Reid v. USA

Filing 7

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that Movant's Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1 ] is DENIED. Movant's Motion is DISMISSED, with pr ejudice. IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability as to any claim raised in Movant's 2255 Motion. A final judgment will accompany this memorandum and order. Signed by District Judge E. Richard Webber on 12/7/16. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CARMAINE REID,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:16CV01194 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Movant Carmaine Reid=s Motion under 28 U.S.C.
' 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1].
The Government has filed its Response to the Motion [ECF No. 5]. Movant has filed his Reply
to the Government’s Response [ECF No. 6].
I. BACKGROUND AND PROCEDURAL HISTORY
On April 23, 2014, a federal grand jury sitting in St. Louis charged Movant with one
count of being a Felon in Possession of a Firearm, in violation of 18 U.S.C. ' 922(g)(1) and 18
U.S.C. ' 924(a)(2). United States v. Reid, No. 4:14CR121 ERW. When Movant committed this
offense, he was serving a period of supervised release in Case No. 4:05CR3481 JCH from the
United States District Court in the Eastern District of Missouri. That term of supervision was
revoked and Movant was sentenced to 24 months in the custody of the Bureau of Prisons
(“BOP”).
On April 22, 2015, Movant pled guilty to one count of being a Felon in Possession of a
Firearm. Following the plea, a Presentence Investigation Report (“PSR”) was prepared by
1 

Probation. The PSR reflected that Movant’s criminal history score was 12, which established a
criminal history category of V [Case 4:14CR121 ERW, ECF No. 97 at 13]. According to the
PSR, Movant’s criminal history included numerous theft-related convictions, resisting-arrest
convictions, gun-related convictions, and drug-related convictions. There are two prior
convictions in particular that are pertinent to Movant’s ' 2255 Motion. First, on April 13, 2005,
Movant was arrested and charged in the Circuit Court of St. Louis with Possession of a
Controlled Substance, Unlawful Use of a Weapon—Carrying a Concealed Weapon, Resisting
Arrest and Possession of Marijuana. Movant was sentenced on March 27, 2006. The PSR
assessed three criminal history points for this prior sentence. Secondly, several months later,
Movant was charged in the United States District Court-Eastern District of Missouri with being a
Felon in Possession of a Firearm [4:05CR3481 JCH]. He was sentenced on November 18, 2005,
to 95 months’ imprisonment and a two-year period of supervised release. Movant was assessed
three criminal history points for this sentence. Movant raised no objections to the PSR.
On July 29, 2015, Movant appeared before this Court for sentencing. Movant received a
35-month term of imprisonment. The judgment called for Movant’s sentence to run concurrently
with the federal sentence he was already serving in 4:05CR3481 JCH for the revocation of his
supervised release. Movant did not directly appeal his sentence, but instead filed the instant
Motion Under § 2255 [ECF No. 1]. Movant has asserted two grounds for relief. Movant first
alleges that the PSR’s calculation of his criminal history score was incorrect as he was
erroneously assessed three criminal history points. Next, Movant further alleges the BOP did not
properly calculate his jail time credit.
II. LEGAL STANDARD FOR MOTIONS UNDER 28 U.S.C. ' 2255

2 

A federal prisoner who seeks relief under 28 U.S.C. ' 2255 on grounds Athe 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(a). In order
to obtain relief under ' 2255, the movant must establish a constitutional or federal statutory
violation constituting Aa 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 be limited by procedural default. A movant Acannot
raise a nonconstitutional or nonjurisdictional issue in a ' 2255 motion if the issue could have
been raised on direct appeal but was not.@ Anderson v. United States, 25 F.3d 704, 706 (8th Cir.
1994). Claims, including those concerning constitutional and jurisdictional issues, unraised on
direct appeal, cannot subsequently be raised in a ' 2255 motion unless the movant establishes
A(1) cause for 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, 621-22 (1998)).
III. RIGHT TO EVIDENTIARY HEARING
If the movant=s claims are not procedurally barred, the Court must hold an evidentiary
hearing to consider the claims A[u]nless the motion and files and records of the case conclusively
show that the prisoner is entitled to no relief.@ 28 U.S.C. ' 2255(b); see also Shaw v. United
States, 24 F.3d 1040, 1043 (8th Cir. 1994). A movant is entitled to an evidentiary hearing Awhen
the facts alleged, if true, would entitle [the movant] to relief.@ Payne v. United States, 78 F.3d
343, 347 (8th Cir. 1996) (citation omitted). However, a court may dismiss a claim without a

3 

hearing Aif 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.
IV. DISCUSSION
Movant alleges two grounds for relief in his Motion. In his first claim, Movant challenges
his criminal history score under the United States Sentencing Commission, Guidelines Manual §
4A1.2(a)(2). Specifically, Movant argues he was erroneously assessed three additional criminal
history points in his PSR. Movant maintains that two of his prior sentences (set forth at ¶¶ 36-37
of the PSR) were counted separately and assessed three points each instead of being properly
treated as a single sentence pursuant to § 4A1.2(a)(2). Movant, however, did not object to his
PSR or directly appeal his sentence. As such, his claim is procedurally defaulted.
A petitioner cannot raise a nonconstitutional or nonjurisdictional issue in a ' 2255 motion
if the issue could have been raised on direct appeal but was not. See Shyrock v. United States,
No. 11-5005-01-CR-SW-RED, 2013 WL 604246, at *1 (W.D. Mo. Feb. 19, 2013). Moreover,
when a petitioner raises a claim, except for an ineffective assistance of counsel claim, for the first
time in a § 2255 motion, he must show cause and prejudice in order to excuse his procedural
default. United States v. Collier, 585 F.3d 1093, 1097 (8th Cir. 2009); Sutton v. United States,
No. 1:08CV175RWS, 2012 WL 592335, at *9 (E.D. Mo. Feb. 23, 2012).
Here, Movant cannot demonstrate the required prejudice to overcome his procedural
default because his claim is meritless. Contrary to Movant’s allegations, his prior sentences, set
forth in ¶¶ 36-37 of the PSR, were properly counted as separate sentences. Under § 4A1.2(a)(2):
If the defendant has multiple prior sentences, determine whether those sentences
are counted separately or treated as a single sentence. Prior sentences always are
counted separately if the sentences were imposed for offenses that were separated
by an intervening arrest (i.e., the defendant is arrested for the first offense prior to
committing the second offense). If there is no intervening arrest, prior sentences
are counted separately unless (A) the sentences resulted from offenses contained
4 

in the same charging instrument; or (B) the sentences were imposed on the same
day. Treat any prior sentence covered by (A) or (B) as a single sentence.
It is undisputed by the parties that the prior sentences were not separated by an intervening
arrest. Nevertheless, even though there was no intervening arrest, the sentences should still be
counted separately under§ 4A1.2(a)(2) as: A) they did not result from offenses contained in the
same charging instrument, nor B) were the sentences imposed on the same day. Thus, the Court
finds the record refutes Movant’s claim of error in his first ground, and he is not entitled to relief.
Movant next argues the BOP has not given him jail credit from May 9, 2014, through
July 29, 2015. On May 9, 2014, Movant’s supervised release in case 4:05CR3481 JCH was
revoked due to his commission of the instant offense. The court imposed a 24-month term of
imprisonment, which Movant began serving immediately. On July 29, 2015, Movant was
sentenced in this case to a 35-month term of imprisonment to run concurrently with the term he
had been serving in 4:05CR348-1 JCH since May 9, 2014.
Movant seeks an order from this Court directing the BOP to grant him a credit for the
time period between May 9, 2014, through July 29, 2015. In filing a § 2255 motion, a federal
prisoner asks the court to correct a wrongful sentence. Movant must demonstrate his sentence is
wrongful and the result of injustice. Gomez, 326 F.3d at 974. Movant’s Motion seeks a change
in computation of his sentence; it does not argue the sentence itself is the result of injustice.
Thus, Movant’s claim should not be brought under § 2255. Bell v. U.S., 48 F.3d 1042, 1043 (8th
Cir. 1995) (A prisoner’s claim of improper denial of jail time credit cannot be brought under §
2255, because he is “not contending that his conviction is illegal, he is only contesting the
execution of his sentence.”). Moreover, district courts lack authority to credit a prisoner’s
sentence. U.S. v. Wilson, 503 U.S. 329, 333 (1992). Rather, “the Attorney General, through the

5 

Bureau of Prisons, has the responsibility for computing a sentencing credit[.]” U.S. v. Tindall,
455 F.3d 885, 888 (8th Cir. 2006).
Accordingly, Movant’s claim falls beyond the scope of a § 2255 motion.

Instead,

Movant may properly bring his claim before the BOP and exhaust his administrative remedies
pursuant to 28 C.F.R. §§ 542.10 through 542.16. Id. After exhausting his administrative
remedies, a prisoner may seek relief under 28 U.S.C. § 2241, by filing a motion with the federal
court located in the district where he is incarcerated. Matheny v. Morrison, 307 F.3d 709, 711
(8th Cir. 2002). Here, not only is it unclear whether Movant exhausted his administrative
remedies,1 but Movant is not incarcerated in the Eastern District of Missouri—he is incarcerated
at FCI Forest City Medium, which is located in the Eastern District of Arkansas. Thus, this
Court lacks Jurisdiction to grant his request.2 Movant’s claims under his § 2255 Motion will be
denied.
V.

CERTIFICATE OF APPEALABILITY
The Court finds Movant has not made a substantial showing of the denial of a

constitutional right, as is required before a certificate of appealability can issue. See Tiedeman v.
Benson, 122 F.3d 518, 522 (8th Cir. 1997); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997)
(explaining that a “substantial showing” is a showing that the “issues are debatable among
reasonable jurists, a court could resolve the issues differently, or the issues deserve further
proceedings”). Therefore, the Court shall not issue a certificate of appealability as to any claims
in Movant’s Motion.

1

According to Movant’s Reply to the Government’s Response to his § 2255 Motion, Movant submitted a complaint
alleging his sentence was miscalculated to the warden, which was denied. Movant appealed the warden’s denial to
the regional director at the BOP. The regional director denied Movant’s appeal, and informed him that he had 30
days to appeal his decision. The record contains no evidence Movant took this step in fully exhausting his
administrative remedies.
2
Movant has previously requested the same relief in the District Court for the Eastern District of Missouri from
Judge Hamilton, but his motion was denied due to lack of jurisdiction [Case 4:05CR348 JCH, ECF No. 53].

6 

VI. CONCLUSION
Movant=s asserted grounds of relief are clearly inadequate on their face and refuted by the
record in this case. Therefore, an evidentiary hearing is not required for any of his claims of
error. Movant has failed to demonstrate that his sentence was imposed in violation of the
Constitution or laws of the United States, or that the Court was without jurisdiction to impose the
sentence, or that the sentence was in excess of the maximum authorized by the law. Thus,
Movant=s ' 2255 claims fail, and he is not entitled to the relief he seeks.
Accordingly,
IT IS HEREBY ORDERED that Movant’s Motion Under 28 U.S.C. ' 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1] is DENIED.
Movant=s Motion is DISMISSED, with prejudice.
IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability
as to any claim raised in Movant=s ' 2255 Motion.
A final judgment will accompany this memorandum and order.
So Ordered this 7th day of December, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

7