United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
W. SIPPEL UNITED STATES DISTRICT JUDGE.
Williams seeks to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255. On March 29, 2017, Williams was
charged by superseding indictment of being involved in fraud
and immigration offenses. No. 4:17 CR 65 RWS. On July 14,
2017, Williams pled guilty to Counts 3, 5, 6, and 8 of the
superseding indictment. [Doc. # 39 in Case Number 4:17 CR 65
RWS]. October 20, 2017, he was sentenced to a total of 78
months' imprisonment, consisting of 54 months each on
Counts 3, 6, and 8, to be served concurrently, and a term of
24 months on Count 5, to run consecutively. Williams
appealed, and the Eighth Circuit Court of Appeals affirmed
his conviction and sentence. [Doc. # 76 in Case Number 4:17
CR 65 RWS]. Williams petitioned the Eighth Circuit for
rehearing by the panel or rehearing en banc, which was denied
on September 20, 2018. [Doc. # 78 in Case Number 4:17 CR 65
RWS]. The mandate issued on September 27, 2018. [Doc. # 79 in
No. Case Number 4:17 CR 65 RWS].
then filed this § 2255 motion pro se, raising
the following grounds for relief:
1) Ineffective assistance of trial counsel for failing to
object to court proceedings because he was not receiving his
insulin medication and was therefore unable to comprehend
2) His sentence was substantively unreasonable;
3) Ineffective assistance of trial counsel for failing to
object to the imposition of criminal history points for his
1985 conviction; and
4) Ineffective assistance of trial counsel for failing to
object to the use of his 1995 removal from the United States.
second claim for relief was rejected by the Eighth Circuit on
appeal and cannot be relitigated here. Williams'
remaining ineffective assistance of counsel claims are all
meritless. Accordingly, I will deny Williams' motion
without an evidentiary hearing for the reasons that follow.
No. Evidentiary Hearing is Required
records before me conclusively demonstrate that Williams 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.
Ground 2 was Previously Litigated
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). Moreover, “it is well
settled that claims which were raised and decided on direct
appeal cannot be relitigated on a motion to vacate pursuant
to 28 U.S.C. § 2255.” Bear Stops v. United
States, 339 F.3d 777, 780 (8th Cir. 2003) (internal
quotation marks and citation omitted); see also, Thompson
v. United States, 7 F.3d 1377, 1379 (8th Cir. 1993)
(citing United States v. Holtzen, 718 F.2d 876, 878
(8th Cir. 1983)). Here, Williams' claim that his sentence
was substantively unreasonable was considered and rejected by
the Eighth Circuit on appeal, which held: “We conclude
that the district court did not impose an unreasonable
sentence.” [Doc. # 76 in Criminal No. 4: 17 CR 65 RWS].
As such, Ground 2 of Williams' § 2255 motion cannot
be litigated here and is denied.
Williams Did Not Receive Ineffective ...