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Bailey v. United States

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

March 20, 2018

ANTONIO BAILEY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Antonio Bailey's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United States of America has responded to the motion, pursuant to the Court's Show Cause Order. Movant has filed a Traverse. For the reasons set forth below, the Motion to Vacate is denied.

         PROCEDURAL HISTORY

         On June 6, 2012, a grand jury returned an indictment charging Movant with possession with the intent to distribute in excess of 28 grams of cocaine base (crack); possession of a firearm in furtherance of a drug trafficking crime; maintaining a drug-involved premises; and felon in possession of a firearm.

         On July 17, 2012, Petitioner filed a waiver of pretrial motions. This waiver was withdrawn by newly retained counsel. A motion to suppress evidence and a memorandum in support were filed on behalf of Movant on January 30, 2013. The government opposed the Motion. Judge Noce issued a Report and Recommendation that the Motion to Suppress be denied. This Court overruled Movant's objections and denied the Motion.

         Movant moved to terminate counsel on June 7, 2013. The Court granted the motion and appointed counsel.

         On July 29, 2013, Movant entered a plea of guilty, pursuant to a written plea agreement. The written Plea Agreement provided that Petitioner agreed that the search of his residence was conducted pursuant to a “lawful search warrant.” Further, Movant waived all rights to appeal any issues related to pretrial motion and the right to file pretrial motions, including motions to suppress evidence. Movant also attested that he was fully satisfied with the representation provided by defense counsel. In the Plea Agreement and the plea colloquy with this Court at the change of plea hearing, Movant stated that he entered into the plea agreement and the guilty plea voluntarily and of his own free will because he was in fact guilty of the charges.

         On November 14, 2013, the Court sentenced Movant to 180 months imprisonment. Movant did not appeal his sentence.

         Movant filed this Motion for Post-Conviction Relief pursuant to Title 28 U.S.C. Section 2255 on December 5, 2014.

         STANDARD FOR RELIEF UNDER 28 U.S.C. §2255

         A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. In order to obtain relief under § 2255, the movant must allege a 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 also be limited by procedural default. A movant “cannot raise a nonconstitutional or nonjurisdictional 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) (citing Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even constitutional or jurisdictional claims not raised on direct appeal cannot be raised collaterally in a § 2255 motion “unless a petitioner 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) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).

         DISCUSSION

         Right to ...


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