Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jacardo Omar Dixon v. United States of America.

March 19, 2013

JACARDO OMAR DIXON, MOVANT,
v.
UNITED STATES OF AMERICA.



ORDER

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. RELEVANT BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 . . . . . 3 B. Standards Applicable to Sixth Amendment . . . . . . . . . . . . . . . . . . 5 IV. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 A. Request for Evidentiary Hearing . . . . . . . . . . . . . . . . . . . . . . . . . 7 B. The Movant's Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 C. Certificate of Appealability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. INTRODUCTION

The matter before the court is Jacardo Omar Dixon's Motion Under 18 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. Jacardo Omar Dixon ("the movant") filed such motion on May 5, 2011 (civil docket no. 1). The movant requests an evidentiary hearing (civil docket no. 2). On May 15, 2012, the court, among other things, ordered the government to respond and ordered counsel to file responsive affidavits (civil docket no. 3). Consistent with such order, counsel filed responsive affidavits (civil docket nos. 4, 5 & 8), and the government filed a response on August 15, 2012 (civil docket no. 11). The movant filed a reply on September 21, 2012 (civil docket no. 14). The matter is fully briefed and ready for a decision.

II. RELEVANT BACKGROUND

On October 2, 2007, the grand jury charged the movant with two counts of distributing cocaine base, after a prior felony drug conviction, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 (count 1) and 21 U.S.C. §§ 841(a)(1), 841 (b)(1)(B) and 851 (count 2).

During the course of his case, the movant had three lawyers: JoAnne Lilledahl, Jane Kelly and Patrick Kelly. Attorney Lilledahl represented the movant during his initial appearance. Jane Kelly represented him from October 24, 2007 through November 8, 2007. She withdrew due to a conflict of interest. Attorney Patrick Kelly first appeared on behalf of the movant on November 9, 2007 and continued to represent him through his sentencing and appeal.

The movant elected to proceed to trial in spite of three written plea offers. Trial commenced on January 9, 2008, and the jury returned guilty verdicts on both counts on January 11, 2008. The movant testified at trial. Attorney Patrick Kelly moved for judgment of acquittal at the close of the government's evidence and at the close of all of the evidence. The court denied the movant's request for relief both times.

At the July 10, 2008 sentencing, the court arrived at an advisory guideline range of 120 to 150 months imprisonment based on a total adjusted offense level of 26 and a criminal history category of VI. After recognizing that the movant faced a statutory mandatory minimum of 120 months imprisonment and considering all of the factors at 18 U.S.C. § 3553(a), the court imposed a 150 month term of imprisonment.

The movant appealed to the Eighth Circuit Court of Appeals. He challenged the sufficiency of the evidence and a jury instruction on aiding and abetting. Attorney Patrick Kelly filed a brief pursuant to Anders v. California, 386 US 738, 744 (1967). Pursuant to Penson v. Ohio, 488 US 75 (1988), the Eighth Circuit Court of Appeals found no non-frivolous issues for appeal and affirmed the movant's conviction. United States v. Dixon, 360 F. App'x 693 (8th Cir. 2011). A petition for rehearing by panel and a petition for rehearing en banc was denied. The movant did not seek further appellate review.

On November 9, 2011, the court relied on 18 U.S.C. § 3582(c)(2) and Amendment 750 to reduce the movant's sentence to 120 months (the statutory mandatory minimum).

In the instant motion, the movant raises four claims of ineffective assistance of counsel. First, he claims that his counsel failed to advise him of the consequences of pleading guilty or proceeding to trial. Second, he claims that his counsel failed to adequately investigate the facts and law surrounding a traffic stop and failed to file a motion to suppress. Third, he claims that counsel did not adequately seek judgment of acquittal. Finally, he argues that counsel failed to file a sentencing memorandum setting forth mitigating information and moving for a departure below the advisory sentencing guidelines. The government resists all of the movant's claims.

III. LEGAL STANDARDS

A. Standards Applicable to Motion Pursuant to 28 U.S.C. § 2255 28 U.S.C. § 2255 allows a prisoner in custody under sentence of a federal court to move the sentencing court to vacate, set aside or correct a sentence. To obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.