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Barnes v. United States

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

August 20, 2019

JAMES E. BARNES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 filed on July 14, 2014. The United States of America filed its response on May 15, 2019. For the reasons set forth below the Motion will be denied and no hearing will be granted.

         Procedural History

         On July 14, 2014, Petitioner filed his Motion to Vacate, Set Aside or Correct Sentence pursuant to Title 28, United States Code, Section 2255. On August 8, 2014, Petitioner moved to withdraw his Section 2255 motion, which was granted by the Court. Petitioner thereafter sought permission with the United States Court of Appeals for the Eighth Circuit to file a successive Section 2255 motion. On July 21, 2016, the Eighth Circuit denied the motion and ordered this Court to consider the initial Section 2255 Motion. On April 15, 2019, this Court ordered the United States to show cause why the relief requested in Barnes' initial Section 2255 motion should not be granted.

         On May 9, 2012, Petitioner was charged by a federal grand jury with conspiring with a co-defendant to distribute and possess with intent to distribute in excess of 28 grams of cocaine base (Count One); distribution of a quantity of cocaine base on September 28, 2010 (Count Two); and distribution of in excess of 28 grams of cocaine base on October 6, 2010 (Count Three), in violation of Title 21, United States Code, Section 841(a)(1). Petitioner waived in writing and orally his right to file pre-trial motions. Accepting the waiver, Judge David D. Noce found:

At the evidentiary hearing, defendant James Barnes appeared in open court, with counsel, and advised the undersigned that he had decided not to raise any issues by way of pretrial motions. Here thereupon in open court under oath voluntarily waived his rights to file pretrial motions and to have a pretrial hearing in this case at this time and in the future.

         Pursuant to a Guilty Plea Agreement (the "Agreement"), Petitioner pleaded guilty to the conspiracy charged in Count One on July 19, 2012. The parties agreed that Petitioner was accountable for between 28 grams and 112 grams of cocaine base, resulting in a Base Offense Level of 26 pursuant to United States Sentencing Guidelines ("U.S.S.G.") Section 2D1.1(c)(7). Petitioner expressly understood that if he were deemed to be a Career Offender under Section 4B1.1, his Base Offense Level would be 34. Petitioner further agreed that he had "discussed the provisions of 2D 1.1 and 4B1.1 over with his attorney and . . . under [stood] the affect these provisions have on [his] Guidelines range of imprisonment.

With respect to Barnes' waiver of appeal, the Agreement provided:
A. Appeal: The Defendant has been fully apprised by defense counsel of the Defendant's rights concerning appeal and fully understands the right to appeal the sentence under Title 18, United States Code, Section 3742.
i. Non-Sentencing Issues: The parties waive all rights to appeal all non-jurisdictional, non-sentencing issues, including, but not limited to, any issues relating to pretrial motions, discovery and the guilty plea.
ii. Sentencing Issues: In the event the Court accepts the plea, accepts the U.S. Sentencing Guidelines Total Offense Level agreed to herein, and, after determining a Sentencing Guidelines range, sentences the Defendant within or below that range, then, as part of this agreement, the Defendant hereby waives all rights to appeal all sentencing issues other than Criminal History. Similarly, the United States hereby waives all rights to appeal all sentencing issues other than Criminal History, provided the Court accepts the plea, the agreed Total Offense Level and sentences the Defendant within or above that range.

         Petitioner also waived "all rights to contest the conviction or sentencing in any post-conviction proceeding, including one pursuant to Title 28, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel. Petitioner acknowledged in the Agreement that he was waiving, among other things, his right "to file pretrial motions, including motions to suppress or exclude evidence."

         The Agreement further provided that Petitioner was "fully satisfied with the representation received" from his defense counsel Kristy Ridings, and that Ms. Ridings had "completely and satisfactorily explored all areas which he ha[d] requested relative to the United States' case and any defenses." Petitioner also acknowledged entering into the Agreement "voluntarily" and of his "own free will."

         On June 5, 2013, a Presentence Investigation Report ("PSR") was submitted. Consistent with the Agreement, the PSR calculated a Base Offense Level of 26 pursuant to Section 2D 1.1(c)(7). However, because Petitioner had "at least two prior felony convictions for controlled substance offenses," he was classified as a Career Offender pursuant to Section 4B1.1, resulting in a Base Offense Level of 34. With a Total Offense Level of 31 and a Criminal History Category VI, the guidelines imprisonment range was 188 to 235 months. Petitioner did not file or articulate any objections to the PSR.

         On July 15, 2013, the Court sentenced Petitioner to a term of 94 months. A timely pro se notice of appeal was filed on July 29, 2013. However, on November 12, 2013, Ms. Ridings filed a motion to dismiss the appeal. U.S. v. Barnes, No. 13-2694. Nevertheless, on July 15, 2014, Ms. Ridings filed mi Anders brief and subsequently moved to withdraw as appointed counsel. In the brief, Ms. Ridings raised the following issues on behalf of Barnes: (1) the District Court abused its discretion in sentencing Petitioner to 94 months imprisonment; (2) defense counsel was ineffective for failing to file motions under Amendment 750 pursuant to Amendment 759; and (3) defense counsel was ineffective for failing to file pretrial motions suppressing evidence obtained against Barnes using GPS tracking. On August 8, 2014, Petitioner filed apro se motion to withdraw his appeal. He attached to his motion an affidavit stating that "after consultation with ...


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