United States District Court, D. Kansas
MEMORANDUM AND ORDER
CARLOS MURGUIA, District Judge.
This case is before the court on defendant Ivory A. Robinson's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 96). Defendant argues that the motion - filed nearly five years after his sentencing - is timely because it was filed within one year of the date on which the facts supporting his claim could have been discovered through due diligence. According to defendant, these purported new facts prove he is "factually innocent of the crime used to enhance his sentence." (Doc. 103 at 5.) Further, defendant argues he was denied his Sixth Amendment right to a trial by jury because the court increased his offense level at sentencing by converting an amount of currency seized from defendant at the time of the arrest into an equivalent amount of cocaine base. Defendant contends that the drug quantity is an element of the crime that must be found by a jury. Finally, defendant claims that the government failed to prove venue was proper at his sentencing.
The government responds that defendant's motion is procedurally barred because it was not timely filed under § 2255(f). Alternatively, the government submits that all issues are inappropriate for collateral review because they should have been raised on direct appeal.
For the reasons set forth below, the court denies defendant's motion.
I. Factual and Procedural Background
In December 2008, defendant pleaded guilty to:
possessing with intent to distribute over five grams of crack cocaine within 1, 000 feet of a school; and
being a felon in possession of a firearm.
When defendant was arrested, police found $1, 520 in the pocket of a jacket that belonged to defendant. The police seized the money. At sentencing, the court found that the money was from drug sales. The court therefore converted the money to its drug equivalency and used it to calculate defendant's offense level. The court sentenced defendant to 110 months in prison.
In November 2012, defendant filed a motion for return of the seized currency. (Doc. 83.) The government filed a response in December 2012 indicating - among other things - that the money may not have belonged to defendant. (Doc. 86 at 2 ("[D]espite Robinson's self-serving statements, the Government is unaware of any evidence that the U.S. currency belonged to the defendant.").) The court denied the motion, reiterating its finding that the money constituted proceeds from drug sales. (Doc. 88 at 2-3.) The Tenth Circuit affirmed this decision in June 2013. (Doc. 95.) On January 6, 2014, defendant filed the instant motion.
II. Legal Standard
The federal habeas statute authorizes motions to vacate, set aside, or correct a sentence filed by:
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....
28 U.S.C. § 2255. In order to prevail on a § 2255 motion, a defendant must show a "fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974). The court must grant an evidentiary hearing on the motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...." 28 U.S.C. § 2255(b). But an evidentiary hearing is not necessary where a defendant's allegations ...