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Reginald Ivy v. United States, 96-1424 (1996)

Court: Court of Appeals for the Eighth Circuit Number: 96-1424 Visitors: 12
Filed: Nov. 25, 1996
Latest Update: Mar. 02, 2020
Summary: _ No. 96-1424 _ Reginald Ivy, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. United States of America, * * [UNPUBLISHED] Appellee. * _ Submitted: November 7, 1996 Filed: November 25, 1996 _ Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. _ PER CURIAM. Reginald Ivy appeals the district court's1 denial of his 28 U.S.C. § 2255 motion. We affirm. In March 1994, Ivy pleaded guilty to being a felon in possession of a firear
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                                    ___________

                                    No. 96-1424
                                    ___________

Reginald Ivy,                            *
                                         *
              Appellant,                 *
                                         *   Appeal from the United States
     v.                                  *   District Court for the
                                         *   Eastern District of Missouri.
United States of America,                *
                                         *        [UNPUBLISHED]
              Appellee.                  *



                                    ___________

                     Submitted:     November 7, 1996

                           Filed:   November 25, 1996
                                    ___________

Before BEAM, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

PER CURIAM.


     Reginald Ivy appeals the district court's1 denial of his 28 U.S.C. §
2255 motion.    We affirm.


     In March 1994, Ivy pleaded guilty to being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1); he was sentenced to thirty
months imprisonment, to be served consecutively to a state sentence for
first-degree assault.      Ivy did not appeal.


     Ivy filed this section 2255 motion, asserting as grounds for
relief (1) his prosecution was unlawful; (2) defense counsel
supplied false information; and (3) the sentence imposed exceeded




     1
      The Honorable Jean C. Hamilton, Chief Judge, United States
District Court for the Eastern District of Missouri.
the maximum sentence authorized.                 The district court granted the
government's       motion    to    dismiss       and   denied    relief    without   an
evidentiary hearing, reasoning that Ivy's claims were procedurally
barred and could not be raised in a section 2255 motion absent a
showing of cause and prejudice or a fundamental miscarriage of
justice.    Ivy appeals.


     This court affirms the summary denial of a section 2255 motion
without an evidentiary hearing only if, upon a de novo review of
the record, the court is persuaded that the motion, files, and
records of the case conclusively show that the movant is not
entitled to relief.         See Holloway v. United States, 
960 F.2d 1348
,
1351 (8th Cir. 1992).


     We    agree    Ivy     is    barred   from    raising      his   sentencing     and
statutory claims in a section 2255 motion.                      See Ramey v. United
States, 
8 F.3d 1313
, 1314 (8th Cir. 1993) (per curiam) (section
2255 not available to correct errors which could have been raised
at trial or on direct appeal, absent showing of cause and actual
prejudice or a fundamental miscarriage of justice); see also United
States v. Ward, 
55 F.3d 412
, 413 (8th Cir. 1995) (all arguments--
including constitutional and jurisdictional ones--should be raised
at trial or on direct appeal to the fullest extent possible;
sentencing issue not constitutional or jurisdictional); Anderson v.
United States, 
25 F.3d 704
, 706 (8th Cir. 1994) (claim that
statutory    elements       of    crime    not     met,   not    constitutional      or
jurisdictional).


     While    a    claim     of    ineffective         assistance     of   counsel   is
cognizable in a section 2255 motion, see United States v. Magee, 
19 F.3d 417
, 420 (8th Cir.), cert. denied, 
115 S. Ct. 343
(1994),
Ivy's claim--which fails to allege how counsel was ineffective--is
too vague and conclusory to merit relief.                    See United States v.

                                           -2-
Robinson, 
64 F.3d 403
, 405 (8th    Cir. 1995) (movant's allegations
of attorney coercion too vague and conclusory to warrant




                                  -3-
evidentiary hearing).


     Accordingly, we affirm the judgment of the district court.


     A true copy.


          Attest:


               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                               -4-

Source:  CourtListener

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