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Mound v. United States

United States District Court, D. South Dakota, Southern Division

December 13, 2017





         Movant, James Chandler Mound, has filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See Docket No. 1.[1] Now pending is a motion to dismiss by respondent the United States of America (“government”). See Docket No. 15. Mr. Mound did not file a response to the motion. This matter has been referred to this magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(A) & (B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, United States District Judge. The following is this court's recommended disposition of the government's motion.


         A. Preliminary Proceedings

         Mr. Mound was charged in an indictment with being a felon in possession of firearm, possession of an unregistered firearm, transfer of an unregistered firearm, and conspiracy to transfer an unregistered firearm. See United States v. Mound, CR No. 15-40120-01, Docket 2 (D.S.D.). Mr. Mound made his initial appearance on October 14, 2015, at which time Jason Tupman of the Federal Public Defender's Office was appointed as counsel for Mr. Mound. See CR Docket Nos. 13 & 15. Shortly thereafter Mr. Tupman discovered a conflict of interest and the court appointed Michael W. Hanson as substitute counsel to represent Mr. Mound. After exchanging discovery the parties reached a plea agreement. CR Docket Nos. 58 & 59.

         B. Change of Plea

         Mr. Mound's change of plea hearing was held on March 22, 2016. CR Docket No. 168. During the change of plea hearing, the district court specifically explained to Mr. Mound that she might sentence him more severely than he anticipated. Id. at p. 5. Mr. Mound specifically indicated that he understood this. Id. The court also explained that the maximum possible penalty was a period of imprisonment of ten years (120 months), followed by three years of supervised release. Id. at p. 6. Mr. Mound also specifically indicated that he understood the maximum possible penalty. Id. at p. 7. Mr. Mound answered affirmatively when the court asked whether Attorney Hanson had talked with him about what Mr. Mound's advisory guideline range might be. Id. The court cautioned Mr. Mound, however, that Mr. Mound's guideline range could not be determined until the presentence report was completed and any objections thereto were ruled upon by her. Id. The court told Mr. Mound “because of that, the range that I find at the time of sentencing might be different than the estimate that he gave you. Do you understand that?” Id. To this, Mr. Mound responded, “I understand.” Id. The court also advised that, after considering other factors, his sentence might be more or less than the advisory guideline range. Mr. Mound indicated that he understood this, as well. Id. at 8.

         Mr. Mound's presentence report detailed his criminal history, including a an aggravated assault case (CR 14-2713, Second Judicial Circuit, Minnehaha County, South Dakota) in which Mr. Mound had, in January, 2015, originally received a sentence of 12 years in prison (suspended) and 180 days in custody. At the time of Mr. Mound's federal sentencing hearing, in June, 2016, a petition to revoke the suspended portion of this state sentence had been filed, but the state court had not yet acted on that petition. Ultimately, in August, 2016, after Mr. Mound's federal sentencing hearing, the state court sentenced Mr. Mound in CR 14-2713, and re-imposed the entire 12 year term of imprisonment, ordering said term to run concurrently with Mr. Mound's federal sentence. It appears that two other state cases which were pending in the Second Circuit, Minnehaha County at the time of Mr. Mound's federal sentencing (CR 15-2953 and CR 15-5382) were both dismissed by the prosecutor, thus resulting in no prison sentences for those cases.

         C. Sentencing

         Mr. Hanson filed objections to the presentence report in Mr. Mound's federal criminal case. See CR Docket Nos. 81 and 103. Sentencing began on June 13, 2016 (CR Docket No. 170), but, upon Mr. Hanson's discovery of information obtained when another individual “cleared out, ” the sentencing was continued at Mr. Hanson and Mr. Mound's request because they wished to file an additional objection to the presentence report. Id. at 4. Additionally, the government wished to have time to respond to the additional objection and perhaps call a witness to support its response. Id.

         The sentencing hearing was therefore was continued until June 27, 2016 (CR Docket No. 172). At the beginning of the sentencing hearing, the district court specifically asked Mr. Mound's lawyer whether he'd had a chance to review the presentence report with Mr. Mound. Id. at 2. Mr. Hanson said “yes.” Id. Mr. Mound did not voice any disagreement with Mr. Hanson's answer. The court then proceeded to discuss the two objections Mr. Hanson had filed to the presentence report. Id. at pp. 3-8. The court overruled both objections. Id. at pp. 5, 8. Mr. Mound's total offense level was determined to be 27, and his criminal history category was V. His guideline range was therefore 120 to 150 months. The statutory maximum, however, for the crime for which he pleaded guilty (felon in possession of a firearm in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2)) was 120 months.

         Next, Mr. Hanson argued on behalf of Mr. Mound. He insisted Mr. Mound was only a minor participant, and requested a downward departure or a downward deviation from the bottom of Mr. Mound's guideline range (120 months) Id. at 9. Mr. Hanson acknowledged that Mr. Mound had “some” criminal history, but argued that except for a federal aggravated assault conviction, Mr. Mound's criminal history consisted of relatively minor offenses. Id. at pp. 9-10.

         The court invited Mr. Mound to speak on his own behalf. Id. at p. 10. Mr. Mound accepted full responsibility for his actions. Id. After the government offered its opinion on the appropriate sentence, the court returned her focus to Mr. Mound, engaging Mr. Mound in a lengthy back-and-forth conversation about his upbringing, both of his parents, his children, his past problems (including his past convictions and charges that had been brought against him but dismissed), and his hopes for the future. Id. at pp. 10-16. Much of this conversation centered on information contained in the presentence report, and the court specifically referenced the presentence report in the context of her discussions with Mr. Mound. Id. Despite the court's repeated references to the presentence report during this conversation with him, Mr. Mound never contradicted his lawyer's statement, made at the beginning of the sentencing hearing, that he had reviewed the report with Mr. Mound before the sentencing hearing began. Mr. Mound likewise never disputed any of the information from the presentence report to which the court referred during this back and forth conversation. The court sentenced Mr. Mound to 120 months' imprisonment and 3 years' supervised release (the bottom of Mr. Mound's guideline range). CR Docket 172 at p. 18; CR Docket Nos. 115 & 116. The court specified that this federal sentence would run consecutively to Mr. Mound's then yet-to-be imposed state sentence in Minnehaha County. CR Docket No. 172 at p. 18. Mr. Mound did not file a direct appeal.

         D. Mr. Mound's § 2255 Motion

         Mr. Mound filed his current motion to vacate, correct or set aside his sentence on July 10, 2017. See Docket 1. Mr. Mound alleges two claims for relief based upon ineffective assistance of counsel and one claim for relief based upon an illegal sentence. The ineffective assistance claims assert that counsel failed to argue for a concurrent sentence, erroneously advised Mr. Mound as to his approximate sentencing guideline range, and failed to show Mr. Mound his presentence report. The claim for relief based upon an illegal sentence is grounded upon Mr. Mound's belief that he is entitled to have his federal and state sentences run concurrently rather than consecutively. The government argues that Mr. Mound's motion should be dismissed for failure to state any valid claim for relief. See Docket No. 15.


         A. Scope and Procedure Applicable to a § 2255 Motion

         Section 2255 of Title 28 of the United States Code provides, in relevant part, as follows:

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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 authority 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).

         Section 2255 of Title 28 of the United States Code was enacted to supersede habeas corpus practice for federal prisoners. Davis v. United States, 417 U.S. 333, 343-44 (1974). Prior to the enactment of § 2255, habeas claims had to be brought in the district where the prisoner was confined, resulting in overburdening those districts where federal correctional institutions were located and presenting logistical issues because the record in the underlying criminal case was often in a distant location. United States v. Hayman, 342 U.S. 205, 212-16 (1952). The enactment of § 2255 resolved these issues by requiring that the motion be filed in the sentencing court. Id.

         The scope of a § 2255 motion is seemingly broader than the scope of a habeas petition, the latter of which is typically limited to allegations of a constitutional dimension. Section 2255 allows a federal prisoner to “vacate, set aside or correct” a federal sentence on the ground that “the 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.” See 28 U.S.C. § 2255. Where the allegation for relief is not based on a violation of a Constitutional right or an assertion that the court was without jurisdiction, the Supreme Court has read a “fundamentality” requirement into § 2255--relief is available for only those errors which constitute a “fundamental defect which inherently results in a complete miscarriage of justice” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962); see Peguero v. United States, 526 U.S. 23, 27-30 (1999).

         Generally, petitioners are precluded from asserting claims pursuant to § 2255 that they failed to raise on direct appeal. United States v. Frady, 456 U.S. 152, 167-68 (1982); McNeal v. United States, 249 F.3d 747, 749 (8th Cir. 2001). When a § 2255 petitioner asserts a claim that is procedurally defaulted because it was not raised on direct appeal, the claim can only proceed after the petitioner has shown either: (1) actual innocence or (2) that the procedural default should be excused because there was both cause for the default and actual prejudice to the petitioner. Bousley v. United States, 523 U.S. 614, 621-22 (1998); McNeal, 249 F.3d at 749. Therefore, barring a claim of actual innocence, a petitioner 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.

         Appellate courts generally refuse to review claims of ineffective assistance of counsel on direct appeal; such claims are, therefore, properly addressed for the first time in a § 2255 motion such as the one here. See United States v. Lee, 374 F.3d 637, 654 (8th Cir. 2004) (ineffective assistance of counsel claims are not generally cognizable on direct appeal and will be heard only to prevent a miscarriage of justice or in cases where the district court has developed a record on the issue). Therefore, no procedural default analysis is required before examining a claim of constitutionally-deficient counsel.

         B. Mr. Mound's ...

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