United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
HENRY EDWARD AUTREY, District Judge.
This matter is before the Court on Jerry McComb's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United States of America has responded to the motion, pursuant to the Court's Case Management Order.
On July 16, 2009, a Grand Jury indicted Movant charging him with various violations of 21 U.S.C. §§ 841(a)(1) and 846.
On March 4, 2010, Movant appeared before this Court for a change of plea hearing. Movant admitted the violations and on June 1, 2010, the Court sentenced Movant to a term of imprisonment of 188 months. Movant filed a notice of appeal on June 15, 2010. This appeal was dismissed by the Eighth Circuit Court of Appeals based on Movant's appeal waiver contained in the written Plea Agreement.
Movant filed this Motion for Post-Conviction Relief pursuant to Title 28 U.S.C. Section 2255 on February 17, 2012.
CLAIM FOR RELIEF
Movant has raised the following grounds for post-conviction relief:
Ground One: Counsel was ineffective in failing to make proper objections as to how the Federal Government had jurisdiction to convict and sentence Movant when the State of Missouri is not a "State" of the "United States" under the Tenth Amendment.
Ground Two: The State of Missouri is not a "State" of the "United States" as both terms are meant in the Controlled Substance Act of 1970.
Ground Three: Whether Section 401(a) of the Controlled Substance Act of 1970, as applied, violates the Tenth Amendment.
STANDARD FOR RELIEF UNDER 28 U.S.C. 2255
A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on 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 that the sentence was in excess of the maximum authorized by law, 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. In order to obtain relief under § 2255, the movant must allege a violation constituting "a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
Claims brought under § 2255 may also be limited by procedural default. A movant "cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not." Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even constitutional or jurisdictional claims not raised on direct appeal cannot be raised collaterally in a § 2255 motion "unless a petitioner can demonstrate (1) cause for the default and actual prejudice ...