United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION AND
E. SCHREIER UNITED STATES DISTRICT JUDGE.
James Joseph Thompson, filed a motion to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255. Docket
The government now moves to dismiss the petition for failure
to state a claim, or in the alternative, because this court
does not have subject matter jurisdiction over movant's
motion for § 2255 relief. Docket 10. The matter was
referred to United States Magistrate Judge Veronica L. Duffy
under 28 U.S.C. § 636(b)(1)(A) and (B) and this
court's October 16, 2014 standing order. Magistrate Judge
Duffy recommends that Thompson's motion be dismissed.
Docket 16. Thompson objected timely to the report and
recommendation. Docket 20. For the following reasons, the
court adopts Magistrate Judge Duffy's report and
recommendation, and dismisses Thompson's motion.
factual background was provided by the magistrate judge in
her report and recommendation. Docket 16. Thus, this court
will only give a simple explanation and points to the
magistrate judge's report and recommendation for the full
found Thompson guilty of possession with intent to distribute
methamphetamine. Cr. Docket 154. The district court sentenced
Thompson to 150 months imprisonment. Cr. Docket 167. Thompson
was represented by a succession of court-appointed lawyers,
one of whom moved to suppress on Thompson's behalf,
before the court granted Thompson's request to represent
himself at trial and sentencing. Cr. Dockets 78, 147. The
court appointed attorney James Eirinberg as stand-by counsel
to Thompson for trial and sentencing. Cr. Docket 147.
Thompson appealed, and the Eighth Circuit Court of Appeals
affirmed his conviction. See United States v.
Thompson, 881 F.3d 629, 630 (8th Cir. 2018). Eirinberg
represented Thompson during his appeal, although Thompson
also filed his own pro se brief raising issues in addition to
those raised by his counsel. Cr. Docket 169.
5, 2018, Thompson filed a pro se motion to vacate, set aside,
or correct his sentence under 28 U.S.C. § 2255. Docket
1. First, Thompson alleged venue was improper, because the
charge should have been prosecuted in Minnesota. Id.
at 1. Second, Thompson alleged the jury may not have been
unanimous because of the venue issue. Id. at 2.
Thompson argued some jurors may have found him guilty for the
19 grams of methamphetamine found in South Dakota only, while
other jurors may have found him guilty for the 115 grams of
methamphetamine found in Minnesota only, with an absence of
12 jurors voting to convict for either drug stash.
Id. Lastly, Thompson alleged the district court
improperly considered the 115 grams of methamphetamine found
in Minnesota when sentencing Thompson. Id.
court's review of a magistrate judge's report and
recommendation is governed by 28 U.S.C. § 636 and Rule
72 of the Federal Rules of Civil Procedure. The court reviews
de novo any objections to the magistrate judge's
recommendations with respect to dispositive matters that are
timely made and specific. 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). In conducting its de novo review, this
court may then “accept, reject, or modify, in whole or
in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1);
United States v. Craft, 30 F.3d 1044, 1045 (8th Cir.
first claim alleges improper venue under Article III, Section
2, Clause 3 of the United States Constitution, the Sixth
Amendment of the United States Constitution, and Rule 18 of
the Federal Rules of Criminal Procedure. Docket 1. Thompson
claims this court was without jurisdiction to impose his
sentence. Docket 20 at 3. Thompson argues he never possessed
the 115 grams of methamphetamine in South Dakota and, thus,
should not have been prosecuted for possession with intent to
distribute methamphetamine in the district of South Dakota
and elsewhere. Docket 2 at 5. Thompson raised the improper
venue argument during his original trial and before the
Eighth Circuit on his direct appeal. See 8th Cir.
Docket 16-4091, Pro Se Brief (April 14, 2017);
Thompson, 881 F.3d at 630; Docket 16 at 7; Docket 12
at 3. The Eighth Circuit affirmed the district court in all
respects. Thompson, 881 F.3d at 630.
few exceptions, “§ 2255 may not be used to
relitigate matters decided on direct appeal.” Sun
Bear v. United States, 644 F.3d 700, 702 (8th Cir. 2011)
(citing Davis v. United States, 417 U.S. 333, 346-47
(1974)); see also United States v. Wiley, 245 F.3d
750, 752 (8th Cir. 2001). Issues may be relitigated in a
§ 2255 motion if the alleged error constitutes “
‘a fundamental defect which inherently results in a
complete miscarriage of justice,' ” or where the
petitioner presents convincing new evidence of actual
innocence. Davis, 417 U.S. at 346-47 (quoting
Hill v. United States, 368 U.S. 424, 428 (1962));
see also Sun Bear, 644 F.3d at 704; Wiley,
245 F.3d at 752 (citing Weeks v. Bowersox, 119 F.3d
1342, 1350-51 (8th Cir. 1997) (en banc)).
alleges his first claim can be relitigated in his § 2255
motion because his sentence constitutes “ ‘a
fundamental defect which inherently results in a complete
miscarriage of justice.' ” Davis, 417 U.S.
at 346-47 (quoting Hill, 368 U.S. at 428). Thompson
claims that his sentence was imposed in violation of the
Constitution or the laws of the United States and that the
court was without jurisdiction to impose Thompson's
sentence. Docket 20 at 3. Article III, Section 2, Clause 3 of
the United States Constitution states, “The trial of
all crimes, except in cases of impeachment, shall be by jury;
and such trial shall be held in the state where the said
crimes shall have been committed.” The Sixth Amendment
states, “In all criminal prosecutions, the accused
shall enjoy the right to . . . an impartial jury of the State
and district wherein the crime shall have been
committed.” U.S. Const. amend. VI. Rule 18 of the
Federal Rules of Criminal Procedure states, “Unless a
statute or these rules permit otherwise, the government must
prosecute an offense in a district where the offense was
committed.” Fed. R. Crim. P. 18.
Judge Duffy found Thompson is not entitled to § 2255
relief on his first claim because he raised the argument on
direct appeal and his argument is substantively wrong. Docket
16 at 12. Thompson raised the improper venue argument in his
pro se supplemental argument before the Eighth Circuit.
Thompson acknowledged he raised the venue issue on appeal.
see Docket 2 at 4, 7; Docket 20 at 2, 3; see
also 8th Cir. Docket 16-4091, Pro Se Brief (April 14,
2017) at 34-35; Thompson, 881 F.3d at 630. The
Eighth Circuit considered the claim on its merits but did not
grant any relief. Thompson, 881 F.3d at 633. Thus,
Thompson cannot relitigate the venue issue unless he can show
“a fundamental defect which inherently results in a
complete miscarriage of justice, ” or convincing new
evidence of actual innocence. Davis, 417 U.S. at
346-47 (quoting Hill, 368 U.S. at 428); see also
Sun Bear, 644 F.3d at 704; Wiley, 245 F.3d at
752; Weeks, 119 F.3d at 1350- 51. Magistrate Judge
Duffy found that Thompson did not show either a fundamental
defect or actual innocence. Docket 16 at 12.
Thompson never asserts his innocence and the evidence
presented at trial would make it difficult for him to claim
innocence. Nineteen grams of methamphetamine were found in
Thompson's residence in South Dakota and 115 grams of
methamphetamine were found in Thompson's storage unit in
Minnesota. Cr. Docket 180 at 214-16. In jail, Thompson
described to James Ivy the process of mailing methamphetamine
to himself from Arizona to various hotels in Minneapolis,
Chicago, and Omaha. Cr. Docket 180 at 109-111; see
also Docket 16 at 12. The contents of Thompson's
cell phones and his storage shed showed numerous mailing
labels for packages addressed to Thompson at hotels in the
described cities and originating from Phoenix, Arizona. Cr.
Docket 180 at 95-96, 135, 138-39, 205, 242-44; see
also Docket 16 at 12. After his sentencing and direct