United States District Court, D. Kansas
MEMORANDUM AND ORDER
Kathryn H. Vratil, United States District Judge.
5, 2009, the Court sentenced defendant to 110 months in
prison. On October 28, 2011, the Court reduced
defendant's sentence to 77 months under Amendment 706 to
the Sentencing Guidelines. This matter is before the Court on
defendant's Motion Pursuant To 28 U.S.C. § 2255
To Vacate And Set Aside My Revocation Sentence Of
Imprisonment Because It Is Unconstitutional (Doc. #149)
filed July 15, 2019. For reasons stated below, the Court
overrules defendant's motion and denies a certificate of
November 25, 2008, pursuant to a plea agreement, defendant
pled guilty to aiding and abetting Lamonte Ephriam to possess
with intent to distribute more than five grams of cocaine
base within 1, 000 feet of a public elementary school in
violation of 21 U.S.C. §§ 841(a)(1) and 860.
See Petition To Enter Plea Of Guilty And Order Entering
Plea (Doc. #13).
total offense level was 28, with a criminal history category
IV, resulting in a guideline range of 110 to 137 months. The
Court sentenced defendant to 110 months in prison. See
Judgment In A Criminal Case (Doc. #37) filed May 6,
2009. Defendant did not appeal.
August 9, 2010, the Court overruled defendant's pro se
motion to vacate his sentence under 28 U.S.C. § 2255.
See Memorandum And Order (Doc. #78).
November 5, 2018, the Court revoked defendant's
supervised release based on his admitted marijuana use and
association with a person engaged in criminal activity.
See Judgment In A Criminal Case (Doc. #147). The
Court sentenced defendant to 24 months in prison. Defendant
did not appeal.
15, 2019, defendant filed the instant motion to vacate his
sentence on supervised release. Defendant argues that his
sentence is unconstitutional because he did not receive a
jury trial that established his guilt beyond a reasonable
standard of review of Section 2255 petitions is quite
stringent. The Court presumes that the proceedings which led
to defendant's conviction were correct. See Klein v.
United States, 880 F.2d 250, 253 (10th Cir. 1989). To
prevail, defendant must show a defect in the proceedings
which resulted in a “complete miscarriage of
justice.” Davis v. United States, 417 U.S.
333, 346 (1974).
Procedural Bar - Failure To Appeal
government correctly notes, defendant's challenge to the
constitutionality of Section 3582(e)(3) is barred because he
did not raise it on direct appeal. See
Government's Response In Opposition To
Defendant's Motion To Vacate And Set Aside Revocation
Sentence (Doc. #151) filed August 23, 2019 at 6-8.
Defendant did not appeal his revocation sentence, and Section
2255 is not available to test the legality of matters which
should have been raised on appeal. United States v.
Allen, 16 F.3d 377, 378 (10th Cir. 1994); see United
States v. Bolden, 472 F.3d 750, 751 (10th Cir. 2006)
(Section 2255 petition not appropriate vehicle to raise
issues that should have been raised on direct appeal).
is precluded from raising in a Section 2255 petition issues
which were not raised on direct appeal unless he can show
cause for his procedural default and actual prejudice
resulting from the alleged errors, or can show that a
fundamental miscarriage of justice will occur if his claims
are not addressed. Allen, 16 F.3d at 378. Defendant
has not satisfied either of these exceptions.
has not filed a reply or responded to the government's
assertion that his claim is procedurally barred. In his
motion, defendant has not asserted grounds that would
constitute cause for his procedural default. Likewise,
defendant's motion does not assert “prejudice,
” i.e. that the alleged errors worked to his
actual and substantial disadvantage, infecting his entire
sentence with error of constitutional dimensions. United
States v. Frady, 456 U.S. 152, 170 (1982). Finally, the
Court finds no basis to find that defendant has satisfied the
exception for a “fundamental miscarriage of
justice.” The Supreme Court has held that this
exception applies only if one is actually innocent. See
Bousley v. United States, 523 U.S. 614, 623 (1998).
Defendant has not shown that he is actually innocent of the
original charges or the supervised release violations.
Therefore, he cannot establish ...