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McRoy v. United States

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

February 19, 2019

TINA MCROY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         Tina McRoy seeks to vacate, set aside or correct her sentence under 28 U.S.C. § 2255. Pursuant to a written plea agreement, McRoy pled guilty to conspiracy to distribute actual methamphetamine. On December 5, 2017, I sentenced her to a total term of 90 months imprisonment, plus three years of supervised release. Criminal No. 4:16CR426 CDP. McRoy did not appeal. She then filed a § 2255 motion and an amended § 2255 motion, alleging the following grounds for relief:[1]

1) Ineffective assistance of counsel because her attorney failed to argue sentencing disparity under Booker and 18 U.S.C. 3553(a);
2) Ineffective assistance of counsel because her attorney failed to argue for a “minor role” adjustment under Amendment 794;
3) Ineffective assistance of counsel because her attorney told her she would receive a sentence of five years if she signed the plea agreement;
4) Her Fourth Amendment rights were violated because the government failed to obtain a warrant from her cellular carrier; and
5) She should have been charged and/or sentenced for a mixture of methamphetamine rather than actual methamphetamine.

         I will deny McRoy's motion without an evidentiary hearing for the reasons that follow.

         Discussion

         A. No. Evidentiary Hearing is Required

         The records before me conclusively demonstrate that McRoy has no right to relief. I will not hold an evidentiary hearing on this matter. “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) (internal quotation marks omitted). “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. (internal quotation marks and citations omitted). The record here conclusively refutes the claims, so I will not hold an evidentiary hearing.

         B. Grounds Four and Five are Procedurally Barred and Meritless

         “A collateral challenge may not do service for an appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). “[N]ormally a collateral attack should not be entertained if defendant failed, for no good reason, to use another available avenue of relief.” Poor Thunder v. United States, 810 F.2d 817, 823 (8th Cir. 1987) (internal citation omitted). If a claim could have been raised on direct appeal but was not, it cannot be raised in a § 2255 motion unless the petitioner can show both (1) a “cause” that excuses the default, and (2) “actual prejudice” resulting from the errors of which he complains. See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993); Mathews v. United States, 114 F.3d 112, 113 (8th Cir. 1997).[2]

         In Ground 5, McRoy argues that she should have been charged with and/or sentenced under the guidelines applicable to a “mixture or substance containing methamphetamine” instead of the guidelines applicable to “actual methamphetamine.” This claim is summarily denied as McRoy pled guilty to conspiring to distribute “2189 grams of methamphetamine, with a purity of approximately 98 %, for a total of 2145 grams of actual methamphetamine. The parties agree that, based upon her own conduct, defendant McRoy is responsible for 2145 grams of actual methamphetamine.” (emphasis supplied) [Doc. # 1348 at 4-5 in No. 4:16CR426 CDP]. When I asked McRoy at her guilty plea hearing whether she understood that she was agreeing to be held accountable for that quantity of actual methamphetamine, she replied, “Yes, ma'am.” [Doc. # 2257 at 12 in No. 4:16CR426 CDP]. McRoy's statements were made to me under oath and cannot be contradicted now. To ...


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