govinfo:USCOURTS-moed-4_24-cv-00164-0

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MISSOURI 
EASTERN DIVISION 
 
 
ANTONIO SHAW,    )      
) 
                                                           )  
Movant,    ) 
)  
v.      ) No. 4:24-CV-164 HEA 
                                                          )  
UNITED STATES OF AMERICA,  )       
)  
Respondent.    ) 
 
 
OPINION, MEMORANDUM AND ORDER 
This matter is before the Court on Movant Antonio Shaw’s Motion to Vacate, 
Set Aside or Correct Sentence  pursuant to 28 U.S.C. § 2255.   (ECF No. 1).   The 
United States of America responded and opposes the motion.  Movant failed to file 
a traverse, and the time to do so has expired. Therefore, the motion is ripe for review. 
For the reasons set forth below, Movant’s Motion to Vacate will be denied.  
I. Procedural History 
          On August 27, 2010 , Movant was charged as  a felon in possession of 
ammunition in violation of 18 U.S.C. § 922(g)(1).  See United States v. Shaw, 4:10-
CR-471 HEA, ECF No. 10.  Movant was ultimately charged with a co-conspirator 
in a six-count, third superseding indictment with  conspiracy to possess with intent 
to distribute marijuana, cocaine base , and ecstasy in violation of 21 U.S.C. §§  846 
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and 841(a)(1) (Count I); possessing and/or brandishing a firearm in furtherance of a 
drug-trafficking crime in violation of 18 U.S.C. §  941(a)(1)(A) (Count II); and 
possessing, brandishing, and /or discharging a firearm in furtherance of a drug-
trafficking crime in violation of 18 U.S.C. § 941(c)(1)(A) (Count III).   
Movant proceeded to a jury trial on September 18, 2012.  The Eighth Circuit 
summarized the evidence at trial as follows: 
Evidence at trial established that Shaw had distributed marijuana in the 
St. Louis area since he was in high school. On July 22, 2004, members 
of the St. Louis Metropolitan Police Department (“the police”) arrested 
Shaw and, during a search incident to arrest, discovered 19.85 grams of 
marijuana and $162 in cash. On March 11, 2006, the police stopped 
Shaw's vehicle for failure to obey a stop sign and found Shaw in 
possession of 57.58 grams of marijuana packaged in four individual 
plastic bags and $1,042 in cash. On November 16, 2007, the police 
arrested Shaw during the execution of a search warrant and found him 
in possession of .89 grams of crack cocaine, $1,776 in cash, and a fully-
loaded 9–mm semiautomatic pistol. The police never discovered user 
paraphernalia during these arrests. In addition to this evidence, two 
drug distributors testified that they collectively purchased at least 
seventy-five pounds of marijuana from Shaw between 2006 and 2008. 
They also testified that during these drug exchanges, Shaw carried a 
firearm. A drug- distribution expert opined that Shaw's activities 
involving marijuana and crack cocaine from 2004 to 2009 were 
indicative of an intent to distribute. Specifically, the expert cited the 
lack of user paraphernalia, the multiple single -dosage units packaged 
for distribution discovered during the March 2006 arrest, the large 
amounts of cash, Shaw's use of two cellular phones and several vehicles 
to avoid detection, and Shaw's carrying a firearm for protection. 
 
United States v. Shaw, 751 F.3d 918, 920 (8th Cir. 2014) 
On September 25, 2012, the jury returned its verdict finding Movant guilty on 
Count I, for conspiracy to possess with intent to distribute marijuana and cocaine 
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base, and on Count II for possessing and/or brandishing a firearm in furtherance of 
a drug trafficking crime.  The jury acquitted Movant of conspiracy to distribute 
ecstasy relevant to Count I, and of possessing, brandishing, and/or discharging a 
firearm in furtherance of a drug-trafficking crime as charged in Count III. 
The United States Probation Office prepared  a Presentence Investigation 
Report (“PSR”).  Movant’s Base Offense Level was 18, based on a total quantity of 
the equivalent of 35.98302 kilograms of marijuana.1  After receiving enhancements 
for using body armor , §  3B1.5(2)(A), and being an organizer  of the conspiracy, 
§ 3B1.1(c), Movant’s total offense level was 22. The PSR calculated Movant’s 
criminal history points to be 21, which corresponded to a Criminal History Category 
VI. Based on Movant’s Total Offense Level of 22 and Criminal History Category of 
VI, the PSR determined that the advisory guideline imprisonment range for Count I 
was 84-105 months.  In addition, Count II required a minimum term of imprisonment 
of seven years and a maximum term of life imprisonment, consecutive to any other 
 
1The total marijuana quantity was determined from the following: (1) 19.95 grams of 
marijuana from July 22, 2004 arrest (evidence introduced at trial); (2) 27.63 grams of marijuana 
from February 18, 2005 arrest (not introduced at trial); (3) 0.50 grams of marijuana from May 19, 
2005 arrest (not introduced at trial); (4) 57.58 grams of marijuana from March 11, 2006 arrest 
(evidence introduced at trial); (5) 14.03 grams of marijuana from August 8, 2006 arrest (not 
introduced at trial); and (6) 26.03 grams of marijuana from October 14, 2008 arrest (not introduced 
at trial). This totaled 145.72 grams of marijuana. To this number, the PSR added the marijuana 
equivalency for the .89 grams of cocaine base (3.1782 kg marijuana) seized from Movant  on 
November 16, 2007 (evidence that  was introduced at trial). The PSR also added 32.6592 kg of 
marijuana based on the testimony of a cooperator , who testified that he purchased 72 pounds of 
marijuana from Movant between 2006 to 2008.
 
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sentence imposed. The PSR noted that the Court could apply the murder cross 
reference of § 2D1.1(d)(1),  but the Government declined to ask for a life sentence 
and, instead, asked for an upward variance to 35 years based on the murders. 
Movant filed objections to the PSR , including objections to the criminal 
history computation, the two-level enhancement for use of body armor, and the two-
level enhancement for an aggravating role under § 3B 1.1(c).  The Government 
opposed Movant’s objections.  
On April 30, 2013, Movant appeared for sentencing.  The Government called 
several witnesses at the sentencing hearing regarding Movant’s involvement in a 
double homicide in 2008.  The Court overruled Movant’s objections to the PSR. The 
Court found Movant responsible for the murders and granted an upward variance  
and sentenced him to a 210 -month term of imprisonment on Count I and a 168-
month term of imprisonment on Count II to be served consecutively. 
Movant appealed his conviction to the Eighth Circuit Court of Appeals.   On 
appeal, Movant challenged the consideration of a seven-year-to-life statutory range 
on the § 924(c) conviction in Count II and argued that it was in violation of Alleyne 
v. United States, 570 U.S. 99  (2013).  The Government conceded this argument.  
Movant also argued that the Court’s upward variance from the applicable guideline 
range was procedurally and substantively improper , and that the evidence was 
insufficient to support the guilty verdicts .  The Eighth Circuit a ffirmed Movant’s 
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conviction but remanded for a new sentencing considering a five -year mandatory 
minimum on Count II. Shaw, 751 F.3d at 923. 
At resentencing, Movant’s counsel highlighted his rehabilitation in prison and 
asked the Court to recognize the issue in Alleyne and order a lower sentence. The 
Government asked the Court to reissue the same sentence, noting that the Court’s 
original sentence was above the statutory minimum and,  therefore, the lowering of 
the statutory minimum should not affect the outcome.  On resentencing, t he Court 
reimposed the same sentence.  
Movant again appealed to the Eight Circuit. Movant’s counsel moved to 
withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing 
that the drug quantity attributed to Movant for purposes of calculating his advisory 
guideline range was not supported by the evidence, and that in choosing a sentence 
above the g uideline range, the Court erred in considering evidence presented at 
sentencing regarding uncharged criminal conduct.  In a pro se  brief, Movant 
additionally argued the following: (1) the district court failed to remedy the Alleyne 
error; (2) the evidence did not support his conviction for conspiring to distribute 
cocaine base; (3) the evidence did not support certain enhancements included in the 
calculation of his total offense level under the Sentencing Guidelines; and (4) the 
court erred in calculating his criminal history. 
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On March 23, 2015, the Eighth Circuit issued its opinion as to Movant ’s 
second appeal.  Movant’ s challenges to the sufficiency of the evidence, the 
enhancements other than the drug quantity used in calculating his offense level, and 
his criminal history were rejected by the Eighth Circuit, because those issues either 
were not raised or were decided adversely in Movant’s first  appeal.  As to the 
remaining issues, the Eighth Circuit ruled  as follows: (1) to the extent that Movant 
challenged the drug-quantity calculation, there was no clear error; (2) the d istrict 
court did not err in considering evidence of uncharged criminal conduct that was 
presented at the sentencing hearing; (3) there was no merit to Movant’s argument 
that this Court failed to remedy its Alleyne sentencing error on remand; and (4) the 
sentence was not unreasonable. 
On July 13, 2015, the Court reduced Movant’s sentence , as he was a 
beneficiary of the “Drugs Minus Two” amendment to the Sentencing Guidelines that 
lowered drugs guidelines by two points. The guideline range on Count I was reduced 
to 70-87 months, and in his Motion for Retroactive Application of the Sentencing 
Guidelines, Movant requested a proportionate decrease in his sentence on Count I 
from 210 months to 174 months. The Government did not oppose Movant’s motion. 
The Court granted the motion and reduced Movant’s sentence to 174 months as to 
Count I, consecutive to the 168- month sentence of Count II, for a total sentence of 
342 months.   
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On March 17, 2016, Movant filed a motion to vacate his sentence pursuant to 
28 U.S.C. § 2255.  Shaw v. United States , No. 4:16-CV -366 HEA (“First Habeas 
Case”). Movant raised 14 claims in his First Habeas Case including the following :  
prosecutorial misconduct for communicating with the jury during deliberations and 
for introducing evidence that he knew to be perjured; violations of his rights under 
the Fifth and Sixth Amendments because he was absent during the answering of jury 
questions; a violation of his right under  the Sixth Amendment to a unanimous jury 
verdict; ineffective assistance of trial counsel because his counsel refus ed to honor 
his decision to testify, failed to present evidence of his history of drug abuse, failed 
to move for a mistrial when a juror was unwilling to deliberate, and failed to keep 
him informed of important developments and to communicate; ineffective assistance 
of appellate counsel because on appeal his counsel failed to challenge erroneous jury 
instructions, failed to petition for a rehearing en banc , failed to challenge his 
calculated criminal history points, failed to challenge the two-level enhancement for 
the use of body armor, failed to challenge the two-level enhancement for aggravating 
role, and failed to raise the prosecutor’s communications with the jury. 
The Court denied all of Movant’s claims and refused to issue a certificate of 
appealability.  Movant appealed to the Eighth Circuit, but his appeal was dismissed. 
Shaw v. United States, No. 19-1396, 2019 WL 4025860 (8th Cir. July 25, 2019). 
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Once again, Movant has moved to vacate , set aside or correct his sentence 
under 28 U.S.C. § 2255. 
II. Standard of Review 
Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on the grounds that 
the sentence was imposed in violation of the Constitution or laws  of the United 
States, or that the court lacked jurisdiction to impose such a sentence. “[A]n error of 
law does not provide a basis for collateral attack unless the claimed error constituted 
a fundamental defect which inherently results in a complete miscarriage of justice.” 
Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (internal citations 
omitted).  
The Court must hold an evidentiary hearing to consider claims in a § 2255 
motion “‘[u]nless the motion and the files and records of the case conclusively show 
that the prisoner is entitled to no relief.’” Feather v. United States, 18 F.4th 982, 989 
(8th Cir. 2021) (cleaned up; quoted case omitted). The Court may dismiss a claim 
without an evidentiary hearing “when the claim is inadequate on its face or if the 
record affirmatively refutes the factual assertions upon which it is bas ed.” Id. The 
Court finds th at Movant’s claims can be conclusively determined based upon the 
parties’ filings and the record in this case.   
  
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III. Discussion 
In 2022, Missouri voters adopted Amendment 3, which resulted in the 
expungement of many state marijuana convictions. Mo. Const. Art. XIV, § 2.10(7)-
(8). Movant asserts in his Motion to Vacate that in November 2023, five of his arrests 
and state court convictions for misdemeanor possession of marijuana were expunged 
from his criminal record.2  The Government introduced evidence of these arrests and 
convictions at his federal criminal trial, and the PSR referred to these arrests and 
convictions as a basis for Movant’s total offense level calculation.  In his Motion to 
Vacate, Movant argues that these arrests and convictions can no longer be deemed 
to be part of the criminal conspiracy for which he was convicted, because they have 
been expunged from his record.  Movant moves that the Court vacate his sentence, 
and that he be resentenced “to reflect the changes in the underlying facts of his case.”  
(ECF No. 1 at 3). 
The Government opposes Movant’s Motion to Vacate on two grounds.  First, 
it argues the Motion to Vacate is a successive § 2255 motion, which is barred under 
28 U.S.C. § 2244 and applicable case law. Second, the Government argues that even 
 
2Movant states that six of his arrests and convictions have been expunged, but in his Motion 
to Vacate, Movant only lists the following five arrests for misdemeanor possession of marijuana  
as having been expunged: (1) on July 22, 2004, for possession of 19.85 grams; (2) on February 18, 
2005, for possession of 27.63 grams; (3) on May 19, 2005, for possession of 0.50 grams; (4) on 
March 11, 2006, for possession of 57.58 grams; and (5) on October 14, 2008, for possession of 
26.03 grams.  Movant did not submit proof of the expungements or the dates the expungements 
were entered. 
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if the motion was not barred, it fails on the merits, because Missouri’s expungement 
of certain marijuana convictions is not recognized by the Sentencing Guidelines, and 
Movant’s federal sentence is unaffected by the expungements .  The Court will 
address each of these arguments in turn. 
A. Movant’s Motion  to Vacate  Is Not a Successive  28 U.S.C. § 
2255 Motion. 
 
The Government contends that Movant has filed an unauthorized Motion to 
Vacate under § 2255 that must be dismissed.  It points to the fact that Movant moved 
for post-conviction relief in 2016, and the Court reached the merits of that motion to 
vacate and denied relief. It argues that the Antiterrorism and Effective Death Penalty 
Act ( “AEDPA”) imposes strict limitations on “second or successive” motions to 
vacate, which Movant has not met.   
The AEDPA does impose  strict limits on second or successive habeas 
petitions.  First, in order to proceed, a second or successive habeas petition must fall 
within one of two narrow categories – the claim must “rel[y] on a new and retroactive 
rule of constitutional law” or “alleg[e] previously undiscoverable facts that would 
establish [the petitioner’s] innocence.” Banister v. Davis, 590 U.S. 504, 509 (2020); 
see also § 2244(b)(2). Second, a party seeking relief cannot bring a second or 
successive habeas petition directly in the district court, but rather he or she must first 
seek permission to file the petition with a circuit court of appeals and make a “prima 
facie showing” that the petition satisfies one of § 2244(b)(2)’s exceptions.  
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§ 2244(b)(3). A circuit court of appeals must grant authorization for the movant to 
proceed in district court. The district court must then independently confirm that the 
petition satisfies the requirements of § 2244(b)(2). See § 2244(b)(4).  
Here, Movant did not seek leave with the Eighth Circuit to file a second or 
successive habeas petition, and his claim for relief does not appear to fall within one 
of § 2244(b)(2)’s two narrow categories exceptions.  That said, very recently , the 
Eighth Circuit ruled that a §  2255 motion to vacate  that was based on Missouri’s 
Amendment 3 and the expungement of a marijuana conviction – a claim that could 
not have been brought when that petitioner filed his first § 2255 motion, because the 
motion predated Amendment 3 and the expungement – raised a “new ripe claim ” 
and, therefore, the new motion to vacate was not “second or successive” and subject 
to the statutory limitations.  Lozano v. United States, 171 F.4th 1025, 1031 (8th Cir. 
2026).   
Here, Movant could not have brought his current claim in 2016 when he filed 
his initial Motion to Vacate, because Missouri had not yet passed Amendment 3, and 
his convictions had not been expunged. Accordingly, Movant is bringing a new ripe 
claim, and Movant’s new Motion to Vacate is not subject to the statutory limits on 
second or successive habeas petitions.  
  
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B. Movant’s Marijuana-Related Convictions Remain Valid Convictions 
Under the Sentencing Guidelines, Despite the State Expungement. 
 
In his Motion, Movant argues that five of the arrests and subsequent state court 
convictions that formed the basis for his federal conspiracy conviction, as well as  
the total offense level calculation in the PSR, can no longer be considered, because 
those arrests and convictions have been expunged.  Movant requests that the Court 
vacate, set aside, or correct his sentence as the basis for his original offense level has 
been altered.  
In so far as Movant seeks to have his conviction overturned because his state 
marijuana possession misdemeanors were expunged, Movant’s motion is without 
merit. Movant’s past marijuana possessions were used as evidence of  his 
participation in the drug conspiracy, but the expungement of those convictions does 
not erase the fact that he did possess marijuana with the intent to distribute it.  An 
officer would not be prohibited from testifying about the fact s of an arrest and 
Movant’s possession of marijuana  because the misdemeanor was expunged. See  
First Habeas Case, ECF No. 27 at 3-4 (summary of officer testimony describing 
Movant’s possession of marijuana). Movant’s past possessions of marijuana remain 
provable events despite the expungement.  In addition, there was evidence presented 
at trial that Movant possessed marijuana with the intent to distribute that was 
unrelated to his expunged convictions.  For example, a cooperator testified that he 
purchased 72 pounds of marijuana from Movant.  Movant’s request to have his 
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conspiracy conviction overturned because his state marijuana possession 
misdemeanors were expunged is without merit, and therefore, denied. 
Finally, the Court will address Movant ’s request that he be  resentenced 
because his arrests and convictions for marijuana possession, which formed a basis 
for his total offense level calculation under the Sentencing Guidelines, have been 
expunged. “Sentences for expunged convictions are not counted, ” for purposes of 
computing criminal history under the G uidelines. U.S.S.G. § 4A1.2(j) .  However, 
the Guidelines do not define the term “expunged.” According to the Eighth Circuit, 
“when determining whether a conviction is ‘expunged’ under the guidelines, a court 
must examine the ‘basis’ for the expunction.” United States v. Townsend, 408 F.3d 
1020, 1024 (8th Cir. 2005).  The Eighth Circuit has further instructed that “a state’s 
use of the term ‘expunge’ is not controlling in determining whether a conviction is 
properly included in calculating a defendant's criminal history category, ” and it 
defined  expunged convictions  under the G uidelines as those : “(1) reversed or 
vacated due to legal errors or later -discovered evidence exonerating the defendant, 
or (2) ruled constitutionally invalid.” Id. at 1023 (citing § 4A1.2, cmt. n.6).   
More recently, in Lozano , the Eighth Circuit examined whether Missouri’s 
expungement of convictions for nonviolent marijuana offenses under Amendment 3 
qualified as “expunged” under the Guidelines. 171 F.4th  at 1033. After examining 
the definition of expunged set forth in Townsend, the Eighth Circuit concluded that 
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the expungement of a conviction as a result of Missouri’s Amendment 3 was not an 
expunged conviction within the meaning of the Guidelines.   Id. at 1034.  
Accordingly, t he C ourt finds  Movant’s prior marijuana convictions were not 
expunged for purposes of his calculated criminal history under the Guidelines, and 
his claim that these arrests and convictions can no longer be considered for purposes 
of sentencing is meritless.  Id. The Court denies and dismisses Movant’s Motion to 
Vacate on the merits.   
IV. Certificate of Appealablity 
 
       The federal statute governing certificates of appealability provides that “[a]  
certificate of appealability may issue . . . only if the applicant has made a substantial 
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A substantial 
showing of the denial of a constitutional right requires that “issues are deba table 
among reasonable jurists, a court could resolve the issues differently, or the issues 
deserve further proceedings.”  Cox v. Norris , 133 F.3d 565, 569 (8th Cir. 1997 ).  
Having thoroughly reviewed the record in this case, the Court finds that Movant has 
failed to make the requisite “substantial showing.” See 28 U.S.C. § 2253(c)(2); Fed. 
R. App. P. 22(b).  Therefore, a certificate of appealability will not issue.  
Accordingly, 
IT IS HEREBY ORDERED  that Antonio Shaw’s Motion to Vacate, Set 
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 is DENIED.  [ECF No. 1] 
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IT IS FURTHER ORDERED  that the Court will not issue a certificate of 
appealability as to any of the claims raised in the § 2255 Motion to Vacate because 
Movant has not made a substantial showing of the denial of a constitutional right. 
See 28 U.S.C. § 2253(c)(2). 
A separate judgment in accordance with this Opinion, Memorandum and 
Order shall issue this same date. 
 Dated this 5th day of June, 2026. 
 
 
 
 
 
   
      HENRY EDWARD AUTREY 
 UNITED STATES DISTRICT JUDGE 
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