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United States v. Nietfeld

United States District Court, D. Kansas

December 23, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
TARAH NIETFELD, Defendant/Petitioner.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         In 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.

         I. Factual and Procedural Background

         On 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.

         II. Legal Standard

         Under 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 the sentence.

         According 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.

         The 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.”[1] The petitioner must allege facts that, if proven, would warrant relief from his conviction or sentence.[2]

         An 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.[3]

         III. Analysis

         A. United States v. Davis

         Nietfeld argues that the Court should vacate her sentence because the Supreme Court's recent decision in United States v. Davis[4] 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 ...


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