United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER DENYING MOTION TO VACATE AND ORDER
DENYING A CERTIFICATE OF APPEALABILITY
CHARLES B. KORNMANN UNITED STATES DISTRICT JUDGE.
pleaded guilty to a superseding information charging assault
resulting in serious bodily arising out of petitioner shaking
her two-year-old stepdaughter. She was sentenced on July 11,
2016, to the statutory maximum sentence of 120 months
custody. She filed a notice of appeal contending I erred in
sentencing her above the jointly recommended seven-year
sentence set forth in the plea agreement The United States
Court of Appeals for the Eighth Circuit affirmed. United
States v. Kills In Water, 2017 WL 1521542, 684
filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. Petitioner contends that
she received ineffective assistance of counsel because
counsel failed to file a notice of appeal on her behalf. She
contends that her motion to vacate is authorized
notwithstanding her waiver of appeal rights in the plea
agreement, citing Garza v. Idaho.__U.S.__,
139 S.Ct. 738, 203 L.Ed.2d 77 (February 27, 2019).
conducted an initial consideration of the motion, as required
by Rule 4 of the Rules Governing Section 2255 Proceedings for
the United States District Courts.
motion to vacate must be denied for a No. of legal
infirmaries. First, the record is clear that counsel did file
a notice of appeal on her behalf and the Court of Appeals
fully considered her appeal. No. evidentiary hearing is
necessary and the motion may be summary denied where the
allegations of the motion cannot be accepted as true because
they are contradicted by the record. Delgado v. United
States. 162 F.3d 981, 983 (8th Cir. 1998) (quoting
Engelen v. United States, 68 F.3d 238, 240 (8th Cir.
the motion to vacate is untimely. Pursuant to the
Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.
L. No. 104-132, 28 U.S.C. § 2255, a motion to vacate
must generally be filed within one year of the date the
judgment of conviction becomes final. 28 U.S.C. §
2255(f)(1). In petitioner's case, the conviction became
final on August 23, 2017, which is 90 days after the issuance
of the mandate from the Eighth Circuit. Any motion to vacate
must have been filed on or before August 22, 2018.
Petitioner's motion to vacate is untimely.
the Supreme Court's decision in Garza v. Idaho
does not apply to petitioner's case. Garza held that,
notwithstanding the existence of an appeal waiver in a plea
agreement, counsel is deficient for failing to file a notice
of appeal when directed by a defendant. Garza v.
Idaho. 139 S.Ct. at 747. Counsel did file an appeal as
required. Further, the Supreme Court in Garza v.
Idaho did not recognize a new right made retroactively
applicable to cases on collateral review as required by 28
U.S.C. § 2255(f)(3) to toll the limitations period.
dismissal is appropriate pursuant to Rule 4 of the Rules
Governing Section 2255 Proceedings for the United States
IS ORDERED that petitioner's motion, Doc. 1, to
vacate, set aside, or correct her conviction and sentence
pursuant to 28 U.S.C. § 2255 is denied.
THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
filed a motion pursuant to 28 U.S.C. § 2255 to vacate,
set aside, or correct her sentence of 120 months custody for
the crime of assault resulting in serious bodily injury. She
raised a claim of ...