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Erickson v. United States

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

August 1, 2019

ROBERT L. ERICKSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Petitioner, Robert L. Erickson, moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1.[1] 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.

         BACKGROUND

         A more 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.

         Erickson 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.

         The 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. Id.

         Erickson 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.

         On 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.

         Erickson 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.

         Erickson 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.

         LEGAL STANDARD

         A § 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 omitted).

         DISCUSSION

         I. Sixth and Fourteenth Amendment Sentencing Claims

         Erickson 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.

         II. Eighth Amendment Claim

         Erickson 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.

         Erickson 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).

         The 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 ยง 2255 petition on July 15, 2011, but that motion did not include any allegation of an Eighth Amendment violation. ...


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