United States District Court, W.D. Missouri, Western Division
MARIO A. THIBEAUX, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION TO VACATE SENTENCE
KAYS, CHIEF JUDGE.
before the Court are two motions to vacate and sentence
pursuant to 28 U.S.C. § 2255 (Docs. 1, 7). Because both
motions are without merit, they are DENIED.
early morning of February 22, 2013, police officers
responding to a 911 call attempted to stop and speak with a
group of individuals. One of them, Movant Mario Thibeaux,
then reached into his pocket, grabbed a black object, and
made a throwing motion. A police officer witnessed him throw
the object, and Movant's throwing motion was captured on
a patrol car's dashboard camera. The black object turned
out to be a handgun. A jury subsequently convicted Movant of
being a felon in possession of a firearm.
Court sentenced Movant on April 9, 2014. The Court ruled
Movant's previous felon-in-possession conviction
qualified as a crime of violence under the advisory
Sentencing Guidelines for purposes of calculating his base
offense level, raising it 24. While discussing the relevant
sentencing factors under 18 U.S.C.A. § 3553(a), the
Court noted the nature of Movant's offense, his extensive
and serious criminal history, the need for adequate
deterrence, and the need to protect the public from Movant.
The Court noted specifically that in each of his prior felony
convictions, Movant had violated his probation, parole, or
supervised release term, causing him to be returned to
custody. The Court also observed that his prior terms of
imprisonment had not prevented him from committing additional
crimes, and that it wanted to impose a sentence which would
be a deterrent. The Court sentenced Movant to 120 months'
imprisonment. The Court also stated that given the §
3553(a) factors, it would have imposed a 120 month sentence
even if Movant's base offense level were only 20.
direct appeal, the Government conceded that Movant's
previous felon-in-possession conviction should not have been
counted as a crime of violence for purposes of enhancing his
base offense level. The Eighth Circuit agreed, but affirmed
the 120 month sentence, holding that it was harmless error in
light of the Court's statement that it would have imposed
the same sentence. United States v. Thibeaux, 784
F.3d 1221, 1227 (8th Cir. 2015) (“Incorrect application
of the Guidelines is harmless error where the district court
specifies the resolution of a particular issue did not affect
the ultimate determination of a sentence.”).
wake of Johnson v. United States, 135 S.Ct. 2551
(2015) (holding the residual clause of the Armed Career
Criminal Act (“ACCA”) is void-for-vagueness),
Movant filed two motions under 28 U.S.C. § 2255; the
first (Doc. 1) on June 30, 2016, the second (Doc. 7) on
August 9, 2016.
first motion argues the Court imposed an unlawful sentence by
improperly classifying his prior felon-in-possession
conviction as a crime of violence for purposes of calculating
his guidelines sentence. This claim is denied because the
Eighth Circuit considered and rejected this claim on
Movant's direct appeal in upholding his 120 month
second motion asserts that unspecified “newly
discovered evidence” shows the dashcam video of the
incident leading to his conviction was altered. Movant
alleges the original dashcam video shows he did not possess a
firearm, and that it was another man who actually dropped the
gun. Movant also alleges trial counsel was ineffective for
not obtaining the original dash cam video. Movant does not
provide the Court with a copy of this newly discovered
evidence, or explain what it is, where it is, or how he came
to learn of it; he simply makes a conclusory claim that an
unaltered original of the video exists which exonerates him.
claims are so incredible, completely unsupported by any
facts, and contradicted by the evidence adduced at trial that
the Court dismisses them without an evidentiary hearing.
See Blacklege v. Allison, 431 U.S. 63, 74 (1977)
(“The subsequent presentation of conclusory allegations
unsupported by specifics is subject to summary dismissal, as
are contentions that in the fact of the record are wholly
incredible.”); United States v. Bryson, 268
F.3d 560, 562 (8th Cir. 2001) (holding conclusory allegations
are insufficient to establish ineffective assistance of
counsel). Movant has not provided any evidence, or even
evidence that might lead to evidence, that the video played
at his trial was not the original or had been altered in some
fashion. In fact, Movant's theory that another man had
the means and motive to discard the gun was presented to the
jury at trial and to the Eight Circuit on direct appeal, and
both rejected it. Thibeaux, 784 F.3d at 1224-25.
Court will not hold an evidentiary hearing. “A
petitioner is entitled to an evidentiary hearing on a section
2255 motion unless the motion and the files and records of
the case conclusively show that he is entitled to no
relief.” Anjulo-Lopez v. United States, 541
F.3d 814, 817 (8th Cir. 2008). “No hearing is required,
however, where the claim is inadequate on its face or if the
record affirmatively refutes the factual assertions upon
which it is based.” Id.; see also Sanders
v. United States, 341 F.3d 720, 722 (8th Cir. 2003)
(“A § 2255 motion can be dismissed without a
hearing if (1) a petitioner's allegations, accepted as
true, would not entitle the petitioner to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact.”). Given
that Movant's allegations are incredible and contracted
by the record, no evidentiary hearing is warranted.
the Court holds no reasonable jurist would grant this motion
and so declines to issue a certificate of appealability.
See Slack v. McDaniel, 529 ...