Anderson v. United States

2005 DNH 046

• Court: District Court, D. New Hampshire
• Decided: March 18, 2005
• Docket: CV-04-268-SM
• Status: Published

Opinion

Anderson v. United States CV-04-268-SM 03/18/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Cheryl Anderson, Petitioner

v. Civil No. 04-268-SM Opinion No. 2005 DNH 046 United States of America, Respondent

O R D E R

Cheryl Anderson challenges her conviction and sentence under

the provisions of 28 U.S.C. § 2255. In her response to the

government's opposition to the petition, she says she is not

claiming that her trial or appellate counsel provided ineffective

or constitutionally deficient representation. See Strickland v.

Washington, 466 U.S. 668 (1984). Rather, she raises a number of

claims, most of which do not take into account the procedural

history of her case

Petitioner was convicted of bank robbery (18 U.S.C.

§ 2113(a)) not based upon evidence presented at a trial, but upon

her own knowing, intelligent and voluntary plea of guilty. The plea was providently entered and nothing presented by petitioner,

or that appears in the record, suggests otherwise.

Petitioner does raise an issue related to her sentence. She

claims that her Guideline Sentencing calculation was erroneous in

that a prior state conviction for robbery was improperly counted

in determining her career offender status. To support her

position she attaches an incomplete copy of the state judgment -

she conveniently omits the pages related to the sentence imposed

for the robbery. But, it does not matter. Review of the

Presentence Investigation Report discloses that she had four

prior convictions that gualified her as a career offender. Only

two are necessary, so, even if she is correct in her challenge of

the 1989 robbery conviction, no prejudice resulted. She is still

a career offender and her criminal history category would be

CHC VI even if the 1989 robbery conviction is ignored.

In any event. Sentencing Guidelines violations, even when

established, do not automatically provide a basis for relief

under § 2255. More is needed. A petitioner must, in that

context, also show that the error represents "a fundamental

2 defect which inherently results in a complete miscarriage of

justice" or "an omission inconsistent with the rudimentary

demands of fair procedure." See Mateo v. United States, 310 F.3d

39, 42 (1st Cir. 2002); quoting Hill v. United States, 368 U.S.

424, 428 (1962) . Here no violation is established - the 1989

conviction was properly counted, and it is of no moment one way

or the other, since petitioner had two qualifying convictions to

spare. No possible prejudice could have resulted.

The other issues petitioner raises are completely without

merit.

The petition is hereby denied. The motion and the files and

the records of the case conclusively show that the petitioner is

entitled to no relief.

SO ORDERED.

Steven J. McAuliffe Chief Judge

March 18, 2005

cc: Cheryl Anderson, pro se Peter E. Papps, Esq.