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Fielder v. United States

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

February 19, 2019

TERI FIEDLER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         Teri Fiedler seeks to vacate, set aside or correct her sentence under 28 U.S.C. § 2255. Pursuant to a written plea agreement, Fiedler pled guilty to conspiracy to distribute actual methamphetamine. On October 6, 2017, I sentenced her to a total term of 132 months imprisonment, plus three years of supervised release. Criminal No. 4:16CR426 CDP. Fiedler did not appeal. She then filed a § 2255 motion, alleging the following three grounds for relief:[1]

1) Ineffective assistance of counsel because her attorney failed to object to the calculation of her criminal history points in the Presentence Investigation Report;
2) She should have been charged and/or sentenced for a mixture of methamphetamine rather than actual methamphetamine; and
3) Her Fourth Amendment rights were violated because the government “failed to obtain a warrant from her cellular carrier.”

         I will deny Fiedler'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 Fiedler 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 Two and Three 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 2, Fiedler 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 Fiedler 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.” (emphasis supplied) [Doc. # 1121 at 7 in No. 4:16CR426 CDP]. When I asked Fiedler at her guilty plea hearing whether she agreed “that is how much actual methamphetamine [she was] responsible for, ” she replied, “Yes.” [Doc. # 2289 at 12 in No. 4:16CR426 CDP]. Fiedler's statements were made to me under oath and cannot be contradicted now. To the extent Fiedler is attempting to argue that I should use the mixture guidelines in cases involving actual methamphetamine, I do not find the argument persuasive, especially in this case where I varied downward from the low-end of the advisory guidelines range by 55 months.[3]

         Fiedler's claim in Ground 3 that her fourth amendment rights were violated is also summarily denied. Fiedler complains that the government did not obtain a proper warrant for cell phone records, relying upon the recent United States Supreme Court case Carpenter v. United States, 138 S.Ct. 2206 (2018). In Carpenter, the Supreme Court held that the acquisition of cell phone records under the Stored Communications Act, 18 U.S.C. § 2703(d), is a search under the Fourth Amendment requiring the government to demonstrate probable cause to obtain the records. 138 S.Ct. at 2221-22. Fiedler's reliance on Carpenter is misplaced because the government acquired a Precision Location Warrant for a telephone used by co-defendant Amanda Young[4] and did not obtain any cell phone records under the Stored Communications Act in this case. Carpenter does not apply. Even if it did, Fielder knowingly and voluntarily waived her right to raise this issue in her plea agreement. [Doc. # 1121 at 7 in No. 4:16CR426 CDP]. Grounds 2 and 3 are therefore denied as meritless and procedurally barred because they could have been raised on direct appeal but were not. As Fiedler provides no attempt to allege sufficient cause and prejudice necessary to overcome the procedural default of any of these claims, they will be denied.[5]

         C. Fiedler Did Not Receive Ineffective ...


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