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 Robert Montell Sills' 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, and Movant has filed a Reply thereto. For the reasons set forth below, the Motion is denied.
On December 16, 2010, the government filed a two count indictment against Petitioner and three co-defendants. Specifically, Count One of the indictment charged petitioner with being part of a conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The government alleged that the quantity of cocaine involved in the conspiracy was in excess of five kilograms punishable pursuant to 21 U.S.C. § 841(b)(1)(A)(ii)(II).
On June 28, 2011, Petitioner entered a guilty plea as to Count One. On September 16, 2011, this Court sentenced him to a term of imprisonment of 120 months on Count One. This sentence was ordered to run concurrent to his 120 month sentence in United States v. Robert M. Sills, et al., No. 4:10-CR-523-JCH (E.D. Mo.), and consecutive to his 136 month sentence in United States v. Robert M. Sills, et al., No. 06-CR-20663-AC-15 (E.D. Mich.). The Court fined Petitioner $10, 000.00, and sentenced him to five years supervised release to run concurrent with that imposed in Case No. 4:10-CR-523-JCH and consecutive that imposed in 06-CR-20663-AC-15. Petitioner did not file a notice of appeal.
Petitioner filed this Motion for Post-Conviction Relief pursuant to Title 28 U.S.C. Section 2255 on October 1, 2012.
CLAIMS FOR RELIEF
Petitioner has raised the following grounds for post-conviction relief:
Ground One: Petitioner's guilty plea to the drug conspiracy charge was not knowing, intelligent and voluntary because as part of his plea agreement with the government, he entered a guilty plea in United States v. Robert M. Sills, et al., No. 4:10-CR-523-JCH (E.D. Mo.). Petitioner, however, would not have entered a guilty plea to the drug conspiracy charge if he understood that the guilty plea he entered in Case No. 4:10-CR-523-JCH lacked a factual basis. Instead, he would have proceeded to trial on the drug conspiracy charge. Because one of the conditions for entering a plea to the drug conspiracy charge was the invalid witness tampering charge, Petitioner's conviction to the drug conspiracy charge should be vacated. The two guilty pleas are so intertwined that the invalidation of one of them automatically invalidates the other.
Ground Two: Plea counsel was ineffective because he advised Petitioner to enter a guilty plea to the witness tampering charge as part of the package deal to enter a guilty plea to the drug conspiracy charge. If Petitioner had known that he could not have been convicted of the witness tampering charge, he would not have entered a guilty plea to it or the drug conspiracy charge and proceeded to trial.
Ground Three: The government committed prosecutorial misconduct when it linked the guilty plea in the drug conspiracy charge with the witness tampering charge. The government required as part of its agreement to accept Petitioner's pleas that he enter a guilty plea to a charge to which he was innocent. The government's actions violated Petitioner's rights to due process and the right to a jury trial under the Fifth and Sixth Amendments to the United States Constitution.
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 ...