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Williams v. United States

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

May 3, 2019

KEVIN KUNLAY WILLIAMS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL UNITED STATES DISTRICT JUDGE.

         Kevin 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].

         Williams 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 court proceedings;
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.

         Williams' 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.

         Discussion

         A. No. Evidentiary Hearing is Required

         The 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.

         B. Ground 2 was Previously Litigated

         “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). 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.

         C. Williams Did Not Receive Ineffective ...


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