United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
2017, Tarah Nietfeld pleaded guilty to one count of
possession of a firearm in furtherance of a drug trafficking
crime, for which this Court sentenced her to a prison term of
90 months. This matter comes before the Court on
Nietfeld's Motion collaterally attacking that sentence.
For the reasons explained below, the Court denies
Nietfeld's Motion to Vacate under 28 U.S.C. § 2255
(Doc. 104). Furthermore, the Court denies the Motion without
an evidentiary hearing since the Motion, files, and record of
the case conclusively show that Nietfeld is not entitled to
relief under § 2255.
Factual and Procedural Background
January 12, 2016, a grand jury indicted Nietfeld and
co-defendant Joshua Scott with several counts related to
firearms and controlled substance offenses. On January 23,
2017, Nietfeld entered a plea of guilty to Count Twelve of
the indictment-possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. §
924(c). This Court sentenced Nietfeld on April 10, 2017, to a
controlling term of imprisonment of 90 months. Nietfeld filed
the present motion on July 19, 2019, asking the Court to
vacate her sentence pursuant to 28 U.S.C. § 2255.
28 U.S.C. § 2255(a):
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, may move the court
which imposed the sentence to vacate, set aside or correct
to Rule 4(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts:
[T]he judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion . .
. . If the motion is not dismissed, the judge must order the
United States attorney to file an answer, motion, or other
response within a fixed time, or to take other action the
judge may order.
court must hold an evidentiary hearing on a § 2255
motion “[u]nless the motion and the files and records
of the case conclusively show that the prisoner is entitled
to no relief.” The petitioner must allege facts that, if
proven, would warrant relief from his conviction or
evidentiary hearing is not necessary where a § 2255
motion contains factual allegations that are contradicted by
the record, inherently incredible, or when they are
conclusions rather than statements of fact.
United States v. Davis
argues that the Court should vacate her sentence because the
Supreme Court's recent decision in United States v.
Davis held 18 U.S.C. § 924(c)(3)(B)
unconstitutional for vagueness. “That statute
authorizes heightened criminal penalties for using or
carrying a firearm ‘during and in relation to,' or
possessing a firearm ‘in furtherance of,' any
federal ‘crime of violence or drug ...