The opinion of the court was delivered by: Ralph R. Erickson, Chief Judge United States District Court
ORDER DENYING MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255
Before the Court is Petitioner Corey Lorent Molsbarger's (hereafter "Molsbarger") Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. #71). The Court, having carefully considered Molsbarger's arguments, finds no cognizable claim for relief. Thus, Molsbarger's motion for an evidentiary hearing is denied, his motion for the appointment of counsel is denied, his motion to vacate the sentence is denied, and his petition is dismissed with prejudice.
PROCEDURAL HISTORY OF THE CASE
On February 14, 2007, Molsbarger was indicted for Possession with Intent to Distribute a Controlled Substance, in violation of 21 U.S.C. § 841(a)(1) (Doc. #1). Following a two-day trial, the jury convicted Molsbarger of possession with intent to distribute 50 grams or more of methamphetamine. The Court sentenced Molsbarger on December 11, 2007 to 192 months imprisonment. Judgment was entered on December 14, 2007 (Doc. #60).
Molsbarger appealed his conviction to the Eighth Circuit Court of Appeals, contending the Court improperly denied his motion to suppress evidence and the evidence was insufficient to support the jury's verdict. The Eighth Circuit affirmed the conviction in an opinion filed on January 6, 2009 (Doc. #69). The Court of Appeals issued the mandate on January 30, 2009 (Doc. #70). The United States Supreme Court denied Molsbarger's petition for a writ of certiorari on May 4, 2009. Molsbarger v. United States, 129 S.Ct. 2168 (May 4, 2009). Thus, the one-year limitation period under 28 U.S.C. § 2255 began to run on May 4, 2009. Campa-Febela v. United States, 339 F.3d 993 (8th Cir. 2003). Molsbarger timely filed this § 2255 habeas petition on April 29, 2010.
REQUEST FOR AN EVIDENTIARY HEARING AND APPOINTMENT OF COUNSEL
In his petition, Molsbarger requests an evidentiary hearing and also that counsel be appointed. A petitioner is entitled to an evidentiary hearing on his § 2255 petition unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (quoting 28 U.S.C. § 2255(b)). A district court does not err in dismissing a petitioner's motion under § 2255 without a hearing if:
(1) the petitioner's allegations, accepted as true, would not entitle him 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. Buster v. United States, 447 F.3d 1130, 1132 (8th Cir. 2006). Because Molsbarger's claims, which are based on unsupported allegations and contradict the evidence in the record, do not support a cognizable claim for relief, the request for an evidentiary hearing is denied.
"Where an evidentiary hearing is not required, the district court retains discretion to determine whether counsel should be appointed." United States v. Degand, 614 F.2d 176, 179 (8th Cir. 1980). In reviewing the petition, it is clear Molsbarger has adequately raised the issues he wants the Court to address and the appointment of counsel is unnecessary. Further, the record conclusively demonstrates that Molsbarger is entitled to no relief; therefore, the request for the appointment of counsel is denied.
PETITIONER'S GROUNDS FOR RELIEF
Molsbarger asserts the following grounds for relief, all under the category of ineffective assistance of counsel: (1) violation of due process rights resulting from an illegal search and seizure of the hotel room; (2) violation of due process rights for failure to give the jury a lesser included offense instruction; (3) violation of due process rights for failure to exclude "personal use" amount of methamphetamine from the sentencing calculation; (4) deprivation of fundamental right to a fair trial as a result of "cumulative error"; and (5) denial of effective assistance of appellate counsel. The Court has considered each of the issues raised by Molsbarger and finds no meritorious claim for relief.
I. Alleged Illegal Search and Seizure
Molsbarger claims his trial counsel was ineffective and/or the court erred in denying his motion to suppress methamphetamine found in the beer box in the hotel room. Molsbarger fails to explain how his counsel was ineffective. He simply reiterates the arguments he made on direct appeal. "Issues raised and decided on direct appeal cannot ordinally be relitigated in a collateral proceeding based on 28 U.S.C. § 2255." United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001). The Court ...