United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE
matter is before the Court on Cortez White'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 Show
Cause Order. For the reasons set forth below, the Motion to
Vacate is denied.
September 28, 2012, Movant entered a plea of guilty, pursuant
to a written plea agreement, to a lesser included charge of
conspiracy to distribute in excess of 500 grams of cocaine.
On January 7, 2013, Movant was sentenced to 100 months
imprisonment, the lowest possible sentence under the
parties' plea agreement. The court ran the sentence
concurrent with defendant's illegal re-entry sentence. An
amended judgment was entered on January 14, 2013 to include a
recommendation by the Court for placement in a facility near
Ft. Leavenworth, Kansas.
did not file a timely appeal. He did, however, file an appeal
on March 21, 2013, in spite of his agreement in the plea
agreement not to file an appeal. The Eighth Circuit Court of
Appeals dismissed Movant's appeal as untimely on April 5,
2013. Another notice of appeal was filed by Movant on
November 12, 2013. This appeal was again dismissed by the
Eighth Circuit as untimely on December 16, 2013.
filed this Motion for Post-Conviction Relief pursuant to
Title 28 U.S.C. Section 2255 on September 14, 2014.
FOR RELIEF UNDER 28 U.S.C. §2255
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)).
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 or (2) actual
innocence.” United States v. Moss, 252 F.3d
993, 1001 (8th Cir. 2001) (citing Bousley v. United
States, 523 U.S. 614, 622 (1998)).
to Evidentiary Hearing
Court must hold an evidentiary hearing to consider claims in
a § 2255 motion “‘[u]nless the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.'” Shaw v.
United States, 24 F.3d 1040, 1043 (8th Cir. 1994)
(alteration in original) (quoting 28 U.S.C. § 2255).
Thus, a movant is entitled to an evidentiary hearing
“‘when the facts alleged, if true, would entitle
[the movant] to relief.'” Payne v. United
States, 78 F.3d 343, 347 (8th Cir. 1996) (quoting
Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir.
1986)). The Court may dismiss a claim “without an
evidentiary hearing if the claim is inadequate on its face or
if the record affirmatively refutes the factual assertions
upon which it is based.” Shaw, 24 F.3d at 1043
(citing Larson v. United States, 905 F.2d 218,
220-21 (8th Cir. 1990)). Since the Court finds that
Movant's claims can be conclusively determined based upon
the parties' filings and the records of the case, no
evidentiary hearing will be necessary.