Schmitt v. United States of America

Filing 6

ORDER denying 5 Pro Se Motion to Alter or Amend the Order denying her Motion to Vacate Sentence. Signed by Judge Mark W Bennett on 5/27/16. (copy w/nef mailed to petitioner) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SHIRLEY EILEEN SCHMITT,
No. C15-4240-MWB
No. CR12-4076-MWB

Petitioner,
vs.
UNITED STATES OF AMERICA,
Defendant.

ORDER REGARDING
PETITIONER’S PRO SE MOTION
TO ALTER OR AMEND ORDER
DENYING PETITIONER’S MOTION
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE

___________________________
This case is before me on petitioner Shirley Eileen Schmitt’s pro se Motion to Alter
or Amend the November 30, 2015, Order Denying Her Motion to Vacate Sentence (docket
no. 5). In her motion, Schmitt claims that she is entitled to relief because my order
dismissing her pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255 was based on a “misapprehension of fact.” Mot. at 2. In her § 2255 motion,
Schmitt claims that she is entitled to relief because her defense attorney provided
ineffective assistance of counsel by failing to adequately argue Schmitt’s eligibility for
safety-valve relief under 18 U.S.C. § 3553(f). I determined that Schmitt was not entitled
to relief, and summarily dismissed her § 2255 motion with prejudice because the issue of
Schmitt’s eligibility for safety valve relief was raised and rejected on direct appeal. As a
result, she was procedurally barred from raising it again, here because she could not use a
§ 2255 proceeding, in the guise of ineffective assistance of counsel, to relitigate issues
decided adversely to her on direct appeal. See Boeckenhaupt v. United States, 537 F.2d
1182, 1183 (4th Cir. 1976) (stating that a defendant may not “recast under the guise of a
collateral attack, questions fully considered by this court [on direct appeal]”).

After reviewing Schmitt’s motion and the record, I can find no grounds which
warrant modifying my prior order denying Schmitt’s § 2255 motion or the judgment
entered in this case. Therefore, Schmitt’s pro se Motion to Alter or Amend the November
30, 2015, Order Denying Her Motion to Vacate Sentence is denied.
IT IS SO ORDERED.
DATED this 27th day of May, 2016.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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