Thompson v. United States of America

Filing 23

ORDER granting 10 Motion to Dismiss; adopting 16 Report and Recommendation; overruling 20 Objection to Report and Recommendation. Signed by U.S. District Judge Karen E. Schreier on 7/23/19. Mailed to James Thompson. (SLW)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JAMES JOSEPH THOMPSON,

4:18-CV-04063-KES

Movant,
vs.
UNITED STATES OF AMERICA,

ORDER ADOPTING REPORT AND
RECOMMENDATION AND
DISMISSING MOTION

Respondent.
Movant, James Joseph Thompson, filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket 1. 1 The government now
moves to dismiss the petition for failure to state a claim, or in the alternative,
because this court does not have subject matter jurisdiction over movant’s
motion for § 2255 relief. Docket 10. The matter was referred to United States
Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(A) and (B) and
this court’s October 16, 2014 standing order. Magistrate Judge Duffy
recommends that Thompson’s motion be dismissed. Docket 16. Thompson
objected timely to the report and recommendation. Docket 20. For the following

Within this opinion, the court cites to documents in Thompson’s civil habeas
case by citing the docket number of the document. The court cites to
documents in Thompson’s underlying criminal case, United States v.
Thompson, 4:15-cr-40107 (D.S.D.), by citing to the docket number in the
criminal case preceded by “Cr.”
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reasons, the court adopts Magistrate Judge Duffy’s report and
recommendation, and dismisses Thompson’s motion.
FACTUAL BACKGROUND
A full factual background was provided by the magistrate judge in her
report and recommendation. Docket 16. Thus, this court will only give a simple
explanation and points to the magistrate judge’s report and recommendation
for the full background.
A jury found Thompson guilty of possession with intent to distribute
methamphetamine. Cr. Docket 154. The district court sentenced Thompson to
150 months imprisonment. Cr. Docket 167. Thompson was represented by a
succession of court-appointed lawyers, one of whom moved to suppress on
Thompson’s behalf, before the court granted Thompson’s request to represent
himself at trial and sentencing. Cr. Dockets 78, 147. The court appointed
attorney James Eirinberg as stand-by counsel to Thompson for trial and
sentencing. Cr. Docket 147. Thompson appealed, and the Eighth Circuit Court
of Appeals affirmed his conviction. See United States v. Thompson, 881 F.3d
629, 630 (8th Cir. 2018). Eirinberg represented Thompson during his appeal,
although Thompson also filed his own pro se brief raising issues in addition to
those raised by his counsel. Cr. Docket 169.
On June 5, 2018, Thompson filed a pro se motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Docket 1. First, Thompson
alleged venue was improper, because the charge should have been prosecuted
in Minnesota. Id. at 1. Second, Thompson alleged the jury may not have been
2

unanimous because of the venue issue. Id. at 2. Thompson argued some jurors
may have found him guilty for the 19 grams of methamphetamine found in
South Dakota only, while other jurors may have found him guilty for the 115
grams of methamphetamine found in Minnesota only, with an absence of 12
jurors voting to convict for either drug stash. Id. Lastly, Thompson alleged the
district court improperly considered the 115 grams of methamphetamine found
in Minnesota when sentencing Thompson. Id.
STANDARD OF REVIEW
The court’s review of a magistrate judge’s report and recommendation is
governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil
Procedure. The court reviews de novo any objections to the magistrate judge’s
recommendations with respect to dispositive matters that are timely made and
specific. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). In conducting its de
novo review, this court may then “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).
DISCUSSION
I.

Improper Venue
Thompson’s first claim alleges improper venue under Article III, Section

2, Clause 3 of the United States Constitution, the Sixth Amendment of the
United States Constitution, and Rule 18 of the Federal Rules of Criminal
Procedure. Docket 1. Thompson claims this court was without jurisdiction to
impose his sentence. Docket 20 at 3. Thompson argues he never possessed the
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115 grams of methamphetamine in South Dakota and, thus, should not have
been prosecuted for possession with intent to distribute methamphetamine in
the district of South Dakota and elsewhere. Docket 2 at 5. Thompson raised
the improper venue argument during his original trial and before the Eighth
Circuit on his direct appeal. See 8th Cir. Docket 16-4091, Pro Se Brief (April
14, 2017); Thompson, 881 F.3d at 630; Docket 16 at 7; Docket 12 at 3. The
Eighth Circuit affirmed the district court in all respects. Thompson, 881 F.3d at
630.
With few exceptions, Ҥ 2255 may not be used to relitigate matters
decided on direct appeal.” Sun Bear v. United States, 644 F.3d 700, 702 (8th
Cir. 2011) (citing Davis v. United States, 417 U.S. 333, 346-47 (1974)); see also
United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001). Issues may be
relitigated in a § 2255 motion if the alleged error constitutes “ ‘a fundamental
defect which inherently results in a complete miscarriage of justice,’ ” or where
the petitioner presents convincing new evidence of actual innocence. Davis,
417 U.S. at 346-47 (quoting Hill v. United States, 368 U.S. 424, 428 (1962));
see also Sun Bear, 644 F.3d at 704; Wiley, 245 F.3d at 752 (citing Weeks v.
Bowersox, 119 F.3d 1342, 1350-51 (8th Cir. 1997) (en banc)).
Thompson alleges his first claim can be relitigated in his § 2255 motion
because his sentence constitutes “ ‘a fundamental defect which inherently
results in a complete miscarriage of justice.’ ” Davis, 417 U.S. at 346-47
(quoting Hill, 368 U.S. at 428). Thompson claims that his sentence was
imposed in violation of the Constitution or the laws of the United States and
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that the court was without jurisdiction to impose Thompson’s sentence. Docket
20 at 3. Article III, Section 2, Clause 3 of the United States Constitution states,
“The trial of all crimes, except in cases of impeachment, shall be by jury; and
such trial shall be held in the state where the said crimes shall have been
committed.” The Sixth Amendment states, “In all criminal prosecutions, the
accused shall enjoy the right to . . . an impartial jury of the State and district
wherein the crime shall have been committed.” U.S. Const. amend. VI. Rule 18
of the Federal Rules of Criminal Procedure states, “Unless a statute or these
rules permit otherwise, the government must prosecute an offense in a district
where the offense was committed.” Fed. R. Crim. P. 18.
Magistrate Judge Duffy found Thompson is not entitled to § 2255 relief
on his first claim because he raised the argument on direct appeal and his
argument is substantively wrong. Docket 16 at 12. Thompson raised the
improper venue argument in his pro se supplemental argument before the
Eighth Circuit. Thompson acknowledged he raised the venue issue on appeal.
see Docket 2 at 4, 7; Docket 20 at 2, 3; see also 8th Cir. Docket 16-4091, Pro
Se Brief (April 14, 2017) at 34-35; Thompson, 881 F.3d at 630. The Eighth
Circuit considered the claim on its merits but did not grant any relief.
Thompson, 881 F.3d at 633. Thus, Thompson cannot relitigate the venue issue
unless he can show “a fundamental defect which inherently results in a
complete miscarriage of justice,” or convincing new evidence of actual
innocence. Davis, 417 U.S. at 346-47 (quoting Hill, 368 U.S. at 428); see also
Sun Bear, 644 F.3d at 704; Wiley, 245 F.3d at 752; Weeks, 119 F.3d at 13505

51. Magistrate Judge Duffy found that Thompson did not show either a
fundamental defect or actual innocence. Docket 16 at 12.
First, Thompson never asserts his innocence and the evidence presented
at trial would make it difficult for him to claim innocence. Nineteen grams of
methamphetamine were found in Thompson’s residence in South Dakota and
115 grams of methamphetamine were found in Thompson’s storage unit in
Minnesota. Cr. Docket 180 at 214-16. In jail, Thompson described to James Ivy
the process of mailing methamphetamine to himself from Arizona to various
hotels in Minneapolis, Chicago, and Omaha. Cr. Docket 180 at 109-111; see
also Docket 16 at 12. The contents of Thompson’s cell phones and his storage
shed showed numerous mailing labels for packages addressed to Thompson at
hotels in the described cities and originating from Phoenix, Arizona. Cr. Docket
180 at 95-96, 135, 138-39, 205, 242-44; see also Docket 16 at 12. After his
sentencing and direct appeal, Thompson admitted to constructively possessing
the 115 grams of methamphetamine in Minnesota and possessing the 19
grams of methamphetamine in South Dakota. Docket 20 at 7, 8. Thus,
Thompson has not shown actual innocence.
Next, Thompson has not shown a fundamental defect causing a complete
miscarriage of justice because Thompson is misinterpreting and
misunderstanding the law. Thompson asserts that when the government
decided to charge him with intent to distribute methamphetamine, it could only
prosecute him in the district where the possession was proven to have
occurred. Docket 2 at 7. Thompson admits that the prosecution in South
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Dakota for the 19 grams of methamphetamine was appropriate but alleges that
the government was required to prosecute him in Minnesota for the 115 grams
of methamphetamine found in his Minnesota storage locker. Id.
The Eighth Circuit has recognized that possession with intent to
distribute is a continuing crime and can be properly tried in any district where
the offense began, continued, or was completed. United States v. Granados, 117
F.3d 1089, 1091 (8th Cir. 1997); see also United States v. Swinney, 970 F.2d
494, 497 (8th Cir. 1992); United States v. Kiser, 948 F.2d 418, 425 (8th Cir.
1991); United States v. Delgado, 914 F.2d 1062, 1065-66 (8th Cir. 1990). When
the government charges possession with intent to distribute, the possession
element need not occur in the same district as the distribution element.
Granados, 117 F.3d at 1091. “ ‘[W]here a crime consists of distinct parts which
have different localities the whole may be tried where any part can be proved to
have been done.’ ” United States v. Rodriguez-Moreno, 526 U.S. 275, 281 (1999)
(quoting United States v. Lombardo, 241 U.S. 73, 77 (1916)).
Thompson cites five cases to argue that, because the 19 grams and 115
grams of methamphetamine were found at separate locations, there should
have been two separate charges rather than one. Docket 21 at 2 (citing United
States v. Blakeney, 753 F.2d 152, 154-55 (D.C. Cir. 1985); United States v.
Griffin, 765 F.2d 677 (7th Cir. 1985); United States v. Privett, 443 F.2d 528, 531
(9th Cir. 1971); United States v. Maldonado, 849 F.2d 522, 524 (11th Cir.
1988); United States v. Kendrick, No. 10-CR-6096, 2014 U.S. Dist. LEXIS
181703 (W.D.N.Y. Nov. 7, 2014)). The five cases hold only persuasive weight
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and are not binding on this court. This court must apply the law of the Eighth
Circuit that is referenced previously.
Next, Thompson cites Delgado, 914 F.2d at 1065, to argue that this court
has no venue over the 115 grams of methamphetamine, because the 115 grams
were not physically in South Dakota until law enforcement drove it into the
state. Docket 2 at 7. In Delgado, the Eighth Circuit stated, “ ‘possession must
nonetheless continue in the district in which the Government seeks to
prosecute.’ ” Delgado, 914 F.2d at 1065 (quoting United States v. MedinaRamos, 834 F.2d 874 (10th Cir. 1987)).
Thompson’s conclusion is substantively wrong. The law recognizes
several kinds of possession, including constructive possession. See United
States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004). Possession,
constructive or actual, of a large quantity of drugs is sufficient to show intent
to distribute. Id. at 635. The court instructed the jury that Thompson could
constructively possess the drugs in the Minnesota storage unit if he had the
power and intention at a given time to exercise dominion and control over
them. See Cr. Docket 157 at 3. The evidence at trial showed Thompson was the
sole lessee on the storage unit lease agreement and the storage unit was locked
with a padlock fastened to the door by Thompson. Cr. Docket 180 at 138, 141;
see also Docket 16 at 16. The storage unit was full of items owned by
Thompson, such as a trailer licensed to Thompson and boxes with mailing
labels addressed to him. Cr. Docket 180 at 134-35, 138-39. Magistrate Judge
Duffy concluded that this evidence was enough to show Thompson
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constructively possessed the methamphetamine in the storage unit. Docket 16
at 16. Thompson admitted to constructively possessing the 115 grams of
methamphetamine in his objections to the report and recommendation. Docket
20 at 7. Evidence showed that Thompson distributed the methamphetamine
stored in the Minnesota storage unit in South Dakota. See Cr. Dockets 105-08.
Testimony established that the 19 grams and 115 grams of methamphetamine
found at Thompson’s residence and storage unit represented distribution
quantities of the drug, not personal consumption amounts. See Cr. Docket 180
at 215-16. Thus, Thompson continuously and constructively possessed the
115 grams of methamphetamine with the intent to distribute the
methamphetamine in South Dakota and elsewhere.
Also, Delgado can be distinguished from the case here. The defendant in
Delgado was prosecuted in North Dakota, but the evidence showed he was
never in North Dakota, the drugs never reached North Dakota, and no action
constituting possession occurred in North Dakota. Delgado, 914 F.2d at 106566. Here, Thompson was in South Dakota, the drugs reached South Dakota,
and the distribution occurred in South Dakota. Delgado does not support
Thompson’s argument and he has not shown that a fundamental defect exists
that inherently results in a complete miscarriage of justice.
Overall, Thompson already litigated the venue issue and, because he
cannot show actual innocence or a fundamental defect, he cannot relitigate the
issue in a § 2255 motion. Thus, Thompson’s first claim is dismissed without an
evidentiary hearing.
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II.

Non-Unanimous Jury
Thompson’s second claim is that the jury may not have been unanimous

because of the venue issue. See Docket 1 at 2; Docket 2 at 9. Thompson
asserts that some jurors may have found him guilty on the 115 grams of
methamphetamine in Minnesota only, with an absence of 12 jurors voting to
convict for either drug stash. Docket 1 at 2. Thompson raised the nonunanimous jury issue on direct appeal to the Eighth Circuit. See 8th Cir.
Docket 16-4091, Pro Se Brief (April 14, 2017); Thompson, 881 F.3d at 630; see
also Docket 16 at 5. The Eighth Circuit considered the issue on its merits but
did not grant relief. Thompson, 881 F.3d at 630. Instead, the Eighth Circuit
affirmed the district court in all respects. Id.
When a defendant has raised an issue on appeal, that issue cannot be
relitigated in a § 2255 proceeding, unless the petitioner can show actual
innocence or “ ‘a fundamental defect which inherently results in a complete
miscarriage of justice.’ ” Davis, 417 U.S. at 346-47 (quoting Hill, 368 U.S. at
428); see also Sun Bear, 644 F.3d at 704; Wiley, 245 F.3d at 752. Thompson
has not claimed actual innocence and, thus, makes his claim based on
allegations of a fundamental defect. Thompson asserts that the possession with
intent to distribute charge was a duplicitous indictment – one that charges a
single crime, but, encompasses two separate crimes. Docket 2 at 9; see also
United States v. Pietrantonio, 637 F.3d 865, 869 (8th Cir. 2011). Thompson
claims that this issue is intertwined with the venue issue, because he believes
there are two separate acts of possession of methamphetamine in two different
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venues. Thompson does not present evidence to show that the jury was not
unanimous. Docket 2.
Magistrate Judge Duffy found there is no duplicity issue because the
crime of possession with intent to distribute is a continuing offense. Docket 16
at 15; see also Granados, 117 F.3d at 1091. The jury did not need to choose
between believing Thompson possessed methamphetamine in Minnesota,
South Dakota, or both. Both locations of possession were part of the
continuing crime of possession with intent to distribute. See Pietrantonio, 637
F.3d at 869 (citing United States v. George, 625 F.3d 1124, 1131 (9th Cir.
2010)). When a crime is a continuing offense, the actions constituting the crime
occur over a period of time and in different locations. Unlike a crime that is a
one-time event, the different locations and times of a continuing offense do not
pose the same duplicity problem. George, 625 F.3d at 1131. Finally, the court
instructed the jury that the verdict must be unanimous. Cr. Docket 157 at 10.
Overall, Thompson has already litigated the non-unanimous jury issue
and, because he cannot show actual innocence or a fundamental defect, he
cannot relitigate the issue on a § 2255 motion. Thus, Thompson’s second claim
is dismissed without an evidentiary hearing.
III.

Error in Calculating Sentence
Thompson’s third claim is that the district court erred in calculating

Thompson’s sentence based upon the 115 grams of methamphetamine instead
of the 19 grams. Docket 2 at 11-12. In other words, Thompson alleges that the
district court improperly considered the 115 grams of methamphetamine from
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Minnesota in arriving at Thompson’s sentence. Thompson claims that if this
court sentenced him based solely on the possession with the intent to
distribute the 19 grams of methamphetamine in South Dakota, he would have
received a lighter sentence under 21 U.S.C. § 841(b)(1)(B)(viii). Docket 20 at 12.
Because he was charged with possession of over 50 grams of actual
methamphetamine, which includes the 115 grams of actual methamphetamine
located in Minnesota, Thompson was sentenced under 21 U.S.C. §
841(b)(1)(A)(viii). Docket 1. The penalty provision under § 841(b)(1)(A)(viii) states
that a “person shall be sentenced to a term of imprisonment which may not be
less than 10 years or more than life.” The penalty provision under
§ 841(b)(1)(B)(viii) states that a “person shall be sentenced to a term of
imprisonment which may not be less than 5 years and not more than 40
years.” Thompson alleges that, because of the improper venue, the sentence
imposed was in excess of the maximum authorized by law. Docket 20 at 3.
Unlike Thompson’s other claims, Thompson did not raise this issue on appeal.
Generally, petitioners cannot assert claims under § 2255 that they failed
to raise on direct appeal. See United States v. Frady, 456 U.S. 152, 167-68
(1982); McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001). “A
defendant who has procedurally defaulted a claim by failing to raise it on direct
review may raise that claim in a Section 2255 proceeding only by
demonstrating cause for the default and prejudice or actual innocence.”
McNeal, 249 F.3d at 749 (citing Bousley v. United States, 523 U.S. 614, 622
(1998)); see also Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005).
12

Thus, if a petitioner cannot show actual innocence, he must show both cause
for why he failed to raise an issue on direct appeal as well as actual prejudice
caused by the alleged errors. Bousley, 523 U.S. at 622.
Magistrate Judge Duffy found that Thompson has procedurally defaulted
this claim and recommended the claim be denied. Docket 16 at 17. First, as
already discussed, Thompson has not claimed actual innocence and has not
provided any new proof that suggests he is innocent. Thompson has admitted
guilt to possessing at least 19 grams of methamphetamine and has admitted to
constructively possessing the 115 grams of methamphetamine. Docket 2 at 1112; Docket 20 at 7. Second, Thompson has not shown cause for why he failed
to raise this issue on direct appeal. Thompson admitted he “technically
procedurally defaulted his claim” and does not give a reason for why he did not
raise the claim on direct appeal. Docket 20 at 12. Thompson could have raised
this issue on appeal, but both he and his counsel failed to do so. “Collateral
proceedings under 28 U.S.C. § 2255 cannot be made to do service for an
appeal.” United States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995) (citing Frady,
456 U.S. at 165). “To the fullest extent possible, all arguments, even
constitutional or jurisdictional ones . . . should be made at trial and on direct
appeal.” Ward, 55 F.3d 412 at 413 (citing Frady, 456 U.S. at 165; Ramey v.
United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam)). Because
Thompson failed to raise this issue on direct appeal, the issue is procedurally
defaulted. See Auman v. United States, 67 F.3d 157, 160-61 (8th Cir. 1995);
Melendez-Rocha v. United States, No. 4:13-CV-04102-LLP, 2014 WL 10968207,
13

at *10 (D.S.D. Nov. 24, 2014), report and recommendation adopted, 2016 WL
67694 (D.S.D. Jan. 5, 2016).
Third, Thompson has not shown actual prejudice. To prove prejudice, a
habeas corpus petitioner must show “not merely that the errors at his trial
created a possibility of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” Frady, 456 U.S. at 170 (emphasis in original). Thompson’s third
claim is a variation of his venue argument and Thompson cannot obtain relief
for the same reasons discussed before. Thus, Thompson’s third claim is
procedurally defaulted.
Even if Thompson’s claim was not procedurally defaulted, it would still
fail on the merits, because § 2255 makes relief available only if “the sentence
was in excess of the maximum authorized by law.” 28 U.S.C. § 2255. The
Eighth Circuit has held that a petitioner may raise a claim that his sentence
exceeded the maximum authorized by law in a § 2255 motion, even if he is
procedurally defaulted by not raising the claim in direct appeal. United States
v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993). But Thompson’s sentence does
not exceed the maximum authorized by law. Thompson was convicted of
possession with intent to distribute methamphetamine and the court properly
sentenced Thompson to 150 months in prison. Cr. Dockets 155, 167. 150
months is on the lower end of the sentencing guidelines and is nowhere near
exceeding the maximum authorized by law. Even if the jury had found
Thompson responsible for only the 19 grams of methamphetamine found in
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South Dakota, the maximum possible penalty would have been 40 years in
custody and Thompson’s sentence of 150 months is well below that sentence.
As explained above, venue was proper, and Thompson possessed the 19
grams of actual methamphetamine in South Dakota and constructively
possessed the 115 grams of actual methamphetamine in Minnesota with the
intent to distribute the methamphetamine in South Dakota. The Eighth Circuit
considered Thompson’s appeal and affirmed the district court on all aspects.
Thompson, 881 F.3d at 631-32. Thompson has not shown how his sentence is
in excess of the maximum and, thus, Thompson is not entitled to relief.
Thus, Thompson is procedurally defaulted from raising the improper
calculation issue, and because he has not shown actual innocence or cause
and prejudice, he cannot litigate the issue on a § 2255 motion. Thompson’s
sentence is not in excess of the maximum authorized by law. Thus,
Thompson’s third claim is dismissed without an evidentiary hearing.
IV.

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.”). Affidavits of a petitioner’s trial counsel can be included as
part of the files and records of the case. Thomas, 737 F.3d at 1027. But a
petition may be denied without a hearing if “(1) the petitioner’s allegations,
15

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) (citations omitted). “While ‘[a]
petitioner is entitled to an evidentiary hearing on a section 2255 motion unless
the motion and the files and the records of the case conclusively show that [he]
is entitled to no relief,’ no hearing is required ‘where the claim is inadequate on
its face or if the record affirmatively refutes the factual assertions upon which
it is based.’ ” New v. United States, 652 F.3d 949, 954 (8th Cir. 2011) (quoting
Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008)).
The government contends that Thompson’s petition should be dismissed
without first holding a hearing. Docket 10 at 1. Thompson disagrees. Docket
20. The court finds that it can dismiss Thompson’s petition without an
evidentiary hearing because Thompson’s arguments fail as a matter of law. Two
of Thompson’s arguments were raised on direct appeal and cannot be
relitigated in a § 2255 proceeding. Thompson has failed to show either a
fundamental defect or actual innocence to support relitigating the issues.
Thompson’s third argument is procedurally defaulted because Thompson failed
to raise the issue on appeal. Thompson has failed to show cause and prejudice
excusing his default or new evidence indicating he is innocent. Thompson’s
sentence of 150 months does not exceed the maximum authorized by law.
Here, the “files and records . . . conclusively show that [Thompson] is entitled
to no relief” for his claims. 28 U.S.C. § 2255(b). There is no issue of fact or
16

credibility to be determined in an evidentiary hearing. Thus, Thompson’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). The
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(2). A “substantial
showing” is one that shows “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). In other words, “[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). Thompson 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.

17

CONCLUSION
Thus, it is ORDERED
1. Thompson’s objections to the report and recommendation (Docket 20)
are overruled.
2. The report and recommendation (Docket 16) is adopted in full as
supplemented herein.
3. Respondent’s motion to dismiss (Docket 10) is granted.
4. Thompson’s motion to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255 (Docket 1) is dismissed without an evidentiary
hearing.
5. A certificate of appealability is denied.
Dated July 23, 2019.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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