United States District Court, D. South Dakota, Southern Division
ROBERT L. ERICKSON, Movant,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Robert L. Erickson, moves to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. Docket
The government opposes the motion and moves to dismiss
without holding an evidentiary hearing. Docket 32. For the
following reasons, the court grants the government's
motion and dismisses Erickson's petition.
detailed recitation of the facts can be found in the Eighth
Circuit Court of Appeals' consideration of Erickson's
direct appeal. United States v. Erickson, 610 F.3d
1049, 1051-52 (8th Cir. 2010). The facts most relevant to the
claims at hand are as follows.
faced five charges of assault stemming from “two
incidents that occurred at Sherry Erickson's residence in
Mission, South Dakota, between approximately November or
December 2007 and January 2, 2008.” Id. at
1051. On an evening in November or December 2007, Erickson
and his girlfriend, Kendra Small Bear, were drinking at
Sherry Erickson's residence. Id. An argument and
a physical altercation ensued in an alley near the residence.
Id. Erickson poked “Small Bear in the ear and
stabbed her in the leg” with a knife. Id.
second incident began on January 1, 2008, when Erickson
attended a party at Sherry Erickson's residence.
Id. At about 3:00 a.m. on January 2, Erickson began
to argue with Anthony Kitteaux. Id. Erickson exited
the residence to a front porch. Id. When Kitteaux
followed Erickson and began to pull back a blanket separating
the porch from the residence, Erickson slashed him across the
face with a knife. Id. Eli Antoine, who had been
inside the residence, then moved to the door. Id.
Erickson slashed him as well, slicing the palm of
Antoine's left hand and lacerating tendons and nerves.
was charged with three counts of assault with a dangerous
weapon. Id. Also, he was charged with two counts of
assault resulting in serious bodily injury in connection with
the January incident. Id. All offenses were joined
in a single trial, and the district court denied
Erickson's motion to sever. Id. at 1051-52. The
jury found Erickson guilty of all four counts related to his
stabbings of Kitteaux and Antoine but only found him guilty
of the lesser included offense of simple assault related to
the stabbing of Small Bear. Id. at 1052. Erickson
was sentenced to 110 months in custody on each charge of
assault committed against Antoine and 360 months in custody
on each charge of assault committed against Kitteaux. Cr.
Docket 138 at 2. He was also sentenced to six months in
custody for his assault of Small Bear. Id. All
sentences were to run concurrently. Id. The court
imposed a fine of $500 on each count. Id. at 5.
direct appeal, Erickson argued that the court erred in
admitting hearsay testimony and in refusing to sever the
charge stemming from the assault of Small Bear.
Erickson, 610 F.3d at 1050. On July 10,
2010, the Eighth Circuit Court of Appeals affirmed the
court's decision on both issues, finding that any hearsay
that had been admitted was harmless error and that the
district court did not abuse its discretion in denying the
motion to sever. Id. at 1054, 1056.
filed a pro se motion to extend the deadline to file
a § 2255 petition on July 15, 2011, alleging that
discovery had been withheld from him. Cr. Docket 165. The
court denied this motion for lack of jurisdiction. Cr. Docket
166. Erickson then filed a pro se § 2255
petition on April 4, 2016, alleging five grounds for relief.
Docket 1 at 5-12. He alleged that his Sixth, Eighth, and
Fourteenth Amendment rights were violated under Alleyne
v. United States, 570 U.S. 99 (2013). Id. at
5-6. He alleged that his sentence violated the Due Process
Clause of the Constitution, citing Johnson v. United
States. Id. at 6-8. Erickson also alleged that
his trial and appellate counsel were ineffective in violation
of the Sixth Amendment for several reasons, including failure
to object to prosecutorial misconduct at grand jury hearings,
failure to challenge the threatening of witnesses, failure to
attempt to access jail phone records, comments made by
defense counsel that revealed her racial bias, failure to
object to double jeopardy, and failure to raise sufficient
evidence of actual innocence on direct appeal. Id.
at 8-11; Docket 35 at 11. Last, Erickson asserted his
innocence as a claim. Docket 1 at 8, 10.
was appointed an attorney, who filed a voluntary dismissal of
his claims after the decision in Beckles v. United
States, which rendered Johnson inapplicable to
Erickson. Docket 16; see also Beckles v. United
States, 137 S.Ct. 886, 890 (2017) (holding that the
Federal Sentencing Guidelines are not subject to vagueness
challenges under the Due Process Clause). After this
dismissal was granted, Erickson filed a pro se
motion to reopen time to file a notice of appeal. Docket 18.
Erickson's motion was granted, and the district court
issued a certificate of appealability on the issue of whether
the court erred in dismissing the additional claims other
than the Johnson claim. Dockets 24, 25. The Eighth
Circuit then vacated the dismissal and remanded
Erickson's § 2255 petition to the district court to
proceed on the remaining claims. Docket 29.
§ 2255 motion is the “statutory analogue of habeas
corpus for persons in federal custody.” Poor
Thunder v. United States, 810 F.2d 817, 821 (8th Cir.
1987). A federal prisoner may seek relief from his sentence
on the grounds 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[.]” § 2255(a); see also Hill v. United
States, 368 U.S. 424, 426-27 (1962). Relief may be
granted under § 2255 only for “transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and, if
uncorrected, would result in a complete miscarriage of
justice.” Walking Eagle v. United States, 742
F.3d 1079, 1081-82 (8th Cir. 2014) (internal quotation
Sixth and Fourteenth Amendment Sentencing Claims
alleges that his Sixth and Fourteenth Amendment rights were
violated when the court issued a thirty-year sentence after
his conviction. Docket 1 at 5. Alleyne held that
“any fact that increases the mandatory minimum is an
‘element' that must be submitted to the
jury.” 570 U.S. at 103. Erickson initially argued that
his sentence, which relied on factual determinations that
increased his mandatory minimum period of incarceration,
violated his Sixth Amendment right to a jury and his
Fourteenth Amendment right to due process. Docket 1 at 5.
Later, Erickson acknowledged in a brief that the Eighth
Circuit has held that the ruling in Alleyne does not
apply retroactively and that he is not entitled to relief
under Alleyne. Docket 35 at 7-8; see also Walker
v. United States, 810 F.3d 568, 575 (8th Cir. 2016)
(“We now join those circuit courts holding that even if
Alleyne announced a new constitutional rule, that
rule does not apply retroactively on collateral
review.”). Erickson was sentenced in 2009, seven years
before Alleyne. Cr. Docket 138. Thus, Erickson has
no possible relief on these grounds.
Eighth Amendment Claim
alleges that his Eighth Amendment right to be free of cruel
and unusual punishment was violated because only a jury could
impose a thirty-year sentence. Docket 1 at 6. Erickson
repeats his argument under Alleyne here. Id.
Walker precludes this claim as well. See
Walker, 810 F.3d at 575.
also makes a separate argument under the Eighth Amendment,
but this claim is untimely. A § 2255 petition has a
one-year statute of limitations. 28 U.S.C. § 2255(f).
Erickson has not been prevented from making this motion, does
not assert a right newly recognized by the United States
Supreme Court, and makes no showing that this claim relies on
facts that could not be discovered through due diligence
until a date later than when this ruling became final.
See § 2255(f)(2)-(4). Thus, the statute of
limitations began to run ninety days after the Eighth Circuit
Court of Appeals's ruling became final. §
2255(f)(1); see also United States v. Hernandez, 436
F.3d 851, 856 (8th Cir. 2006) (recognizing that a conviction
becomes final ninety days after the Eighth Circuit's
ruling on direct appeal).
Eighth Circuit Court of Appeals issued its formal mandate on
August 4, 2010. Cr. Docket 164. As a result, the ruling
became final on November 2, 2010, and the claim was barred by
the one-year limit on November 2, 2011. Erickson did file a
pro se motion to extend the deadline to file a
§ 2255 petition on July 15, 2011, but that motion did
not include any allegation of an Eighth Amendment violation.