United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
matter is before the Court on federal prisoner John
McFarland's (“movant” or
“McFarland”) pro se motion under 28 U.S.C. §
2255 to vacate, set aside or correct his sentence. The
government responded to the motion to vacate, and movant
filed a reply titled “Defendant's Amended Motion
Supporting 2255” (Doc. 16). The Federal Public
Defender's Office also filed a reply in support of
movant's § 2255 motion. For the reasons discussed
below, the Court concludes that the instant motion was timely
filed and is not second or successive, but does not entitle
movant to relief and should be dismissed without an
and his codefendant Darryl Warren were charged by superseding
indictment with conspiring between December 5, 1990 and
September 11, 1995 to distribute and possess with intent to
distribute 500 grams or more of cocaine, marijuana, and 100
grams or more of heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count I). In addition,
McFarland was indicted with traveling interstate in aid of
racketeering in violation of 18 U.S.C. § 1952(a)(3)
(Count II). The government filed an information pursuant to
21 U.S.C. § 851 stating that McFarland had two prior
felony drug convictions that would enhance his penalties at
sentencing if convicted. These convictions were from the
State of California. McFarland was found guilty by a jury on
both counts of the superseding indictment.
presentence investigation report (“PSR”) stated
that for Count I, a violation of 21 U.S.C. § 841(a)(1)
and § 846 carried a minimum term of imprisonment of ten
years and maximum term of life, pursuant to 21 U.S.C. §
841(b)(1)(B). United States v. McFarland,
4:95-CR-312 CAS, Doc. 154, ¶ 75. For Count II, a
violation of 18 U.S.C. § 1952(a)(3) carried a maximum
term of imprisonment of five years. Id. The PSR
stated that McFarland's guideline provisions were 360
months to life based on a total offense level of 38 and a
criminal history category of VI. Id., ¶ 76. The
PSR also stated that for Count I, a supervised release term
of at least eight years was required under 21 U.S.C. §
841(b)(1)(A), and for Count II, the authorized term for
supervised release was not more than three years pursuant to
18 U.S.C. § 3583(b)(2). Id., ¶ 78. The
terms of supervised release were to run concurrently under 18
U.S.C. §3624(e). Id.
was sentenced to 360 months imprisonment on Count I and 60
months imprisonment on Count II, to be served concurrently,
followed by eight years supervised release. McFarland filed a
direct appeal, but the Eighth Circuit Court of Appeals
affirmed his conviction and sentence. United States v.
McFarland, 116 F.3d 316 (8th Cir. 1997). Movant then
filed a motion under 28 U.S.C. § 2255 which this Court
denied after an evidentiary hearing. See McFarland v.
United States, No. 4:98-CV-1841 CAS (E.D. Mo.). Movant
filed a second motion under 28 U.S.C. § 2255, which this
Court ordered transferred to the Eighth Circuit because
movant had not obtained permission to file a second or
successive motion under § 2255(h). See McFarland v.
United States, No. 4:00-CV-1247 CAS (E.D. Mo.). The
Eighth Circuit denied movant's petition to file a second
or successive motion. McFarland v. United States,
No. 00-3309 (8th Cir. Nov. 8, 2000).
January 29, 2015, the Court granted movant's Motion for
Retroactive Application of Amendment 782 United States
Sentencing Guidelines, and reduced his sentence to 324
months. (4:95-CR-312 CAS, Doc. 222.) Movant filed the instant
motion under § 2255 on January 29, 2016.
to 28 U.S.C. § 2255, a defendant may seek relief on
grounds that the sentence was imposed in violation of the
Constitution or law of the United States, that the court
lacked jurisdiction to impose such a sentence, that the
sentence exceeded the maximum authorized by law, or that the
sentence is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To warrant relief under § 2255, the errors
of which the movant complains must amount to a fundamental
miscarriage of justice. Davis v. United States, 417
U.S. 333 (1974); Hill v. United States, 368 U.S.
424, 428 (1962).
§ 2255 motion ‘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.'”
Sanders v. United States, 341 F.3d 720, 722 (8th
Cir. 2003) (quoting Engelen v. United States, 68
F.3d 238, 240 (8th Cir. 1995)).
instant motion, movant seeks relief from his sentence imposed
pursuant to 21 U.S.C. § 841(b)(1)(B), based on a recent
change in California state law that affects the prior felony
convictions on which his enhanced sentence was based. In
November 2014, California voters enacted Proposition 47, Cal.
Penal Code § 1170.18. As relevant here, Proposition 47
reduced future convictions under California Penal Code §
11350(a) from a felony to a misdemeanor, and permitted
defendants previously convicted under the statute to seek a
“recall of sentence” from the California state
courts which, if granted, would reclassify their qualifying
felonies as misdemeanors. United States v. Diaz, __
F.3d __, No. 10-50029, 2016 WL 5121765, at *2, reh'g
and reh'g en banc denied, (9th Cir. Sept. 21, 2016).
to the motion to vacate is a copy of a letter from a
paralegal with the County of San Diego, California Primary
Public Defender, which states that the California court
granted movant's Proposition 47 petitions to reclassify
his two prior convictions from felonies to misdemeanors. The
letter is not authenticated and movant does not provide any
other evidence of the reclassification of his convictions.
Because the government has not challenged the accuracy or
sufficiency of movant's allegations concerning the change
in his underlying convictions, the Court accepts for purposes
of the instant motion that movant's prior California
felony convictions are now misdemeanor convictions.
government opposes the motion to vacate on three grounds.
First, it asserts that the motion is untimely because it was
filed more than one year after the conviction became final,
28 U.S.C. § 2255(f)(1). It contends the reclassification
of McFarland's prior state felony drug convictions does
not qualify as a newly discovered fact that warrants
extension of the one-year period under 28 U.S.C. §
2255(f)(4). Second, the government asserts that because
movant previously filed a motion under § 2255, he must
obtain permission from the Eighth Circuit before he can
proceed. 28 U.S.C. § 2255(h). Third, the government
asserts that movant's § 2255 fails on the merits
because the reclassification of his prior felony ...