Rey v. United States, No. 14-1984 (8th Cir. 2015)
Annotate this CaseRey was convicted of conspiracy to distribute cocaine base, 21 U.S.C. 841(a)(1), 841(b)(1), and 846. The jury found that the conspiracy involved between five and 50 grams of cocaine base. The district court determined that the conspiracy involved between 50 and 150 grams of cocaine base and sentenced Rey to 240 months’ imprisonment. The Eighth Circuit affirmed. In 2009, Rey filed a preprinted form entitled “Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence.” The court rejected his claims that he did not receive a fair trial, his trial counsel was ineffective, and the court sentenced him based on a greater drug weight than found by the jury. Later, Rey filed a letter stating that he did not intend to file a motion, but was merely seeking assistance of counsel to help him file a motion. The court responded that it would “await any further filing ... to determine whether it constitutes a second or successive 2255 petition.” In 2014, with assistance of counsel, Rey filed a 2255 motion, arguing that his sentence violated the Sixth Amendment in light of the Supreme Court’s 2013 Alleyne decision. The district court dismissed it as an uncertified second or successive petition and found that the motion was untimely because the Supreme Court has not declared Alleyne to be retroactively applicable. The Eighth Circuit affirmed.
Court Description: Doty, Author, with Wollman and Gruender, Circuit Judges] Prisoner case - Habeas. The district court properly considered Rey's first filing as a motion for relief under Section 2255 as it was in both form and substance a Sec. 2255 motion; under the circumstances presented, the district court did not err in dismissing Rey's instant motion as second or successive.
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