Ramey v. U.S.

• Decision Date: 29 December 1993
• Docket Number: No. 93-1803,93-1803
• Citation: 8 F.3d 1313
• Parties: Charles RAMEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1313

8 F.3d 1313

Charles RAMEY, Appellant, v. UNITED STATES of America, Appellee.

No. 93-1803.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 28, 1993.

Decided Nov. 18, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied Dec. 29, 1993.

Appellant pro se.

Patricia McGarry, Asst. Atty. Gen., St. Louis, MO, argued, for appellee.

Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

PER CURIAM.

Charles Ramey appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We affirm.

Ramey and three co-defendants (Vaughn, Orr, and Dortch) were charged with drug offenses following an investigation in July 1990. Ramey agreed to plead guilty to Count V, possession with intent to distribute cocaine, and to testify truthfully for the government at all related trials. In exchange, the government agreed to move to dismiss with prejudice Counts I and VI of the indictment against Ramey, and to file on his behalf a U.S.S.G. § 5K1.1 motion for departure based on substantial assistance.

Following the guilty plea, Ramey failed to cooperate with the government; he did not contact the prosecutor as directed. As a result, the government did not file a section 5K1.1 motion.

In a written response to the PSR, Ramey's counsel objected to the PSR's use of the total quantity of cocaine seized, rather than the quantity found on Ramey, to calculate the offense level. Ramey's different counsel at sentencing noted the previous objection; observed that the stipulation of facts stated the drugs in all the counts would be considered; and argued that, because the government was not "living up to the stipulation by filing the departure," the stipulation should not control, especially when the PSR recognized that Ramey did not play a principal part in the conspiracy. The district court overruled the objection, finding that Ramey knew about the drugs, had access to them, and could have reasonably foreseen the amount of drugs involved. The court sentenced Ramey to 53 months in prison with three years supervised release, and, on the government's motion, dismissed Counts I and VI. Ramey did not appeal.

Section 2255 relief is not available to correct errors which could have been raised at trial or on direct appeal, absent a showing of cause and prejudice, United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982), or a showing that the alleged errors were fundamental defects resulting in a complete miscarriage of justice. See United States v. Smith, 843 F.2d 1148, 1149 (8th Cir.1988) (per curiam). Ramey procedurally defaulted by not filing a direct appeal challenging the quantity of cocaine attributed to him in the calculation of his offense level. Ramey has neither shown cause and prejudice to excuse his default nor made any showing of factual innocence, and his motion is thus procedurally barred from review under section 2255.

Nevertheless, to the extent Ramey is claiming his plea was involuntary because his counsel rendered ineffective assistance, Ramey must overcome "strong presumptions" of counsel's competence and of the voluntariness of his guilty plea based on his representations at the plea hearing. See Bramlett v. Lockhart, 876 F.2d 644, 647 (8th Cir.), cert. denied, 493 U.S. 941, 110 S.Ct. 341, 107 L.Ed.2d 330 (198...