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United States v. Forbes

United States District Court, D. Minnesota

December 11, 2019

United States of America, Plaintiff/Respondent,
Devlin Martin Forbes, Defendant/Petitioner.

          Thomas M. Hollenhorst, Assistant United States Attorney, Counsel for Respondent.

          Andrew H. Mohring, Assistant Federal Defender, Counsel for Petitioner.


          Michael J. Davis United States District Judge

         This matter is before the Court upon Petitioner's motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. [Doc. No. 103]

         I. Background

         On September 26, 2017, Petitioner pled guilty to Count 1 of the Indictment which charged him with Conspiracy to Distribute 500 Grams or More of a Mixture and Substance Containing a Detectable Amount of Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 and Count 5 which charged Carrying a Firearm During Drug Trafficking in violation of 18 U.S.C. § 924(c)(1)(A).

         In paragraph 2 of the Plea Agreement, Petitioner stipulated to the following factual basis: That on December 20, 2016, he sold 220 grams of methamphetamine to a confidential informant. He further agreed that on July 10, 2017, co-defendant Oscar Serrano was stopped by the South Dakota Highway Patrol, who found approximately 13 kilograms of methamphetamine in a hidden compartment in the car, and that Serrano told law enforcement he was delivering the drugs to Petitioner. Petitioner further agreed that on July 12, 2017, he took possession of a backpack which he believed contained the methamphetamine. When Petitioner was arrested, he was found in possession of approximately two pounds of methamphetamine and a loaded Ruger P90DC, .45 caliber semiautomatic handgun. Petitioner further agreed that law enforcement searched his stash apartment and seized additional firearms, approximately six kilograms of methamphetamine, approximately 900 grams of heroin, two kilograms of cocaine, and quantifies of LSD, psilocybin mushrooms and marijuana. Petitioner agreed that he conspired to distribute the methamphetamine and that he carried the Ruger .45 caliber handgun during and in relation to his possession with intent to distribute approximately two pounds of methamphetamine.

         On April 4, 2018, he was sentenced to a term of imprisonment of 300 months, consisting of 240 months on Count 1 and 60 months on Count 5, to be served consecutively. Petitioner's sentence is a downward variance from the applicable guideline range of 360 months to life as to Count 1 and a mandatory 60 month consecutive sentence for Count 5. Petitioner did not appeal his sentence.

         II. Standard of Review

         Under 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).

         Petitioner 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 omitted). The Court finds that Petitioner has not demonstrated that he is entitled to an evidentiary hearing because his claims are contradicted by the record.[1]

         III. Ineffective ...

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