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Loper v. United States

United States District Court, E.D. Missouri, Eastern Division

February 16, 2018




         This matter comes before the Court on Petitioner LeRonald Loper's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [1], Petitioner's Motion on Court Order for Production of Written Documentations under the Control of the Office of the U.S. Federal Public Defender for the Eastern District of Missouri, Eastern Division [21], and Petitioner's Motion for Relief on Second Supplemental Claim under § 2255 [25].


         On January 12, 2012, Petitioner LeRonald Loper (“Petitioner”) was indicted for attempt to commit an offense against the United States of America, to obstruct, delay, and affect commerce and the movement of any article or commodity in commerce by robbery, and by committing and threatening physical violence to any person in furtherance of a plan or purpose in violation of 18 U.S.C. § 1951 (Count I), knowingly soliciting, commanding, inducing, or otherwise endeavoring to persuade one or more persons to engage in conduct constituting a felony that has as an element the use, attempted use, and threatened use of physical force against property and against the person of another in violation of the laws of the United States, in violation of 18 U.S.C. § 373 (Count II), and knowingly possessing a firearm having been convicted previously of one or more felony crimes in violation of 18 U.S.C. § 922(g)(1) (Count III).[1] On July 9, 2012, Petitioner pled guilty to Counts I and III. Count II was dismissed. On October 11, 2012, Petitioner was sentenced to 210 months imprisonment on each count, to be served concurrently, and a two-year term of supervised release.

         At sentencing, Petitioner was found to be a career offender under United States Sentencing Guideline §4B1.1, because of his prior felony convictions including Armed Robbery, Bank Robbery with a Firearm, and Bank Robbery. Petitioner was also found to be an Armed Career Criminal under 18 U.S.C. § 924(e)(1), because of his prior violent felony convictions including Assault with Intent to Rob with Malice, Robbery First Degree with a Dangerous and Deadly Weapon, Assault with Intent to Kill, and the previously listed convictions which established his career offender status.

         Petitioner filed a direct appeal with the Eighth Circuit Court of Appeals and the district court's judgment was affirmed on May 31, 2013. Petitioner did not file a writ of certiorari with the United States Supreme Court. On October 20, 2014, Petitioner filed the pending Motion to Vacate.


         A federal prisoner who seeks relief under 28 U.S.C. § 2255 on grounds “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(a). In order to obtain relief under § 2255, the petitioner must establish a constitutional or federal statutory 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 be limited by procedural default. A petitioner “cannot raise a non-constitutional or non-jurisdictional 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). Claims, including those concerning constitutional and jurisdictional issues, unraised on direct appeal cannot subsequently be raised in a ' 2255 motion unless the petitioner establishes “(1) cause for 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, 621-22 (1998)).

         However, ineffective assistance of counsel claims may be raised for the first time in a § 2255 motion even if they could have been raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). This exception is in place to prevent petitioners from being forced “to raise the issue before there has been an opportunity fully to develop the factual predicate for the claim.” Id. Additionally, a petitioner's attorney may serve as counsel for both the trial and appellate case, and it is unlikely that the attorney would raise a claim of his own ineffective assistance on appeal. See United States v. Rashad, 331 F.3d 908, 911 (D.C. Cir. 2003).

         To excuse procedural default, however, a petitioner, raising a constitutional claim for the first time in a § 2255 proceeding, still must demonstrate cause and prejudice. Anderson, 25 F.3d at 706. Ordinarily, issues that were raised and decided on direct appeal cannot be relitigated in a § 2255 motion. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001). Exceptions to this rule are recognized only upon production of convincing new evidence of actual innocence, and are available only in the extraordinary case. Id.

         If the petitioner's claims are not procedurally barred, the Court must hold an evidentiary hearing to consider the claims “[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994). A petitioner is entitled to an evidentiary hearing “when the facts alleged, if true, would entitle [the petitioner] to relief.” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (citation omitted). However, a court may dismiss a claim without a 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.


         In his motion, Petitioner asserts four claims including unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution, denial of right not to be compelled to testify against himself in violation of the Fifth Amendment, ineffective assistance of counsel in violation of the Sixth Amendment, and deprivation of liberty without due process in violation of the Fifth Amendment. In response, the Government argues the motion is untimely, ...

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