United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE
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.
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.
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waiver was withdrawn by newly retained counsel.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.
moved to terminate counsel on June 7, 2013. The Court granted
the motion and appointed counsel.
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.
November 14, 2013, the Court sentenced Movant to 180 months
imprisonment. Movant did not appeal his sentence.
filed this Motion for Post-Conviction Relief pursuant to
Title 28 U.S.C. Section 2255 on December 5, 2014.
FOR RELIEF UNDER 28 U.S.C. §2255
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)).
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)).