USA v. Hannes

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
GARRETT HANNES,
Defendant.
8:24-CR-61
ORDER
This matter is before the Court on defendant Garrett Hannes’s three pro se motions. In Filing
110, filed on November 5, 2025, the defendant brings two motions: a Motion to Expand Record to
Include New Evidence, Filing 110 at 1–3, and a Motion to Vacate Sentence Pursuant to 28 U.S.C.
§ 2255 and for Ineffective Assistance of Counsel, Filing 110 at 4–8. The defendant explains that his
Motion to Expand Record is “brought in conjunction with [his] previously filed Motion for
Ineffective Assistance of Counsel[ ] and Motion to Vacate Sentence.” Filing 110 at 1 (emphasis in
the original). Despite the defendant’s reference to two “previously filed” motions, Filing 110 is the
first document that the defendant has filed. See generally docket 8:24cr61. Thus, the Court construes
the single Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 and for Ineffective Assistance
of Counsel contained within Filing 110 to be the “previously filed” motions referenced in the Motion
to Expand Record. See United States v. Sellner, 773 F.3d 927, 932 (8th Cir. 2014) (“A document
filed pro se is to be liberally construed.” (internal quotation marks and citations omitted)). On
November 10, 2025, the defendant filed another Motion to Vacate Conviction and Sentence Under
28 U.S.C. § 2255 on Grounds that the Statute of Conviction is Unconstitutional. Filing 109. In light
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of all this, the Court presently considers two motions under 28 U.S.C. § 2255 and one motion to
expand the record in relation to a § 2255 motion. The Court has conducted an initial review of those
motions pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. For the reasons
below, the defendant’s motions are dismissed as premature.
I. BACKGROUND
In April 2024, the defendant pleaded guilty to failing to register as a sex offender. Filing 20
(Text Minute Entry); Filing 28. At the defendant’s sentencing hearing on October 2, 2024, the Court
accepted the parties’ Rule 11(c)(1)(C) plea agreement, which provided that the defendant would be
sentenced to a term of 10 months of incarceration—well below the defendant’s guideline custody
range of 15 to 21 months. Filing 55 (Text Minute Entry); Filing 26 (Plea Agreement); Filing 57 at
1. The Court was very hesitant to accept the binding Rule 11(c)(1)(c) plea agreement given the
Court’s consideration of the 18 U.S.C. § 3553(a) factors and given that the Court had received
several negative communications from members of the public expressing concern regarding the
defendant’s character and conduct. The Court addressed these communications at the sentencing
hearing and admitted into evidence both those communications and communications submitted on
the defendant’s behalf. Although the Court had great concerns with the plea agreement that the
parties submitted to the Court, the Court decided to accept the plea agreement given the
circumstances and after consideration of the victims involved. Consistent with that binding plea
agreement, the Court sentenced the defendant to 10 months of incarceration to be followed by a 5-
year term of supervised release. Filing 60 (Amended Judgment).
The defendant began his term of supervised release on January 3, 2025. Filing 93 at 1. By
September 19, 2025, a Fifth Amended Petition for Warrant or Summons for Offender Under
Supervision (Fifth Amended Petition) had been filed against the defendant, alleging ten violations
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of his term of supervision. Filing 93. On October 9, 2025, the defendant appeared before the Court
for a hearing on the Fifth Amended Petition. Filing 95 (Text Minute Entry). At that hearing, the
defendant admitted to Allegations 1 and 8 in the Fifth Amended Petition. Filing 95; Filing 97
(Judgment). Allegations 1 and 8 were both Grade C violations of the defendant’s term of
supervision. Filing 92 at 1–2; U.S.S.G. § 7B1.1. Allegation 1 provided that the defendant had
violated Mandatory Condition #3 of his term of supervision, which required him to refrain from any
unlawful use of a controlled substance and to submit to one drug test within 15 days of being placed
on probation and at least two periodic drug tests thereafter. Filing 93 at 2. The defendant admitted
that he failed to report for three scheduled drug tests. Filing 93 at 2. Allegation 8 provided that the
defendant had violated Mandatory Condition #1, which required that he not commit another federal,
state, or local crime. Filing 93 at 4. By admitting to Allegation 8, the defendant admitted that he
eluded state law enforcement by leading officers on a chase from Douglas County, Nebraska, to
Washington County, Nebraska, after the officers attempted to execute a warrant. Filing 93 at 4. The
Court granted the Government’s motion to dismiss the remaining allegations in the Fifth Amended
Petition. Filing 95; Filing 97 at 1.
As set out in the Fourth Amended Violation Provisions and Recommendation, the
defendant’s guideline custody range for a Grade C violation was 6 to 12 months. Filing 92 at 1–2.
However, the statutory maximum prison term based on the defendant’s underlying conviction for a
Class C Felony was 24 months. Filing 92 at 1; see also 18 U.S.C. § 3583(e)(3). After revoking the
defendant’s term of supervised release, the Court sentenced the defendant to 24 months of
incarceration to be followed by 60 months of supervised release. Filing 97. The defendant timely
filed a Notice of Appeal. Filing 99. The defendant’s appeal is currently pending before the Eighth
Circuit Court of Appeals.
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The Federal Public Defender for the District of Nebraska was appointed to represent the
defendant, Filing 7, and attorneys from that office represented the defendant at his sentencing and
at his supervised release violation hearing. Filing 55; Filing 95. The Eighth Circuit ordered the
Federal Public Defender for the District of Nebraska to “represent (or to continue to represent)” the
defendant on his appeal. Filing 104. However, defense attorney Michael J. Hansen has since been
permitted to withdraw as counsel, and the defendant is proceeding pro se on his appeal. See Eighth
Circuit Court of Appeals docket number 25-3060.
II. ANALYSIS
The Eighth Circuit has held that a § 2255 motion is properly dismissed as premature when
the motion was filed while a direct appeal was pending. United States v. Jagim, 978 F.2d 1032, 1042
(8th Cir. 1992) (“Because [the appellant] filed this [pro se 28 U.S.C. § 2255] motion while his direct
appeal was pending before this Court, the District Court properly dismissed the section 2255 motion
as prematurely filed.”); see also Masters v. Eide, 353 F.2d 517, 518 (8th Cir. 1965) (per curiam)
(explaining that “[o]rdinarily resort cannot be had to 28 U.S.C.A. § 2255 or habeas corpus while an
appeal from conviction is pending”)); Blade v. United States, 266 Fed.Appx. 499, 499 (8th Cir.
2008) (unpublished per curiam) (noting that the Eighth Circuit had previously “summarily affirmed
the [district court’s] dismissal” of the appellant’s § 2255 motion filed “[w]hile his direct appeal was
pending” and had only “amended the dismissal to be without prejudice”). Courts in this district and
in other districts in the Eighth Circuit have therefore dismissed without prejudice § 2255 motions
filed during the pendency of a direct appeal. See, e.g., United States v. Wright, No. 8:22CR253,
2025 WL 3034921, at *1 (D. Neb. Oct. 30, 2025) (dismissing the defendant’s § 2255 motion as
premature and without prejudice because the defendant’s appeal was still pending); Curry v. United
States, No. 1:25-cv-00046-MTS, 2025 WL 1067933, at *2 (E.D. Mo. Apr. 9, 2025) (dismissing as
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premature and without prejudice the defendant’s § 2255 “motion to attack his sentence [filed] during
the pendency of the direct appeal of that same sentence”); Ward v. United States, No. 5:24-CV-
05034-RAL, 2024 WL 2941555, at *2 (D.S.D. June 11, 2024) (concluding that even if the court
construed the defendant’s pleading as a § 2255 motion, “it plainly appears from the motion and the
record of the underlying criminal proceeding that the § 2255 motion is premature” because the
defendant’s “direct appeal remains pending”); Jackson v. United States, No. 1:16-cv-223, 4:14-cr-
135, 2016 WL 9022565, at *1 (D.N.D. July 19, 2016) (finding the defendant’s § 2255 motion to be
premature and dismissing it without prejudice “[b]ecause the Defendant has a direct appeal pending
before the Eighth Circuit”).
Here, the defendant’s direct appeal of his sentence is currently pending before the Eighth
Circuit. As a result, the defendant’s two § 2255 motions challenging that sentence are premature.1
It is clear from the defendant’s Motion to Expand the Record that that motion pertains to at least
one of his § 2255 petitions. Filing 110 at 1. Because the § 2255 petitions are premature, the Motion
to Expand Record related to one of those petitions is also premature. All three of the defendant’s
motions are therefore dismissed without prejudice. Subject to the limitations period in 28 U.S.C. §
2255(f), the defendant may file a new § 2255 petition and any motions related to that § 2255 petition
after his judgment of conviction becomes final.
1 Some courts have recognized an exception to the rule that a § 2255 motion should be dismissed while a direct
appeal is pending. Those courts consider whether “extraordinary circumstances” exist to warrant the consideration of
the § 2255 motion. See, e.g., United States v. Cook, 997 F.2d 1312, 1319 (10th Cir. 1993) (“Absent extraordinary
circumstances, the orderly administration of criminal justice precludes a district court from considering a § 2255 motion
while review of the direct appeal is pending.”); United States v. Barger, 178 F.3d 844, 848 (7th Cir. 1999) (“[W]e have
held on more than one occasion that a district court should not consider a § 2255 motion while a direct appeal is pending,
absent extraordinary circumstance.”); Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998) (“[W]e now adopt the
rule espoused by multiple Circuits that in the absence of extraordinary circumstances, a district court is precluded from
considering a § 2255 application for relief during the pendency of the applicant’s direct appeal.”). The Eighth Circuit
does not appear to have adopted this exception. Even if it had, the Court finds that no extraordinary circumstances exist
in this case.
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When, as here, a § 2255 petition is denied on procedural grounds, a petitioner is entitled to
a certificate of appealability if the petitioner “shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable jurists would not find the Court’s
decision debatable. Thus, to the extent a certificate of appealability is necessary, no certificate of
appealability will issue. Accordingly,
IT IS ORDERED:
1. The defendant’s Motion to Expand Record to Include New Evidence and his Motion to
Vacate Sentence Pursuant to 28 U.S.C. § 2255 and for Ineffective Assistance of Counsel, both in
Filing 110, are dismissed without prejudice as premature;
2. The defendant’s Motion to Vacate Conviction and Sentence Under 28 U.S.C. § 2255 on
Grounds that the Statute of Conviction is Unconstitutional, Filing 109, is also dismissed without
prejudice as premature; and
3. No certificate of appealability shall issue.
Dated this 26th day of November, 2025.
BY THE COURT:
_________________________
Brian C. Buescher
United States District Judge
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