Jimmie Don Kitterman v. United States ( 1996 )

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No. 96-1352
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Jimmie Don Kitterman, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: August 7, 1996
Filed: August 20, 1996
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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
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PER CURIAM.
Kitterman pleaded guilty to various drug charges, and the
District Court1 sentenced him to 122 months imprisonment. On
direct appeal, this Court affirmed. United States v. Kitterman,
16 F.3d 1229 (8th Cir. 1994) (per curiam) (table). Kitterman then
filed this 28 U.S.C. § 2255 (1994) motion, asserting, among other
things, a double-jeopardy claim, various ineffective-assistance
claims, and claims concerning the enhancement of his sentence
pursuant to 21 U.S.C. § 841(b)(1)(B) (ten-year mandatory minimum
for multiple drug-offense convictions). The District Court denied
Kitterman's § 2255 motion without an evidentiary hearing, and
Kitterman appeals.
We believe the District Court properly denied Kitterman's
section 2255 motion without an evidentiary hearing, because after
de novo review, we conclude the motion and the files and records of
1
The Honorable Donald J. Stohr, United States District Judge
for the Eastern District of Missouri.
the case conclusively show Kitterman was not entitled to relief.
See Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir. 1992)
(standard of review).
Kitterman's double-jeopardy arguments are foreclosed for the
reasons set forth in United States v. Ursery, 116 S. Ct. 2135,
2148-49 (U.S. 1996) (holding civil forfeitures under 21 U.S.C.
§ 881 (a)(6) and (7) are neither "punishment" nor criminal for
purposes of Double Jeopardy Clause), and United States v. One 1970
36.9' Columbia Sailing Boat, No. 95-3158, 1996 WL 403038, at *3-4
(8th Cir. July 19, 1996) (holding Ursery applies to forfeitures
under § 881(a)(4)). We agree with the District Court that
Kitterman procedurally defaulted his mandatory-minimum-sentence
claims. See Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir.
1993) (per curiam) (§ 2255 relief not available to correct errors
that could have been raised at sentencing or on direct appeal,
absent showing of cause and prejudice or actual innocence). We
need not consider Kitterman's argument that his attorney was
ineffective for not raising the mandatory-minimum-sentence claims
on direct appeal, because Kitterman did not make this argument
below. See Thomas v. United States, 27 F.3d 321, 325 (8th Cir.
1994). Finally, we conclude Kitterman abandoned the other claims
he raised below, because he did not address them in his opening
appellate brief. See Fed. R. App. P. 28(a).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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