United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS UNITED STATES DISTRICT JUDGE,
matter is before the Court on Movant Dwight Rhodes'
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. (Doc. No.
1.) The Government has filed a Response (Doc. No. 9), and
Movant filed a Reply (Doc. No. 15). The matter is, therefore,
ready for disposition. Because the Court finds that
Movant's claim can be conclusively determined based upon
the parties' filings and the record, the Court decides
this matter without an evidentiary hearing.
October 20, 2011, a federal grand jury returned a four-count
indictment against Movant, charging him with (1) possession
of marijuana in violation of 21 U.S.C. § 844(a) (Count
I); (2) being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g)(1) (Count II); (3) using and
maintaining a premises for the purpose of distributing and
using a controlled substance in violation of 21 U.S.C. §
856(a)(1) (Count III); and (4) possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (Count IV). After a two-day jury trial
on June 25 and 26, 2012, Movant was found guilty on all four
counts. On September 27, 2012, Movant was sentenced to
concurrent terms of 12 months on Count I and 94 months on
Counts II and III, and a consecutive term of 60 months on
Count IV, for a total term of imprisonment of 154 months.
appealed to the Eighth Circuit Court of Appeals, arguing that
the trial court erred in denying his motion for judgment of
acquittal on Count III because the evidence was insufficient
to prove that his purpose in using or maintaining the
premises in question was to distribute a controlled
substance. The Eighth Circuit rejected his argument and
affirmed this Court's judgment and sentence on September
13, 2013. United States v. Rhodes, 730 F.3d 727 (8th
Cir. 2013). His petition for writ of certiorari was denied by
the United States Supreme Court on March 10, 2014. Rhodes
v. United States, 134 S.Ct. 1525 (2014). On March 9,
2015, Movant timely filed pro se the pending motion
under 28 U.S.C. § 2255, alleging ineffective assistance
of trial counsel. On September 11, 2017, Movant filed a
motion to amend his § 2255 motion on the grounds that 18
U.S.C. § 924 is “void for vagueness.”
Standard of review
to 28 U.S.C. § 2255, a federal prisoner may seek habeas
relief “upon 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.” 28 U.S.C. § 2255(a). To
warrant relief under § 2255, the error of which the
movant complains must amount to a “fundamental defect
which inherently results in a complete miscarriage of
justice.” Davis v. United States, 417 U.S.
333, 346 (1974) (quotation and citation omitted); United
States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).
2255 does not provide a means for movants to relitigate the
merits of the evidence presented at their trial. See
Houser v. United States, 508 F.2d 509, 513-14 (8th Cir.
1974) (“Prisoners adjudged guilty of crime should
understand that 28 U.S.C.A. § 2255 does not give them
the right to try over again the cases in which they have been
default may limit the relief available to a § 2255
movant. First, a movant cannot raise a claim that was
previously raised and decided on direct appeal. United
States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005).
Second, a movant cannot raise a non-constitutional or
non-jurisdictional claim that could have been raised on
direct appeal but was not. Anderson v. United
States, 25 F.3d 704, 706 (8th Cir. 1994). Third, a
movant cannot raise a constitutional or jurisdictional claim
that was not raised on direct appeal unless he “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). However, a movant may
raise a claim of ineffective assistance of counsel for the
first time in a § 2255 motion, regardless of whether the
claim could have been raised on direct appeal. Massaro v.
United States, 538 U.S. 500, 504 (2003).
movant's claim is not procedurally barred, the Court must
hold an evidentiary hearing to consider it, “[u]nless
the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b). 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). In
contrast, a court may dismiss a movant's 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 v. United
States, 24 F.3d 1040, 1043 (8th Cir. 1994).
§ 2255 motion
seeks relief on the grounds that his counsel was ineffective.
In Strickland v. Washington, 466 U.S. 668 (1984),
the United States Supreme Court set forth the two-part test a
§ 2255 movant must satisfy in order to prevail on a
claim of ineffective assistance:
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing
that counsel's ...