United States District Court, D. South Dakota, Southern Division
REPORT & RECOMMENDATION
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE.
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. 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.
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.
Change of Plea
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.
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
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.
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.
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.
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.
Mr. Mound's § 2255 Motion
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.
Scope and Procedure Applicable to a § 2255
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).
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.
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).
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.
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
Mr. Mound's ...