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Walker v. United States

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

February 21, 2018

DARRELL LAMONT WALKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.

         This 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 [1].

         I. BACKGROUND

         On 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).[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 supervised release.

         The 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.

         In his Motion to Vacate, Petitioner challenges his sentence as improper and argues his counsel was ineffective.

         II. STANDARD

         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)). 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).

         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, ” 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.

         III. DISCUSSION

         In his 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.

         A. Improper Sentence

         Petitioner 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 ...


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