United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
matter is before the Court upon initial review of the pro se
motions to vacate under 28 U.S.C. § 2255 filed by the
defendant, Joshua Z. Dortch. Filing 82; filing 83. The
Court's initial review is governed by Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
States District Courts, which provides:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
§ 2255 movant is entitled to an evidentiary hearing
unless the motion and the files and records of the case
conclusively show that the movant is entitled to no relief.
§ 2255(b); Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to
vacate under § 2255 may be summarily dismissed without a
hearing if (1) the movant's allegations, accepted as
true, would not entitle the movant to relief, or (2) the
allegations cannot be accepted as true because they are
contradicted by the record, inherently incredible, or
conclusions rather than statements of fact. Engelen v.
United States, 68 F.3d 238, 240 (8th Cir. 1995); see
also Sinisterra, 600 F.3d at 906.
defendant was charged in 2010 with being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). Filing 1. He pled guilty. Filing 16; filing 18. He
was sentenced to 65 months' imprisonment, to be followed
by 3 years' supervised release. Filing 40. He was
initially sentenced on June 14, 2011, see filing 29,
but after some post-sentencing motions the operative amended
judgment was entered on July 25, 2013. See filing
39. The defendant has now filed two motions styled as
"2255 petition[s]": one filed April 3, 2018 (filing
82), and the other filed April 9 (filing 83).
initial question is whether the defendant's purported
§ 2255 motions are timely. Generally, a § 2255
motion must be filed within 1 year from "the date on
which the judgment of conviction becomes final." §
2255(f)(1). And "[f]inality attaches when [the Supreme]
Court affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when the time
for filing a certiorari petition expires." Clay v.
United States, 537 U.S. 522, 527 (2003). The
defendant's motions were both filed far more than a year
after his conviction became final. They are barred by the
statute of limitations.
beyond that, the defendant's allegations do not support
relief under § 2255. Section 2255 was intended to afford
federal prisoners a remedy identical in scope to federal
habeas corpus. United States v. Sun Bear, 644 F.3d
700, 704 (8th Cir. 2011). The statute provides that
[a] prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground 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, may move the court
which imposed the sentence to vacate, set aside or correct
§ 2255(a). It provides a remedy for jurisdictional and
constitutional errors, none of which are at issue here.
the defendant complains that he is being held without bail in
Lancaster County "on the pretext that [he was] allegedly
involved in a robbery . . . ." Filing 82 at 3. But
nothing about that suggests that he is in custody under a
federal sentence, or that his federal conviction or sentence
were unlawfully imposed. Even a federal detainer-if there is
one-does not establish a ground for relief under § 2255.
See Shigemura v. United States, 726 F.2d 380, 381
(8th Cir. 1984). Simply put, the fact that the defendant is
being held in state custody provides no basis for a
collateral attack on his federal conviction or sentence.
sake of completeness, the Court notes that even if the
defendant's petition is construed under the provisions of
28 U.S.C. § 2241(c)(3), "[p]ublic policy and 28
U.S.C. § 2283 discourage federal court interference with
state court proceedings." Davis v. Muellar, 643
F.2d 521, 525 (8th Cir. 1981) (citing Younger v.
Harris, 401 U.S. 37, 40-41 (1971)). "The principle
of comity is an even more vital consideration reinforcing the
doctrine of restraining federal intervention on the principle
of an inadequate equitable basis for relief." Bonner
v. Circuit Court of City of St. Louis, Mo., 526 F.2d
1331, 1336 (8th Cir. 1975) (quotation omitted). Accordingly,
before a federal court may review the defendant's claims,
he must have exhausted his available state remedies.
Moore v. United States, 875 F.Supp. 620, 622 (D.
Neb. 1994). The Court is obligated to abstain from the
exercise of habeas jurisdiction if the issues raised may be
resolved either by trial on the merits in the state court or
by other state procedures available to the defendant.
"practical effect" of these requirements is that
habeas review of dispositive claims is not attainable prior
to the state trial. Id. And even nondispositive
claims must be exhausted by pretrial presentment to the state
court. See Id. The defendant here has done none of
those things. And while at some point the failure of a state
court to provide a state forum for resolution of a claim may
warrant federal intervention, see Braden v. 30th Judicial
Circuit Court ...