United States District Court, W.D. Arkansas, Texarkana Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT U.S. MAGISTRATE JUDGE.
is Anthony Morine (“Morine”) who is proceeding
pro se. On April 6, 2017, Morine filed a Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence. ECF No. 32. After being directed by the Court to
respond, the Government filed a response to this Motion. ECF
Motion was referred for findings of fact, conclusions of law,
and recommendations for the disposition of the case. The
Court has reviewed the Motion and the response; and based
upon that review, the Court recommends this Motion be
March 7, 2012, Morine was named in a one-count Indictment
filed in the Western District of Arkansas, charging him with
distributing more than 28 grams of cocaine base within 1000
feet of the real property of a public housing facility, in
violation of Title 22 U.S.C. §§ 841(a)(1),
(b)(1)(B)(iii) and 860(a). ECF No. 1.
August 31, 2012, Morine appeared with counsel before the
Honorable Susan O. Hickey for a change of plea hearing. ECF
No. 16. A written plea agreement was presented to the Court
that set forth the terms of Morine's agreement to plead
guilty to the Indictment. ECF No. 17. Morine's Plea
Agreement contained a Waiver of Appellate and Post-Conviction
Rights. ECF No. 17 ¶ 6. The Court accepted Morine's
plea and ordered a Presentence Investigation Report
the Probation Office issued Morine's final PSR. The PSR
found Morine to be a Career Offender under the provisions of
the United States Sentencing Guidelines § 4B1.1,
resulting in a Total Offense Level of 31, following a
three-level reduction for acceptance of responsibility. PSR
¶¶ 21-24. Morine's criminal history score was
determined to be 10, which would normally result in a
criminal history category of V. PSR ¶¶ 56-58.
However, because Morine is a Career Offender, his criminal
history category became VI. PSR ¶ 59. Morine's
statutory sentencing range called for a minimum term of
imprisonment of 5 years and a maximum term of 80 years. PSR
¶ 100. Morine's Total Offense Level of 31 and
Criminal History category of VI combined to produce an
advisory guideline range of 188 to 235 months imprisonment.
PSR ¶ 101.
January 23, 2013, Morine appeared before the Honorable Susan
O. Hickey for sentencing. ECF No. 24. At the conclusion of
the hearing, the Court sentenced Morine to 120 months
imprisonment, with credit for time served in federal custody,
8 years supervised release, and a $100 special assessment.
ECF No. 25. The judgment was entered on January 24, 2013.
Id. Morine waived his right to directly appeal his
conviction and sentence as a part of the Plea Agreement. ECF
No. 17 ¶ 6. Therefore, no direct appeal was filed.
did subsequently file two motions for reduction of sentence.
The first was filed on February 19, 2015 (ECF No. 27) and the
second filed on June 8, 2015 (ECF No. 28). He acknowledged in
the second motion that he was not entitled to relief as
requested in the first motion for reduction of sentence. The
Court denied both of these motions on June 15, 2015. ECF No.
April 7, 2017, Morine filed the instant pro se
Motion under 28 U.S.C. § 2255 seeking to vacate, set
aside, or correct his sentence, along with a memorandum brief
in support thereof. ECF Nos. 32-33. At the same time, Morine
also filed a Motion for an Evidentiary Hearing. The Court
directed the United States to file a response to the Motion
to Vacate, Set Aside, or Correct Sentence. ECF No. 36. The
Government responded (ECF No. 40), and this Motion is ripe
§ 2255 motion is fundamentally different from a direct
appeal. The Court will not reconsider an issue, which was
decided on direct appeal, in a motion to vacate pursuant to
§ 2255. See United States v. Davis, 406 F.3d
505, 511 (8th Cir. 2005); Dall v. United States, 957
F.2d 571, 572 (8th Cir.1992) (“Claims which were raised
and decided on direct appeal cannot be re-litigated on a
motion to vacate pursuant to 28 U.S.C. § 2255 .”).
under 28 U.S.C. § 2255 is reserved 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.” United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996).