United States of Am. v. Herman McGee, 201 F.3d 1022 (8th Cir. 2000). · Go Syfert
United States of Am. v. Herman McGee, 201 F.3d 1022 (8th Cir. 2000). Cases Citing This Book View Copy Cite
G Cite
cited 3× by 3 distinct cases, 2011–2019 · 2 courts · …may not be re-litigated under 2255. at p. 1023
15 citation events (13 in the last 25 years) across 4 distinct courts.
Top citers, strongest first. 14 distinct citers. How cited ↗
cited Cited as authority (rule) Pampkin v. United States
E.D. Mo. · 2025 · confidence medium
Withrow v. Williams, 507 U.S. 680, 720-21 (1993) (Scalia, J., concurring); Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003); United States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000).
discussed Cited as authority (rule) Erickson v. United States
D.S.D. · 2022 · confidence medium
“Issues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255 .” United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001) (citing United States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000) (per curiam)); Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003) (same).
cited Cited as authority (rule) Norris v. United States
E.D. Mo. · 2019 · confidence medium
Therefore, such questions “may not be re-litigated under § 2255.” United States v. McGee, 201 F. 3d 1022, 1023 (8th Cir. 2000).
cited Cited as authority (rule) Ntow v. United States
E.D. Mo. · 2019 · confidence medium
Therefore, such questions “may not be re-litigated under § 2255.” United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.2000).
cited Cited as authority (rule) Camberos-Villapuda v. United States
D.S.D. · 2019 · confidence medium
Wiley, 245 F.3d at 752 ; United States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000).
discussed Cited as authority (rule) Honken v. United States
N.D. Iowa · 2013 · confidence medium
In addition, it is well-settled that “[i]s-sues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255 .” United States v. Wiley, 245 F.3d 750, 751 (8th Cir.2001) (citing United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.2000)); see also Lefkowitz v. United States, 446 F.3d 788, 790-91 (8th Cir.2006) (concluding that the same issues that have been raised in a new trial motion and decided by the district court cannot be reconsidered in a subsequent collateral attack); Bear Stops v. United States, 339 F.3d 777, 780 (8th C…
cited Cited as authority (rule) Sun Bear v. United States
8th Cir. · 2011 · confidence medium
Therefore, such questions “may not be re-litigated under § 2255.” United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.2000).
cited Cited as authority (rule) United States v. Craig Ramon Chapman
8th Cir. · 2004 · confidence medium
United States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000) (per curiam).
cited Cited as authority (rule) United States v. Craig Ramon Chapman
8th Cir. · 2004 · confidence medium
United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.2000) (per cu-riam).
discussed Cited "see" United States v. Jeffrey Wiley
8th Cir. · 2001 · signal: see · confidence high
See United States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000) (per curiam). -2- The district court recognized this well established principle in refusing to grant Mr. Wiley a new trial on the basis of the trial judge's incompetence, but thought that the miscarriage-of-justice exception to the rule against relitigating matters decided on direct appeal required a reexamination of the sentence.
cited Cited "see" United States v. Jeffrey Wiley
8th Cir. · 2001 · signal: see · confidence high
See United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.2000) (per curiam).
discussed Cited "see" United States v. Calvin Edwards
8th Cir. · 2000 · signal: accord · confidence high
“Rehabilitation that takes place behind the prison walls after the original sentencing, however, is not relevant [at resentencing], since the sentencing court obviously could not have considered it at the time of the original sentencing.” United States v. Sims, 174 F.3d 911, 913 (8th Cir. 1999); accord United States v. McGee, 201 F.3d 1022, 1023 (8th Cir. 2000) (per curiam).
discussed Cited "see" United States of America v. Calvin Cornelius Edwards
8th Cir. · 2000 · signal: accord · confidence high
“Rehabilitation that takes place behind the prison walls after the original sentencing, however, is not relevant [at resentencing], since the sentencing court obviously could not have considered it at the time of the original sentencing.” United States v. Sims, 174 F.3d 911, 913 (8th Cir.1999); accord United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.2000) (per curiam).
discussed Cited "see, e.g." United States v. Ingram
N.D. Iowa · 2009 · signal: see, e.g. · confidence medium
See, e.g., United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.2000) (the defendant filed a pro se motion to add a supplemental issue on appeal after oral arguments — that he was entitled to a new trial on a drug conspiracy charge because trial of that charge was prejudiced by its misjoinder with a vacated firearms charge — but the court rejected that contention as “untimely” and “also without merit”).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Herman McGEE, Defendant-Appellant
99-1126.
Court of Appeals for the Eighth Circuit.
Feb 15, 2000.
201 F.3d 1022
Steven E. Holtshouser, Asst. U.S. Atty., St. Louis, MO, argued, for Plaintiff-Appel-lee., Burton Shostak, Clayton, MO, argued, for Defendant-Appellant.
Arnold, Bright, Loken.
Cited by 15 opinions  |  Published
PER CURIAM.

In 1991, Herman McGee was convicted of conspiracy to distribute cocaine and two counts of using firearms in connection with a drug-trafficking crime. He was sentenced to 240 months in prison for the drug conspiracy offense and to consecutive 60- and 240-month terms for the firearm offenses. We affirmed his conviction and sentence on direct appeal. See United States v. Edwards, 994 F.2d 417 (8th Cir.[*1023] 1993). McGee then moved for post-conviction relief under 28 U.S.C. § 2255. The district court [1] vacated the firearm convictions on the authority of Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), denied McGee’s other § 2255 claims, and represented him to 240 months in prison for the drug conspiracy offense. McGee appeals, raising two re-sentencing issues. We affirm.

First, McGee argues that the district court erred in refusing to reconsider the evidence supporting the drug quantity finding underlying his initial 240-month sentence for the drug conspiracy offense. However, McGee raised this drug-quantity issue on direct appeal, and we affirmed. See Edwards, 994 F.2d at 422-23. The issue may not be re-litigated under § 2255. See English v. United States, 998 F.2d 609, 612-13 (8th Cir.1993), cert. denied, 510 U.S. 1001, 114 S.Ct. 573, 126 L.Ed.2d 472 (1993). McGee argues his due process rights were violated by the absence of an adequate drug quantity finding, a contention not raised on direct appeal. As we said in United States v. Ward, 55 F.3d 412, 413 (8th Cir.1995), “even if [McGee’s] present argument were the kind of fundamental error cognizable on collateral attack, instead of a garden-variety question of fact of the sort that will occur in almost every drug-offense sentencing, his procedural default would prevent us from reaching the argument.”

Second, McGee argues the district court erred in resentencing by refusing to grant him a downward departure. At the resentencing hearing, McGee and his attorney requested a departure on a number of grounds. To the extent the request was based upon McGee’s post-sentencing rehabilitative conduct, it is barred as a matter of law by our subsequent decision in United States v. Sims, 174 F.3d 911 (8th Cir.1999). To the extent the request was based upon factors that could have been considered at the time of McGee’s initial sentencing, the district court was aware of its authority to depart and declined to do so. Thus, even if the departure issue is not procedurally barred — an issue we need not address— the court’s decision not to depart is unreviewable. See, e.g., United States v.. Fairchild, 189 F.3d 769, 780-81 (8th Cir.1999).

Following oral argument, McGee filed a pro se motion to add a supplemental issue on appeal — that he is entitled to a new trial on the drug conspiracy charge because trial of that charge was prejudiced by its misjoinder with the vacated firearms charges. That contention is untimely. It is also without merit.

The judgment of the district court is affirmed.

1

. The HONORABLE CHARLES A. SHAW, United States District Judge for the Eastern District of Missouri.