Cahill v. United States of America

Filing 10

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the mtn. to vacate, set aside or correct sentence is denied. IT IS FURTHER ORDERED that this Court will not issue a certificate of appealability as movant has not made a substantial showing of the denial of a federal constitutional right. A separate jgm. is entered this same date. 1 Signed by District Judge Henry Edward Autrey on 3/9/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
KEVIN CAHILL,
Petitioner,
vs.
UNITED STATES OF AMERICA,

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) Case No: 4:12CV2090HEA
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Respondent.

MEMORANDUM AND ORDER
This matter is before the Court on Kevin Cahill’s Motion to Vacate, Set
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, [Doc. No. 1]. The United
States of America has responded to the motion, pursuant to the Court’s Case
Management Order. For the reasons set forth below, the Motion is denied.
PROCEDURAL HISTORY
A grand jury indicted Movant, charging him in a three count indictment with
one count of possession of cocaine base with intent to distribute, (Count I), one
count of possession of a firearm in furtherance of a drug-trafficking crime, (Count
II), and felon in possession of a firearm, (Count III).
On September 8, 2011, Movant entered a plea of guilty to Counts II and III.
On November 10, 2011, Movant was sentenced to 60 months on Count II and 12
months on Count III to be served consecutively, for a total term of 72 months.

Movant filed this Motion for Post-Conviction Relief pursuant to Title 28
U.S.C. Section 2255 on November 8, 2012.
CLAIM FOR RELIEF
Movant has raised the following grounds for post-conviction relief:
Ground One: Failure to Credit Time in Custody
Ground Two: Double Jeopardy
STANDARD FOR RELIEF UNDER 28 U.S.C. 2255
A federal prisoner seeking relief from a sentence under 28 U.S.C. § 2255 on
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.” 28 U.S.C. § 2255. In order to
obtain relief under § 2255, the movant must allege a violation constituting “‘a
fundamental defect which inherently results in a complete miscarriage of justice.’”
United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States
v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
Claims brought under § 2255 may also be limited by procedural default. A
movant “cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255
motion if the issue could have been raised on direct appeal but was not.” Anderson
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v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v. United States,
975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even constitutional or
jurisdictional claims not raised on direct appeal cannot be raised collaterally in a §
2255 motion “unless a petitioner can demonstrate (1) cause for the default and
actual prejudice or (2) actual innocence.” United States v. Moss, 252 F.3d 993,
1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
DISCUSSION
Right to Evidentiary Hearing
The Court must hold an evidentiary hearing to consider claims in 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.’” Shaw v. United States, 24 F.3d
1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255).
Thus, a movant is entitled to an evidentiary hearing “‘when the facts alleged, if
true, would entitle [the movant] to relief.’” Payne v. United States, 78 F.3d 343,
347 (8th Cir. 1996) (quoting Wade v. Armontrout, 798 F.2d 304, 306 (8th Cir.
986)). The Court may dismiss a claim “without an evidentiary hearing if the claim
is inadequate on its face or if the record affirmatively refutes the factual assertions
upon which it is based.” Shaw, 24 F.3d at 1043 (citing Larson v. United States, 905
F.2d 218, 220-21 (8th Cir. 1990)). Since the Court finds that Movant’s claim can

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be conclusively determined based upon the parties’ filings and the records of the
case, no evidentiary hearing will be necessary.
Ground One: Failure to credit jail time
Petitioner claims that he has not received credit for time he spent in custody in
federal custody. Respondent is correct that this issue must be raised in a petition
for writ of habeas corpus under 28 U.S.C. § 2241. Matheny v. Morrison, 307 F.3d
709, 711 (8th Cir. 20002). As such, pursuant to 28 U.S.C. § 2241, the proper court
is the court sitting in the district in which Petitioner is housed. Petitioner is not
being held in this district, and therefore, this Court is without jurisdiction to
consider Petitioner’s claim. Ground one is denied.
Grounds Two: Double Jeopardy
Movant argues that he was prosecuted twice for the same firearm. Respondent
is correct. Sections 922(g) and 924(c) require proof of different facts, and as such,
are not the same offense. Blockburger v. United States, 284 U.S. 299, 304

(1932); United States v. Howe, 538 F.3d 820, 824 (8th Cir. 2008) (quoting
Brown v. Ohio, 432 U.S. 161, 166 (1977)). Accordingly, Petitioner’s sentence
on these charges does not offend the Double Jeopardy Clause.
CONCLUSION

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Based upon the foregoing analysis, Movant has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief.
CERTIFICATE OF APPEALABILITY
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or
Correct Sentence, [Doc. No. 1], is denied.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a

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federal constitutional right.
A separate judgment is entered this same date.
Dated this 10th day of March, 2016.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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