit rejected Petitioner's arguments on appeal
and affirmed his sentence. United States v. Garcia,
703 F.3d 471 (8th Cir. 2013) pet. cert. denied Garcia v.
United States, 134 S.Ct. 1048 (2014).
response to the November 2014 amendments to the drug quantity
table in the sentencing guidelines, which reflected a
two-level reduction in the base offense level for each drug
within the table, Petitioner filed a motion for a sentence
reduction. By Order dated December 13, 2016, the motion was
denied because Petitioner's guideline range remained the
same even after applying the lower base offense
level. On appeal, the Eighth Circuit affirmed the
order denying his motion for resentencing. (Doc. No. 250
(Order dated January 17, 2017).)
then filed an application with the Eighth Circuit for
authorization to file a second or successive 28 U.S.C. §
2255 motion. The application was denied because Petitioner
had not filed a previous motion under § 2255 before this
Court. (Doc. No. 254 (Order dated August 14, 2018).) The
Eighth Circuit transferred Petitioner's application to
this Court for consideration as an initial § 2255
motion. (Id.) Thereafter, Petitioner filed the
instant motion under Rule 60(b)(6).
Standard of Review
moves the Court to vacate his sentence and dismiss the
Indictment pursuant to Rule 60(b)(6). Because Petitioner is
seeking substantive relief from his conviction and sentence,
the Court will construe the motion as a collateral attack
brought pursuant to 28 U.S.C. § 2255. See Hill v.
Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003) (“It
is well settled a collateral challenge to a federal
conviction or sentence must generally be raised in a motion
to vacate filed in the sentencing court under § 2255 . .
Section 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