United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Petitioner Darrell Lamont
Walker's Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody
October 23, 2013, Petitioner Darrell Lamont Walker
(“Petitioner”) was indicted for being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). On February 19, 2014, Petitioner pled
guilty to the charge. On May 22, 2014, Petitioner was
sentenced to 46 months imprisonment and a three-year term of
2013 United States Sentencing Guidelines were applied in
Petitioner's case. Under §2K2.1(a)(4)(A),
Petitioner's base offense level was found to be 20
because Petitioner had one prior felony conviction of a crime
of violence, Stealing from a Person. Three levels were
deducted for acceptance of responsibility, making
Petitioner's total offense level 17. His criminal history
category was V and his guideline range of imprisonment was 46
to 57 months.
Motion to Vacate, Petitioner challenges his sentence as
improper and argues his counsel was ineffective.
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)).
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)). Exceptions to this rule are recognized only upon
production of convincing new evidence of actual innocence,
and are available only in the extraordinary case. United
States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001).
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).
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,
” or “when the facts alleged, if true, would
entitle [the petitioner] to relief.” 28 U.S.C. §
2255(b); see also Shaw v. United States, 24 F.3d
1040, 1043 (8th Cir. 1994); 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.
Motion to Vacate, Petitioner asserts two claims. First,
Petitioner challenges his sentence as improper because his
guidelines base offense level was increased due to his prior
conviction, Stealing from a Person, which he alleges is not a
crime of violence. Second, Petitioner asserts his counsel was
ineffective for failing to object to his prior conviction
qualifying as a crime of violence.
asserts his sentence is improper because the Court increased
his base offense level due to his prior conviction for
Stealing from a Person, which the Court considered to be a
crime of violence under U.S.S.G. §2K2.1. Petitioner
argues Stealing from a Person is ...