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Bailey v. United States

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

March 14, 2018

JOHN THOMAS BAILEY, 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 John Thomas Bailey's Pro Se “Motion for Vacation or Relief from Judgment “[1], “Omnibus Motion to Advance” [24][1], and “Motion for Leave to Amend Prior Motion to Advance” [27].

         I. BACKGROUND

         On June 27, 2012, Petitioner John Thomas Bailey (“Petitioner”) was indicted for conspiracy to possess with intent to distribute anabolic steroids in violation of 18 U.S.C. §841(a)(1) and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h).[2] On September 17, 2012, Petitioner pled guilty to the charges. Petitioner was sentenced to 125 months imprisonment and a two-year term of supervised release. After a successful motion to vacate challenging the application of certain United States Sentencing Guidelines, Petitioner was resentenced to 63 months imprisonment and a two-year term of supervised release.

         Petitioner filed a “Motion for Vacation or Relief from Judgment” in which he asks the Court to grant relief pursuant to Federal Rule of Civil Procedure (“FRCP”) 60(b) or in the alternative, 28 U.S.C. §§ 2241(c)(3) and 2243. FRCP 60(b) does not apply to Petitioner's case because he is challenging a criminal judgment, not a civil judgment. FRCP 60(b) applies only to civil judgments or civil orders. Because Petitioner is pro se, the Court will construe Petitioner's motion as a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, which allows for prisoners in Federal custody to challenge their sentences. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed.”).[3]

         In his Motion, Petitioner challenges his sentence stating his attorney should have raised his post-conviction rehabilitation efforts during the resentencing hearing, he was not on probation at the time of the conspiracy as the presentence report states, and the Bureau of Prisons has misclassified his security level requiring him to be in a higher security prison than needed.

         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 “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, Petitioner states his attorney should have raised his post-conviction rehabilitation efforts in the resentencing hearing, his attorney should have argued he was not on probation during the time of the conspiracy, he should have received 27 months imprisonment, the Bureau of Prisons has misclassified him at a higher security level than necessary, and he has been mistreated in prison.

         A. Post-Conviction Rehabilitation

         On March 27, 2015, Petitioner was resentenced, because, in his original sentence, a mistake was made in calculating the guideline range. The United States Probation Office filed a letter with the Court outlining Petitioner's new sentencing guideline range and included a list of Petitioner's rehabilitation efforts while in prison, including completing a drug education program, a career preparation class, and two philosophy classes. ...


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