United States District Court, D. North Dakota, Southwestern Division
ORDER DENYING DEFENDANT'S MOTION FOR HABEAS RELIEF
DANIEL L. HOVLAND, District Judge.
Before the Court is Klee Lee Morrison's "Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255" filed on September 17, 2014. See Docket No. 347. Filed in conjunction with Morrison's Section 2255 motion is a motion to stay the Section 2255 proceedings pending the outcome of post-conviction relief Morrison is pursuing in state court in Idaho. See Docket No. 348. The Government filed a response in opposition to both motions on November 19, 2014. See Docket No. 352. Morrison filed a reply on December 4, 2014. See Docket No. 353. For the reasons outlined below, the motions are denied.
Morrison was indicted on March 21, 2012. See Docket No. 35. On February 11, 2013, Morrison pled guilty to one count of Conspiracy to Possess with Intent to Distribute and Distribute a Controlled Substance in violation of 21 U.S.C. § 846 ("Count One"), and one count of Possession of a Firearm in Relation to a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1) ("Count Two"). See Docket No. 232. The Court ordered a Presentence Investigation Report ("PSR") to be prepared prior to sentencing.
On Count One, the PSR found an adjusted offense level of 29 and 10 criminal history points. See Docket No. 292. This calculation placed Morrison in criminal history category V and resulted in an advisory Sentencing Guideline range of 140-175 months. Count One carried a 10-year mandatory minimum sentence. Count Two carried a mandatory minimum 5-year consecutive sentence. Both counts carried a maximum penalty of life imprisonment.
Prior to sentencing, the Government filed a motion for downward departure pursuant to United States Sentencing Guideline § 5K1.1 and 18 U.S.C. § 3553(e). A sentencing hearing was held on September 16, 2013. At the sentencing hearing the Government recommended a 5% reduction in Morrison's sentence, and requested a 130-month sentence on Count One and a consecutive 60-month sentence on Count Two. See Docket No. 346, p. 8. The Court sentenced Morrison to 60-months imprisonment on Count One and a consecutive 60-months imprisonment on Count Two. See Docket No. 340. No appeal was taken. Morrison filed the Section 2255 motion now before the Court on September 15, 2014, when he placed it in the prison mailing system. See Docket No. 347, p. 10. The motion was received and filed by the Court on September 17, 2014. Morrison is serving his sentence at the Federal Correctional Institution in Sandstone, Minnesota.
II. STANDARD OF REVIEW
"28 U.S.C. § 2255 provides a federal prisoner an avenue for relief if his sentence was imposed in violation of the Constitution or laws of the United States, or... was in excess of the maximum authorized by law.'" King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28 U.S.C. § 2255(a)). This requires a showing of either constitutional or jurisdictional error, or a "fundamental defect" resulting in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A 28 U.S.C. § 2255 motion is not a substitute for a direct appeal and is not the proper way to complain about simple trial errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A 28 U.S.C. § 2255 movant "must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Section 2255 is "intended to afford federal prisoners a remedy identical in scope to federal habeas corpus." Davis, 417 U.S. at 343.
III. LEGAL DISCUSSION
A. MOTION TO STAY
Morrison first asks the Court to stay consideration of his Section 2255 motion pending the outcome of a motion for post-conviction relief motion he is pursuing in state court in Idaho. See Docket No. 348. In his post-conviction relief motion, Morrison is seeking to overturn a 2000 conviction for the unlawful taking of protected wildlife in Idaho. See Docket No. 348-1. The basis for the motion appears to be that Morrison was a juvenile at the time and the Idaho court was without jurisdiction to try him as an adult for a felony offense. This conviction was noted in the PSR. However, Morrison did not receive any criminal history points for the conviction because, according to U.S.S.G. § 4A1.2(c)(2), game and fish violations are not counted. See Docket No. 292, p. 14. This would appear to make the outcome of Morrison's collateral attack a moot point. However, Morrison contends that if he prevails on his pending motion for post-conviction relief, he will then be able to collaterally attack a 2002 Idaho state court conviction for unlawful possession of a firearm by a convicted felon. Morrison was assessed three criminal history points for this conviction. See Docket No. 292, p. 11.
The Court finds that even if Morrison prevails on his pending motion for post-conviction relief in Idaho, his criminal history score may not change. More importantly, Morrison would still need to prevail on another motion collaterally attacking his 2002 felon-in-possession conviction to affect his criminal history score. The Court is not inclined to stay the current Section 2255 motion while Morrison collaterally attacks two state court convictions in Idaho. Granting a stay would delay consideration of Morrison's arguments related to the two criminal history points he was assessed under U.S.S.G. § 4A1.1(d) for committing the federal offenses while under a criminal justice sentence.
The time for filing a motion under 28 U.S.C. § 2255 based on vacating a state conviction used to enhance a federal sentence is after the order vacating the state court conviction has been filed. See Johnson v. United States, 544 U.S. 295, 298 (2005) (holding Section 2255's one-year limitations period begins to run when a petitioner receives notice of the order vacating the state conviction, provided the petitioner exercised due diligence in seeking the vacatur); see also 28 U.S.C. § 2255(f)(4) (noting the 1-year limitations period runs from the date on which the facts supporting the claim could have been discovered). In addition, it would appear that such a motion, even if numerically second in number, would not be considered a second or successive motion requiring authorization from the Eighth Court of Appeals under 28 U.S.C. § 2255(h). See Stewart v. United States, 646 F.3d 856, 863 (11th Cir. 2011) (finding the factual predicate which supported the claim did not exist until the vacatur of the predicate state convictions, and that since the petitioner's first Section 2255 motion had been resolved prior to the vacatur, the claim based on the vacatur was previously unavailable and thus not successive); see also Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir 2003) (finding habeas petition was not successive because the claim upon which it was premised was based on facts which had not arisen prior to his ...