Erickson v. United States of America

Filing 37

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE; granting 32 Motion to Dismiss for Failure to State a Claim; granting 32 Motion to Dismiss for Lack of Jurisdiction. Signed by U.S. District Judge Karen E. Schreier on 8/1/2019. (CLR)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ROBERT L. ERICKSON,

3:16-CV-03015-KES

Movant,
vs.
UNITED STATES OF AMERICA,

ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR CORRECT
SENTENCE

Respondent.
Petitioner, Robert L. Erickson, moves to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Docket 1. 1 The government opposes the
motion and moves to dismiss without holding an evidentiary hearing. Docket
32. For the following reasons, the court grants the government’s motion and
dismisses Erickson’s petition.
BACKGROUND
A more detailed recitation of the facts can be found in the Eighth Circuit
Court of Appeals’ consideration of Erickson’s direct appeal. United States v.
Erickson, 610 F.3d 1049, 1051-52 (8th Cir. 2010). The facts most relevant to
the claims at hand are as follows.

Within this opinion, the court cites to documents in Erickson’s civil habeas
case by citing the court’s docket number for that document. The court will cite
to “Cr.” when citing to documents filed in Erickson’s criminal case found at
3:08-CR-30009-KES-01.
1

Erickson faced five charges of assault stemming from “two incidents that
occurred at Sherry Erickson’s residence in Mission, South Dakota, between
approximately November or December 2007 and January 2, 2008.” Id. at 1051.
On an evening in November or December 2007, Erickson and his girlfriend,
Kendra Small Bear, were drinking at Sherry Erickson’s residence. Id. An
argument and a physical altercation ensued in an alley near the residence. Id.
Erickson poked “Small Bear in the ear and stabbed her in the leg” with a knife.
Id.
The second incident began on January 1, 2008, when Erickson attended
a party at Sherry Erickson’s residence. Id. At about 3:00 a.m. on January 2,
Erickson began to argue with Anthony Kitteaux. Id. Erickson exited the
residence to a front porch. Id. When Kitteaux followed Erickson and began to
pull back a blanket separating the porch from the residence, Erickson slashed
him across the face with a knife. Id. Eli Antoine, who had been inside the
residence, then moved to the door. Id. Erickson slashed him as well, slicing the
palm of Antoine’s left hand and lacerating tendons and nerves. Id.
Erickson was charged with three counts of assault with a dangerous
weapon. Id. Also, he was charged with two counts of assault resulting in
serious bodily injury in connection with the January incident. Id. All offenses
were joined in a single trial, and the district court denied Erickson’s motion to
sever. Id. at 1051-52. The jury found Erickson guilty of all four counts related
to his stabbings of Kitteaux and Antoine but only found him guilty of the lesser
included offense of simple assault related to the stabbing of Small Bear. Id. at
2

1052. Erickson was sentenced to 110 months in custody on each charge of
assault committed against Antoine and 360 months in custody on each charge
of assault committed against Kitteaux. Cr. Docket 138 at 2. He was also
sentenced to six months in custody for his assault of Small Bear. Id. All
sentences were to run concurrently. Id. The court imposed a fine of $500 on
each count. Id. at 5.
On direct appeal, Erickson argued that the court erred in admitting
hearsay testimony and in refusing to sever the charge stemming from the
assault of Small Bear. Erickson, 610 F.3d at 1050. On July 10, 2010, the
Eighth Circuit Court of Appeals affirmed the court’s decision on both issues,
finding that any hearsay that had been admitted was harmless error and that
the district court did not abuse its discretion in denying the motion to sever. Id.
at 1054, 1056.
Erickson filed a pro se motion to extend the deadline to file a § 2255
petition on July 15, 2011, alleging that discovery had been withheld from him.
Cr. Docket 165. The court denied this motion for lack of jurisdiction. Cr.
Docket 166. Erickson then filed a pro se § 2255 petition on April 4, 2016,
alleging five grounds for relief. Docket 1 at 5-12. He alleged that his Sixth,
Eighth, and Fourteenth Amendment rights were violated under Alleyne v.
United States, 570 U.S. 99 (2013). Id. at 5-6. He alleged that his sentence
violated the Due Process Clause of the Constitution, citing Johnson v. United
States. Id. at 6-8. Erickson also alleged that his trial and appellate counsel
were ineffective in violation of the Sixth Amendment for several reasons,
3

including failure to object to prosecutorial misconduct at grand jury hearings,
failure to challenge the threatening of witnesses, failure to attempt to access
jail phone records, comments made by defense counsel that revealed her racial
bias, failure to object to double jeopardy, and failure to raise sufficient evidence
of actual innocence on direct appeal. Id. at 8-11; Docket 35 at 11. Last,
Erickson asserted his innocence as a claim. Docket 1 at 8, 10.
Erickson was appointed an attorney, who filed a voluntary dismissal of
his claims after the decision in Beckles v. United States, which rendered
Johnson inapplicable to Erickson. Docket 16; see also Beckles v. United States,
137 S. Ct. 886, 890 (2017) (holding that the Federal Sentencing Guidelines are
not subject to vagueness challenges under the Due Process Clause). After this
dismissal was granted, Erickson filed a pro se motion to reopen time to file a
notice of appeal. Docket 18. Erickson’s motion was granted, and the district
court issued a certificate of appealability on the issue of whether the court
erred in dismissing the additional claims other than the Johnson claim.
Dockets 24, 25. The Eighth Circuit then vacated the dismissal and remanded
Erickson’s § 2255 petition to the district court to proceed on the remaining
claims. Docket 29.
LEGAL STANDARD
A § 2255 motion is the “statutory analogue of habeas corpus for persons
in federal custody.” Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir.
1987). A federal prisoner may seek relief from his sentence on the grounds that
“the sentence was imposed in violation of the Constitution or laws of the United
4

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[.]” § 2255(a); see also Hill v. United States,
368 U.S. 424, 426-27 (1962). Relief may be granted under § 2255 only for
“transgressions of constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and, if uncorrected, would result in
a complete miscarriage of justice.” Walking Eagle v. United States, 742 F.3d
1079, 1081-82 (8th Cir. 2014) (internal quotation omitted).
DISCUSSION
I.

Sixth and Fourteenth Amendment Sentencing Claims
Erickson alleges that his Sixth and Fourteenth Amendment rights

were violated when the court issued a thirty-year sentence after his conviction.
Docket 1 at 5. Alleyne held that “any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury.” 570 U.S. at 103.
Erickson initially argued that his sentence, which relied on factual
determinations that increased his mandatory minimum period of incarceration,
violated his Sixth Amendment right to a jury and his Fourteenth Amendment
right to due process. Docket 1 at 5. Later, Erickson acknowledged in a brief
that the Eighth Circuit has held that the ruling in Alleyne does not apply
retroactively and that he is not entitled to relief under Alleyne. Docket 35 at 78; see also Walker v. United States, 810 F.3d 568, 575 (8th Cir. 2016) (“We now
join those circuit courts holding that even if Alleyne announced a new
constitutional rule, that rule does not apply retroactively on collateral review.”).
5

Erickson was sentenced in 2009, seven years before Alleyne. Cr. Docket 138.
Thus, Erickson has no possible relief on these grounds.
II.

Eighth Amendment Claim
Erickson alleges that his Eighth Amendment right to be free of cruel and

unusual punishment was violated because only a jury could impose a thirtyyear sentence. Docket 1 at 6. Erickson repeats his argument under Alleyne
here. Id. Walker precludes this claim as well. See Walker, 810 F.3d at 575.
Erickson also makes a separate argument under the Eighth Amendment,
but this claim is untimely. A § 2255 petition has a one-year statute of
limitations. 28 U.S.C. § 2255(f). Erickson has not been prevented from making
this motion, does not assert a right newly recognized by the United States
Supreme Court, and makes no showing that this claim relies on facts that
could not be discovered through due diligence until a date later than when this
ruling became final. See § 2255(f)(2)-(4). Thus, the statute of limitations began
to run ninety days after the Eighth Circuit Court of Appeals’s ruling became
final. § 2255(f)(1); see also United States v. Hernandez, 436 F.3d 851, 856 (8th
Cir. 2006) (recognizing that a conviction becomes final ninety days after the
Eighth Circuit’s ruling on direct appeal).
The Eighth Circuit Court of Appeals issued its formal mandate on August
4, 2010. Cr. Docket 164. As a result, the ruling became final on November 2,
2010, and the claim was barred by the one-year limit on November 2, 2011.
Erickson did file a pro se motion to extend the deadline to file a § 2255 petition
on July 15, 2011, but that motion did not include any allegation of an Eighth
6

Amendment violation. Cr. Docket 165. The issue was first raised in Erickson’s
§ 2255 motion filed on April 4, 2016. Docket 1 at 6.
Alternatively, Erickson relies on Montgomery v. Louisiana, 136 S. Ct. 718,
736 (2016), which afforded retroactive collateral review to certain petitioners.
Docket 1 at 6. Although Montgomery was decided by the Supreme Court within
a year of Erickson’s 2016 petition, it only applied to juveniles convicted of
homicide offenses and subject to mandatory life sentences. See Montgomery,
136 S. Ct. at 725. Thus, it does not provide Erickson with a newly recognized
right under § 2255(f)(3), and Erickson’s Eighth Amendment claim is untimely.
Additionally, in Erickson’s most recent brief, he admits that the Eighth
Amendment issue is not timely before this court. Docket 35 at 9.
III.

Ineffective Assistance of Counsel Claims
Erickson alleges various actions of his trial and appellate

counsel constituted ineffective assistance of counsel in violation of his Sixth
Amendment rights. Summarized, Erickson makes six allegations:
1. Failure of trial counsel to object to prosecutorial misconduct at
grand jury hearings.
2. Failure of trial counsel to challenge the threatening of witnesses.
3. Failure of trial counsel to attempt to access jail phone records.
4. Comments made by trial counsel that revealed her racial bias.
5. Failure of trial counsel to object to double jeopardy.
6. Failure of appellate counsel to raise sufficient evidence of actual
innocence on direct appeal.
Docket 1 at 8-11; Docket 35 at 11.
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A. Legal Standard for Ineffective Assistance of Counsel Claims
To establish ineffective assistance of counsel, a petitioner must meet the
two-pronged standard articulated by the Supreme Court in Strickland v.
Washington. See 466 U.S. 668, 687 (1984). “First, the [petitioner] must show
that counsel’s performance was deficient.” Id. This “performance prong”
requires the petitioner to show that counsel’s representation “fell below an
objective standard of reasonableness.” Id. at 688. To show deficiency, the
petitioner must show “that counsel made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. at 687. This court must assess “whether counsel’s assistance
was reasonable considering all the circumstances.” Id. at 688.
There is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the [petitioner] must
overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). “Thus, a court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Id. at 690. Ordinarily, the Eighth Circuit “consider[s] strategic
decisions to be virtually unchallengeable unless they are based on deficient
investigation[.]” Link v. Luebbers, 469 F.3d 1197, 1204 (8th Cir. 2006).
“Second, the [petitioner] must show that the deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687. This “prejudice prong”
8

requires the petitioner to “show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. In other words, “[i]t is not enough
for the [petitioner] to show that the errors had some conceivable effect on the
outcome of the proceeding.” Id. at 693. Thus, “[a]n error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.” Id. at 691.
B. Timeliness of Claims
Respondent argues that Erickson’s ineffective assistance of counsel
claims are untimely. Docket 34 at 5-6. A § 2255 motion is timely if it is filed
within one year of “the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due diligence.”
§ 2255(f)(4). A petitioner “must show the existence of a new fact, while also
demonstrating [he] acted with diligence to discover the new fact.” E.J.R.E. v.
United States, 453 F.3d 1094, 1097 (8th Cir. 2006).
In his motion on July 15, 2011, Erickson claimed that his trial counsel
repeatedly failed to provide documents and discovery that he needed to bring
ineffective assistance of counsel claims. Cr. Docket 165 at 2. Erickson now
argues that his recently accessed files constitute a “new fact” that triggers
§ 2255(f)(4) and that his attempts to access those files demonstrate due
diligence. Docket 35 at 9-10. Although Erickson does not state precisely when
he gained access to these files and does not cite with specificity which new
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facts were discovered in them, the court will determine his ineffective
assistance of counsel claims because they can be quickly resolved on the
merits.
C. Trial Counsel Claims One Through Five
Erickson argues that the failure of his counsel to move to dismiss the
charges because of prosecutorial misconduct during grand jury hearings
constitutes ineffective assistance of counsel. Docket 1 at 8-9. According to
Erickson, prosecutors threatened, coached, badgered, and led witnesses during
grand jury hearings. Id. Erickson alleges that Kitteaux was under threat while
testifying. Id. at 8. He bases this allegation on inconsistencies in Kitteaux’s
testimony, arguing that Kitteaux first claimed he was punched, not stabbed,
and that Kitteaux had some difficulty recalling when he had seen Erickson. Id.
at 8-9. He also claims that Kitteaux and Antoine both swore they were
threatened by the government in their attached affidavits. Id. at 9. Antoine
wrote that “government officials forced [him] to court; they issued a warrant
and abducted me off ‘Indian Country’ and then declared [him] hostile on the
stand.” Docket 1-1. Kitteaux expressed a desire not to testify further or pursue
charges against Erickson but made no mention of threats. Docket 1-2.
In total, these allegations do not suggest sufficient prosecutorial
misconduct to constitute ineffective assistance of counsel for failing to move to
dismiss the indictment. “[I]f there is no reasonable probability that the motion
would have been successful, [petitioner] cannot prove prejudice.” DeRoo v.
United States, 223 F.3d 919, 925 (8th Cir. 2000). Erickson fails to show that
10

there is a reasonable probability that the motion to dismiss would have been
successful. While Kitteaux’s testimony was inconsistent on certain facts, this
does not suggest threats or misconduct. Forcing a witness to testify and
declaring him hostile are common prosecutorial tactics that are not
misconduct. The victims’ affidavits may contradict their testimony, but this
does not suggest misconduct to the extent that there is a reasonable
probability that the motion to dismiss would have succeeded. Thus, Erickson
fails to show prejudice and cannot be afforded relief on this claim.
Erickson next argues that failure to object to prosecutorial misconduct at
trial constitutes ineffective assistance of counsel. Docket 1 at 9. Erickson
largely repeats the accusations of misconduct at grand jury hearings, alleging
that witnesses were threatened, coached, badgered, led, and forced to testify.
Id. at 8-9. Again, none of the allegations suggest sufficient prosecutorial
misconduct such that counsel’s failure to object constitutes ineffective
assistance of counsel. Because Erickson fails to show misconduct, any failure
to object to misconduct cannot be ineffective assistance of counsel.
Erickson then argues that trial counsel’s failure to subpoena a Winner
jail recording of a phone call between him and Small Bear on August 9, 2008,
constituted ineffective assistance of counsel. See id. at 10; Cr. Docket 96-2.
Erickson believed that this phone call would help prove that the government
had threatened witnesses. Docket 1 at 10. After trial counsel refused, Erickson
filed a motion for issuance of a subpoena himself shortly before trial. Cr.
Docket 96.
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In her motion to withdraw, trial counsel provided a strategic explanation
for her desire not to subpoena jail recordings. Cr. Docket 142 at 1. She believed
that the recordings would provide evidence that it was Erickson who was
tampering with witnesses, rather than the government, and this evidence
would ultimately hurt him. Id. This is sound legal strategy, especially given
that the government stated at sentencing that there was an open investigation
against Erickson for witness tampering based on his conduct while in jail,
including a phone call made to Small Bear. Cr. Docket 154 at 16-17. As sound
legal strategy, counsel’s refusal to subpoena the recording is virtually
unchallengeable and does not constitute deficient performance. See Link, 469
F.3d at 1204.
Erickson also argues that trial counsel made racially biased comments
that rendered her assistance ineffective. Docket 1 at 10. Erickson, a Native
American, claims that counsel described the case as Native Americans “getting
hurt over a jug of whiskey.” Id. Trial counsel did make comments along these
lines at a motion for change of legal counsel hearing, but these comments were
counsel’s attempt to explain potential juror bias to Erickson. Cr. Docket 156 at
48-49. Counsel believed that Erickson was better off accepting a plea
agreement, partially because of potential juror bias. Id. As such, counsel’s
statements were strategy and not deficient performance. See Link, 469 F.3d at
1204.
Erickson last argues that trial counsel was ineffective for failing to raise a
violation of the Fifth Amendment’s Double Jeopardy Clause when he was
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charged with one count of assault with a dangerous weapon and one charge of
assault resulting in serious bodily injury for the stabbings of Kitteaux and
Antoine. Docket 35 at 11. “An indictment is multiplicitous if it charges the
same crime in two counts.” United States v. Chipps, 410 F.3d 438, 447 (8th Cir.
2005). “Demonstrating that an indictment violates the double jeopardy
clause requires the defendant to show that the two offenses charged are in law
and fact the same offense.” United States v. Two Elk, 536 F.3d 890, 898 (8th
Cir. 2008) (internal quotation omitted). There is no double jeopardy violation if
each offense requires proof of an element not required by the other. United
States v. Carpenter, 422 F.3d 738, 747 (8th Cir. 2005); see also Blockburger v.
United States, 284 U.S. 299, 304 (1932) (“[T]he test to be applied to determine
whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.”).
The Eighth Circuit has already considered whether assault resulting in
serious bodily injury and assault with a dangerous weapon are multiplicitous.
United States v. Eagle, 586 F.2d 1193, 1196-97 (8th Cir. 1978). In Eagle, the
Eighth Circuit Court of Appeals considered an argument similar to Erickson’s
argument and concluded that the offenses of assault resulting in serious bodily
injury and assault with a dangerous weapon are “different as a matter of law”
because each offense requires proof of an element that the other offense does
not. Eagle, 586 F.2d at 1196. Thus, the Eighth Circuit has found that no
multiplicity occurs when an indictment charges violations of both 18 U.S.C.
§§ 113(a)(3) and 113(a)(6). Id. at 1197 (“The enactment of the statutes in
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question over a period of years, and the provision by Congress for separate
punishments, are compelling evidence that Congress intended the offenses to
be different as a matter of law.”); see also United States v. Fay, 668 F.2d 375,
379 (8th Cir. 1981).
“The elements of assault with a dangerous weapon are the defendant
(1) assaulted the victim, (2) used a dangerous weapon, (3) acted with the intent
to do bodily harm, (4) acted without just cause or excuse, (5) is an Indian, and
(6) the offense occurred in Indian Country.” United States v. Youngman, 481
F.3d 1015, 1020 (8th Cir. 2007). Assault with a dangerous weapon includes a
“specific intent to do bodily harm.” Fay, 668 F.2d at 378; see also 8th Cir. MJI
§ 6.18.113(6) (2018) (suggesting that assault with a dangerous weapon
includes an element of “specific intent to cause bodily harm”). On the other
hand, “[t]he elements of the 18 U.S.C. § 113(a)(6) offense of assault resulting in
serious bodily injury are (1) an intentional assault that (2) results in serious
bodily injury, committed (3) by an Indian and (4) within Indian Country.”
United States v. Stymiest, 581 F.3d 759, 766 (8th Cir. 2009). Unlike assault
with a dangerous weapon, “assault resulting in serious bodily injury requires
only a general intent to commit the acts of assault and not a specific intent to
do bodily harm.” United States v. Ashley, 255 F.3d 907, 911 (8th Cir. 2001).
Erickson fails to make an argument that overcomes this precedent. He
asserts that “a successful assault with a deadly weapon will always yield an
assault resulting in serious bodily injury.” Docket 35 at 13. But it is easy to
imagine a scenario where a victim is grazed by a knife, or conversely, where a
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victim suffers a serious bodily injury inflicted without a dangerous weapon.
Because this is not a winning argument, Erickson cannot show prejudice
caused by his trial counsel’s failure to raise it.
D. Appellate Counsel Claim Six
Erickson argues that appellate counsel’s failure to argue for his actual
innocence based on the facts constitutes ineffective assistance of counsel.
Docket 1 at 8. Under Strickland, counsel’s error must have a reasonable
probability of affecting results to constitute prejudice. Strickland, 466 U.S. at
694. Erickson cites affidavits from Antoine and Kitteaux in which they claim
that Erickson did not stab them and that they had no desire to testify or see
Erickson prosecuted. Docket 1 at 10; see Dockets 1-1, 1-2. These affidavits
were signed on March 1, 2010. Dockets 1-1, 1-2. Because Erickson’s appeal
was argued before the Eighth Circuit Court of Appeals on May 11, 2010, these
affidavits were available to raise at appeal. See Erickson, 610 F.3d at 1049.
Erickson believes that affidavits from the victims claiming that he did not
stab them suffice to show innocence. But these affidavits do not significantly
differ from the victims’ testimony at trial. See Cr. Docket 152 at 131-32, 147.
Kitteaux testified that he could not tell who stabbed him because there was a
curtain between himself and the assailant. Id. at 147. Antoine testified that he
did not remember who stabbed him and Kitteaux and that he did not
remember telling an FBI agent that Erickson stabbed him and Kitteaux. Id. at
131-32. Because Erickson’s conviction was not based on testimony from either
of these victims claiming that he assaulted them, affidavits swearing that he
15

did not assault them do not add significantly to the facts. This is before any
consideration of the credibility of the affidavits. Thus, there is not sufficient
evidence to suggest an argument of actual innocence had a reasonable
probability of succeeding at appeal, and there is no prejudice to appellate
counsel’s failure to raise this argument.
IV.

Innocence Claim
Erickson raises his innocence as a claim in his petition, but he has no

avenue for relief. First, the Supreme Court has not acknowledged a
freestanding claim of actual innocence as a means of habeas relief. See Herrera
v. Collins, 506 U.S. 390, 427 (1993) (O’Connor, J., concurring) (“[T]he
Court . . . appropriately reserves . . . the question whether federal courts may
entertain convincing claims of actual innocence.”). Instead, actual innocence
has only been recognized as a gateway to overcome procedural default. Id. at
404. The Supreme Court has noted in a capital case that the burden for such a
freestanding claim would be “extraordinarily high.” Id. at 417; see also United
States v. Sanchez-Maldonado, 2008 WL 4911853, at *4 (N.D. Iowa Nov. 14,
2008) (acknowledging that an actual innocence claim in a § 2255 petition
would have to meet a very high burden). Erickson’s showing of actual
innocence does not meet this burden. Second, this claim is untimely because it
relies on no new information beyond the affidavits of Antoine and Kitteaux from
2010. Thus, the one-year statute of limitations under § 2255(f) would have ran
in 2011.

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V.

Evidentiary Hearing
A court must order an evidentiary hearing “[u]nless the motion and files

and records of the case conclusively show that the [petitioner] is entitled to no
relief[.]” 28 U.S.C. § 2255(b); see also Thomas v. United States, 737 F.3d 1202,
1206 (8th Cir. 2013) (“Evidentiary hearings . . . are preferred, and the general
rule is that a hearing is necessary prior to the motion’s disposition if a factual
dispute exists.”). But a petition may be denied without a hearing if “(1) the
petitioner’s allegations, accepted as true, would not entitle the petitioner to
relief, or (2) the allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or conclusions rather than
statements of fact.” Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995).
Here, an evidentiary hearing is not required because Erickson’s
allegations, even if true, would not entitle him to relief. Erickson’s Eighth
Amendment and actual innocence claims are untimely, and his ineffective
counsel claims fail to show deficient performance and prejudice. Thus,
Erickson’s request for an evidentiary hearing is denied.
CERTIFICATE OF APPEALABILITY
When a district court denies a petitioner’s § 2255 motion, the petitioner
must first obtain a certificate of appealability before an appeal of that denial
may be entertained. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). This
certificate may be issued “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” is one that proves “reasonable jurists would find the district court’s
17

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Stated differently, “[a] substantial showing is a
showing 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). Erickson has not made a substantial
showing that his claims are debatable among reasonable jurists, that another
court could resolve the issues raised in his claims differently, or that a
question raised by his claims deserves additional proceedings. Thus, a
certificate of appealability is not issued.
CONCLUSION
Thus, it is ORDERED
1. Respondent’s motion to dismiss (Docket 32) is granted.
2. Erickson’s motion to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255 (Docket 1) is denied without an evidentiary hearing.
3. A certificate of appealability is denied.
Dated August 1, 2019.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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