Filed: Mar. 02, 2015
Latest Update: Mar. 02, 2015
Summary: MEMORANDUM AND ORDER JOSEPH F. BATAILLON , Senior District Judge . This matter is before the court on defendant's Motion under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody. Filing No. 165. Under the Rules Governing Section 2255 Proceedings for the United States District Courts ("2255 Rules"), the court must perform an initial review of the defendant's 2255 motion. See 28 U.S.C. 2255, Rule 4(b). The rules provide that unless "it plainly appe
Summary: MEMORANDUM AND ORDER JOSEPH F. BATAILLON , Senior District Judge . This matter is before the court on defendant's Motion under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody. Filing No. 165. Under the Rules Governing Section 2255 Proceedings for the United States District Courts ("2255 Rules"), the court must perform an initial review of the defendant's 2255 motion. See 28 U.S.C. 2255, Rule 4(b). The rules provide that unless "it plainly appea..
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MEMORANDUM AND ORDER
JOSEPH F. BATAILLON, Senior District Judge.
This matter is before the court on defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody. Filing No. 165. Under the Rules Governing Section 2255 Proceedings for the United States District Courts ("2255 Rules"), the court must perform an initial review of the defendant's § 2255 motion. See 28 U.S.C. § 2255, Rule 4(b). The rules provide that unless "it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court," the court must order the United States Attorney to respond to the motion. Id.
After a jury trial, defendant was found guilty of count I of the indictment charging him with felon in possession of a firearm in violation of 18 U.S.C § 922(g)(1). Defendant filed an appeal challenging his conviction and sentencing, denial of motion for departure and variance, objection to the presentence investigation report, the order overruling the motion to set aside a verdict, the order overruling the motion for judgment of acquittal, and the order overruling the motion for new trial. Filing No. 128. On July 17, 2013, the Eighth Circuit affirmed the decision of the district court. Filing No. 150. On September 3, 2013, the Eighth Circuit denied the defendant's petition for rehearing en banc. Filing No. 152. Defendant's writ of certiorari filed with the United States Supreme Court was denied on November 18, 2013. Filing No. 155. On October 7, 2014 this court granted the defendant an extension of time to file his motion pursuant to 28 U.S.C. § 2255 and extended the time to file until January 15, 2015. Filing No. 160.
On initial review, the court finds that "it does ... plainly appear that the defendant is entitled to no relief." The court denies this motion because the § 2255 motion lacks merit.
THEREFORE, IT IS ORDERED:
1. On initial review, the court finds that summary dismissal is appropriate and defendant's motion, Filing No. 165, is denied.
2. A separate judgment will be entered in accordance with this Memorandum and Order.
