United States District Court, E.D. Missouri, Eastern Division
JAMES E. BARNES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
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
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.
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.
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
With respect to Barnes' waiver of appeal, the Agreement
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
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.
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."
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."
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.
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 ...