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 Dedric
Hilliard's Pro Se “Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by
Person in Federal Custody .
23, 1997, Petitioner Dedric Hilliard
(“Petitioner”) was convicted of kidnapping,
carrying a firearm during a crime of violence, and motor
vehicle theft - carjacking. He was sentenced to 235-months
imprisonment and a three-year term of supervised release.
After being released from prison, Petitioner was revoked for
violating his supervised release when he committed another
state crime; specifically, Petitioner attempted to rob an
individual. His grade of violation was A and his criminal
history category was III. Petitioner's guideline range
was 18-24 months and he was sentenced to 24-months
Motion to Vacate, Petitioner challenges his revocation
sentence, asserting his counsel was ineffective for failing
to inform the Court two of Petitioner's prior state
offenses for which he had been convicted, were vacated, which
would have lowered his criminal history category.
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
“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.
argues his sentence was calculated incorrectly at his Final
Supervised Release Revocation hearing, because two of his
prior convictions, driving without a license and driving
while on a suspended license, had been vacated. Petitioner
claims his counsel was ineffective for failing to inform the
Court of this change in his criminal history.
habeas petitioner claims ineffective assistance of counsel,
the Court's decision must be made “on an ad hoc
basis. In each case [the Court] must weigh, among other
factors, the time afforded counsel, the experience of
counsel, the gravity of the charge, and the complexity of the
possible defenses as well as the accessibility of witnesses
to counsel.” Wolfs v. Britton, 509 F.2d 304,
309 (8th Cir. 1975). To be successful on a claim of
ineffective assistance of counsel, the petitioner must
satisfy a two-prong test. Strickland v. Washington,
466 U.S. 668, 687-88 (1984). Specifically, the petitioner
must demonstrate: (1) counsel's performance was deficient
in that “counsel made errors so serious that counsel
was not functioning as the ‘counsel' guaranteed the
defendant by the Sixth Amendment”; and (2)
counsel's “deficient performance prejudiced the
defense.” Id. at 687; see also Auman v.
U.S., 67 F.3d 157, 162 (8th Cir. 1995). The Court may
address the two Strickland prongs in any order, and
if a petitioner fails to make a sufficient showing on one
prong, the Court need not address the other.
Strickland, 466 U.S. at 697; see also U.S. v.
Walker, 324 F.3d 1032, 1040 (8th Cir. 2003) (finding no
need to address the second prong of Strickland after
petitioner failed to satisfy the first prong).
counsel was not ineffective for failing to inform the Court
his prior convictions had been vacated. United States
Sentencing Guideline § 7B1.4,  Application Note 1 states,
“The criminal history category to be used in
determining the applicable range of imprisonment . . . is the
category determined at the time the defendant originally was
sentenced to a term of supervision.” Therefore, even
if Petitioner's counsel had informed the Court his prior
convictions were vacated, it would have had no effect on his
criminal history category or his revocation
sentence. Petitioner has not established he was
prejudiced by his counsel's alleged failure.
Petitioner's claim will be denied.