DeMarrias v. United States of America

/
FILED
UNITED STATES DISTRICT COURT MAR 2 W?
DISTRICT OF SOUTH DAKOTA .
NORTHERN DIVISION
THOMAS DION DEMARRIAS, 1:22-CV-1003-CBK
Petitioner,
MEMORANDUM AND ORDER
vs.
UNITED STATES,
Respondent.
Petitioner Thomas DeMarrias ("petitioner") motions this Court to vacate and set
aside his two federal convictions for which he knowingly and voluntarily pleaded guilty
pursuant to 28 U.S.C. 2255. Doc. 1. Petitioner, who is currently confined at the United
States Penitentiary in Marion, Illinois, pleaded guilty to Abusive Sexual Contact(18
U.S.C. §§ 1153, 2244(a)(1), 2246(3)) and Felony Child Abuse(18 U.S.C. § 1153, and
SDCL §§ 26-8A-2, 26-10-1)and was sentenced on November 4, 2019,to 120 months
custody for each sentence, with the two counts to run consecutively. See 1:18-CR-
10019-CBK-l ("Original Proceeding"). The United States Court of Appeals for the
Eighth Circuit affirmed the sentence on November 4, 2020. See United States v.
DeMarrias. 833 Fed. Appx. 30(8th Cir. 2020){unpublished). The mandate issued on
November 25, 2020. Original Proceeding, doc. 113. 1 have conducted an initial review
ofthe motion pursuant to Rule 4 of the Rules Governing § 2255 Proceedings.
Mr. DeMarrias now contends that his guilty pleas were not in fact knowing and
voluntary because of ineffective assistance of counsel during his trial proceedings.
Additionally, petitioner couches a brief argument under the banner of"actual innocence,"
yet not explaining whether he means to use actual innocence as a gateway to plead
procedurally defaulted claims that would otherwise be blocked before this Court under
the Antiterrorism and Effective Death Penalty Act of 1996("AEDPA"), or rather a
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 1 of 13 PageID #: <pageID>

freestanding innocence claim under Herrera v. Collins, 506 U.S. 390(1993). Both sets of
arguments are addressed.
1. BACKGROUND
The underlying facts behind petitioner's guilty pleas stretch to the outer limits of
mankind's cruelty. On appeal, the Eighth Circuit referred to these circumstances as
"horrific." DeMarrias, 833 Fed. Appx. at 31. For approximately four years, DeMarrias
"psychologically, sexually, and physically abused his two minor stepdaughters." Id. To
somehow make matters even worse, these two girls were only four and eight-years-old
when the abuse began.' This abuse was not one-off events; rather, it would take place
"on average four times a day five days a week." Id. Making a mockery of contract law,
DeMarrias forced his three young stepchildren to sign "contracts" which would "govern"
what would happen if they got into trouble. Id. One example included "requir[ing] a
child who got into trouble to pick one of their siblings to receive a beating. "Ifthe child
was unwilling or emotionally unable to pick a sibling to be beaten -(which was usually
the case)-DeMarrias would beat all three." Id. Petitioner also would force the children
to brawl against each other, which one child opined were attempts to try and drive
wedges between the children.
This matter was raised to law enforcement back in January 2012 when the victims'
mother, Ms. Chantel Brant, caught DeMarrias laying on her daughter M.M.B's bed.
Petitioner was masturbating while holding M.M.B's underwear next to his mouth and
nose. DeMarrias was promptly kicked out of the home and Brant called the police. After
fleeing their home in Rehab Village on the Lake Traverse Indian Reservation in South
Dakota and eventually residing in Mitchell, South Dakota, M.M.B. began unraveling the
horrors she endured. Not only was she physically abused, but also molested throughout
her childhood from individuals besides DeMarrias, such as her grandfather's brother who
began sexually abusing the young girl when she was only in kindergarten. Other
individuals included her grandfather, Mr. Roland Brant, as well as the defendant.
'This is to put aside the physical abuse inflicted on petitioner's wife and stepson, which is not relevant to this
matter.
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 2 of 13 PageID #: <pageID>

To take just one example of how DeMarrias treated the young girl was
forced to watch pornography with him, stating that this is what happens to nasty girls
who wear short skirts. When it came to their physical abuse, M.M.B. and her sister
M.J.D. would have to "choose" if they would want the beating to be from a hanger or a
belt covered in metal studs. No place was safe in the household. Not only would
DeMarrias sexually abuse M.M.B.(and be upset if she showed clear signs of pain) by
inserting his fingers into her vagina when she was alone, but also watch her shower
through a hole in the bathroom wall. Not content with being the only cause of sexual
trauma, DeMarrias even forced M.M.B. and M.J.D. to touch each other sexually while
taking a shower, with threats of beatings if they did not comply. And, venturing far
beyond the civilized mind, DeMarrias even forced M.M.B.- at 10 or 11-years-old - to
put a nail into her own anus.
M.M.B. was not alone in the abuse. In addition to the constant beatings with the
hangar and belt, M.J.D. recalls how the petitioner would order her to lay on the bed but
not fall asleep. Eventually, though, once M.J.D. did slip into unconsciousness she would
be awoken by the enraged DeMarrias punishing her with further beatings, from which he
took pleasure inflicting. To call these actions depraved would be a gross understatement.
Tragically, this is not even the end of this house of horrors.
M.J.D. reported how petitioner would place tacks around her bed while she was
sleeping. Why? So she would step on them when getting out of bed. Once M.J.D. was
given a jelly donut. She decided that she did not like the filling. So, she squeezed the
jelly filling into a soiled diaper in their garbage and thought that would be the end of this
particular story. But she lived with DeMarrias, a man seemingly bent on causing as
much pain and horror as he could. Taken it as a personal afront, the petitioner forced
M.J.D. to retrieve the diaper and eat the jelly out of it, one ofthe many acts in which he
delighted.
These children are survivors. They endured day after agonizing day confined to a
"prison" with a cruel and inhumane warden, a man committed to causing unspeakable
pain. This was from physical torment to sexual trauma to forcing children to fight and
3
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 3 of 13 PageID #: <pageID>

molest each other; these young girls endured more than any person should in a lifetime,
let alone as children. This Court has presided over the darkest acts man can cause against
another, but the actions underlying DeMarrias' two guilty pleas remain among the worst.
"The right to the effective assistance of counsel at trial is a bedrock principle in
our justice system." Martinez v. Rvan,566 U.S. 1, 12(2012). All defendants are owed
meaningful representation, and as this Memorandum and Order explains, Mr. DeMarrias
was awarded constitutionally sound trial counsel when he pleaded guilty to these two
counts.
II. DISCUSSION
A. Ineffective Assistance of Counsel
1. Standard ofKemw
To support a claim of ineffective assistance of counsel, a two-prong test must be
met. Mr. DeMarrias must show that his trial counsel's performance '"was deficient and
that [he] suffered prejudice as a result.'" O'Neil v. United States, 966 F.3d 764, 770(8th
Cir. 2020)(alteration in original){quoting Anderson v. United States, 762 F.3d 787, 792
(8th Cir. 2014). See Strickland v. Washington. 466 U.S. 668. 687-96(1984V The
petitioner must prove prejudice by showing "'that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding would have been
different.'" Donelson v. Steele. 16 F.4th 559, 570 (8th Cir. 2021)(quotins Strickland.
466 U.S. at 694). In the context of a guilty plea, petitioner must show that "'but for
counsel's errors,[DeMarrias] would not have pleaded guilty and would have insisted on
going to trial.'" United States v. Sisk. 999 F.3d 631,635 (8th Cir. 2021)(quotins United
States V. Cruz. 643 F.3d 639,642(8th Cir. 2011)). The heavy burden of establishing
ineffective assistance of counsel is on the petitioner. Langford v. United States. 993 F.3d
633, 637 (8th Cir. 2021); Golinveaux v. United States. 915 F.3d 564, 567(8th Cir. 2019).
"The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged
with the benefit of hindsight." Yarborough v. Gentrv. 540 U.S. 1,6(2003).
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 4 of 13 PageID #: <pageID>

2. Trial Counsel was Not Constitutionally Defective
Petitioner contends he would not have pleaded guilty if he had effective counsel.
Specifically, DeMarrias argues constitutionally sound trial counsel must have sought
expert testimony concerning purportedly unfounded and false abuse allegations raised
against him, and with such assistance he would not have pleaded guilty. Mr. DeMarrias
is now contending, for the first time, that his plea could not have been given knowingly
and voluntarily because trial counsel supposedly "pressured him into taking the plea deal
even though [petitioner] continued to assert his innocence." Memorandum in Support
OF Motion Under 28 U.S.C. 2255 to Vacate and Set Aside Conviction, doc. 3 at 5.
Because any concerns of whether DeMarrias' guilty plea was knowing and voluntary
were assuaged in his prior exchanges with the Court, such allegations hold no merit.
Petitioner's waiver of his Constitutional right to insist the charges against him be
tried to a jury can only be waived by a guilty plea if it was done "knowingly and
voluntarily." United States v. Gradv. 931 F.3d 727, 729(8th Cir. 2019)(quotim United
States V. Andis. 333 F.3d 886, 890 (8th Cir. 2003){en banc)). The United States
Supreme Court has set forth the standard as to voluntariness:
A plea of guilty entered by one fully aware ofthe direct consequences,
including the actual value of any commitments made to him by the court,
prosecutor, or his own counsel, must stand unless induced by threats (or
promises to discontinue improper harassment), misrepresentation
(including unfulfilled or unfulfillable promises), or perhaps by promises
that are by their nature improper as having no proper relationship to the
prosecutor's business (e.g. bribes).
Bradv v. United States. 397 U.S. 742, 755 (internal quotation omitted).
This Court takes great care in ensuring all guilty pleas entered are knowing and
voluntary. Such care was taken in this matter. On July 24, 2019, petitioner DeMarrias
signed a plea agreement, agreeing to plead guilty to counts one and two of the
Superseding Information, namely Abusive Sexual Contact and Felony Child Abuse and
Neglect. Plea Agreement, Original Proceeding, doc. 73. On the same day DeMarrias
signed a factual basis statement agreeing that the alleged facts were true. S^ Factual
Basis Statement, Original Proceeding, doc. 74. In the factual basis statement petitioner
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 5 of 13 PageID #: <pageID>

admitted to the underlying conduct substantiating the first count ofthe superseding
information: knowingly engaging in and attempting to engage in sexual contact with
when the child was between eight and 12 years-old. He went on to admit to
using his "fingers and hands to commit the sexual contact against M.M.B." Id at 2. For
count two, DeMarrias agreed to abusing, torturing, and cruelly punishing M.J.D. with a
dangerous weapon when she was between the ages ofseven and eight years-old.
But his agreement to the plea agreement and factual basis statement is not all
DeMarrias provided to this Court as indicia of his actual guilt for the heinous acts taken
against these defenseless children. At the change of plea hearing on July 29, 2019,
petitioner testified, under oath, that the factual basis statement was true. Original
Proceeding, doc. 82. The Court told DeMarrias at the change of plea hearing that at a
later date this matter would reconvene to conduct a sentencing hearing where evidence
would only need be proven by a preponderance of the evidence, and that this Court would
decide what the facts are. Again, petitioner testified that he understood. And to ensure
this plea was of his own accord, this Court asked DeMarrias if anybody had promised
him what his ultimate sentence would be if he was to plead guilty to the two counts.
Petitioner testified that nobody had.
Petitioner's representations during the plea hearing '"carry a strong presumption
of verity and pose a formidable barrier in any subsequent collateral proceedings.'"
Thompson v. United States. 872 F.3d 560, 566 (8th Cir. 2017){quoting Nguven v. United
States, 114 F.3d 699, 703 (8th Cir. 1997)). This Court advised DeMarrias of the
consequences from pleading guilty, and carefully ensured that his guilty pleas were
knowing and voluntary. His subsequent collateral attack does not venture close to
whittling the strong presumption from which his prior guilty pleas were taken while
under oath.
As the United States Supreme Court observed in Bradv v. United States, 397 U.S.
742, 756-57 (1970):
Often the decision to plead guilty is heavily influenced by the defendant's
appraisal of the prosecution's case against him and by the apparent
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 6 of 13 PageID #: <pageID>

likelihood of securing leniency should a guilty plea be offered and accepted
... The rule that a plea must be intelligently made to be valid does not
require that a plea be vulnerable to later attack if the defendant did not
correctly assess every relevant factor entering into his decision. A
defendant is not entitled to withdraw his plea merely because he discovers
long after the plea has been accepted that his calculus misapprehended the
quality ofthe State's case or the likely penalties attached to alternative
courses of action.
Petitioner faults trial counsel for not pursuing expert witnesses within the field of
unfounded and false abuse allegations. DeMarrias now contends that if he knew ofsuch
possible expert witness testimony,"he would have confidence to proceed with his
innocence and proceed to trial." MEMORANDUM IN SUPPORT OF MOTION UNDER 28
U.S.C. 2255 TO Vacate and Set Aside Conviction, doc. 3 at 5. Petitioner's guilty
plea waived this claim. DeMarrias testified twice under oath at the change of plea
hearing that the factual basis statement was true. The factual basis statement set forth
that petitioner engaged in sexual acts with M.M.B. as well as using a dangerous weapon
to abuse, torture, and cruelly punish M.J.D. See Factual Basis Statement, Original
Proceeding, doc. 74. This Court twice asked DeMarrias if the factual basis statement was
true. Under oath, he testified that it was.
Further, DeMarrias now states that the factual basis statement was supposed to be
altered to exclude any actual contact with the victims, which belies belief. But his time to
edit the statement has expired years prior when he testified, under oath, that the veracity
of the allegations set forth were true. Regardless, it challenges common sense that
DeMarrias can plead guilty to sexual contact of M.M.B. that involved ''intentional
touching" and of abuse, torture, and cruelly punishing M.J.D. without physical contact.
Id-
Petitioner now asserts that he was "assured" by trial counsel that he would reeeive
a lenient sentence and that it was "agreed upon with the prosecution and the court."
Memorandum in Support of Motion Under 28 U.S.C. 2255 to Vacate and Set
Aside Conviction, doc. 3 at 5. But at his change of plea hearing this Court made clear
that it was not bound by any agreed-upon sentence between the United States and
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 7 of 13 PageID #: <pageID>

petitioner. And at that hearing, the petitioner testified, under oath, that he understood that
this Court was not bound by plea negotiations between the parties or the advisory
guideline range when determining the ultimate sentence. Again, DeMarrias testified he
understood this.
Petitioner's new allegations as to ineffective assistance of counsel in failing to
pursue expert witnesses, that the factual basis statement was not properly altered, and that
he was promised a certain sentencing range do not detract from the finding that his plea
was intelligently entered. Federal Rule of Criminal Procedure 11(b)(2) requires that a
plea be voluntary. This Court determined that, based upon the petitioner's own sworn
testimony, that his plea did not result from force, threats, or promises (other than
promises in the plea agreement). Petitioner's allegations as to ineffective assistance of
counsel in failing to investigate obtaining an expert witness do not affect the
determination as to the voluntariness of his guilty plea. Rule 11(b)(3) requires that there
be a factual basis for the plea. This Court determined that there was a factual basis for
the guilty pleas. Petitioner's allegations as to ineffective assistance of counsel in failing
to pursue such expert witness testimony does not affect the determination that there was a
factual basis for the guilty pleas. Only ineffective assistance of counsel claims which
affect the voluntary and intelligent nature of the plea would be cognizable in a case where
the defendant has entered a guilty plea as done here. Accordingly, petitioner falls far
short of overcoming the '"strong presumption'" owed to his prior sworn testimony before
this Court. Thompson v. United States. 872 F.3d 560, 566(8th Cir. 2017){quoting
Nguven v. United States. 114 F.3d 699, 703 (8th Cir. 1997)).
B. Actual Innocence
1. Procedural Gateway
Petitioner also briefly raises an actual innocence claim shrouded in confusion. He
fails to explain if he is requesting an actual innocence gateway because of a miscarriage
ofjustice to overcome a procedural default under AEDPA for an underlying substantive
claim, or instead is seeking a purported freestanding innocence claim. Either way, he
falls far short.
8
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 8 of 13 PageID #: <pageID>

Questions of actual innocence should have been raised and decided on direct
appeal(which DeMarrias waived under his voluntary and intelligent guilty pleas).
DeMarrias failed to do so. See Silk v. United States. 955 F.3d 681, 683 (8th Cir. 2020)
("There are strict limits, however, on when a guilty plea may be attacked on collateral
review under § 2255. Ordinarily, where a defendant does not challenge his guilty plea on
direct appeal, he may not do so in a collateral attack. 'Habeas review is an extraordinary
remedy and will not be allowed to do service for an appeal.'"){quoting Bouslev v. United
States, 523 U.S. 614, 621 (1998)). The procedural barrier can be overcome under the
"miscarriage ofjustice" exception to AEDPA's hurdles, but only "when petitioners have
produced convincing new evidence of actual innocence." United States v. Wilev, 245
F.3d 750, 752(8th Cir. 2001). This is a narrow exception for only the rarest of matters.
Here, DeMarrias does not bring before the Court actual recantations but mere
rumors of such. DeMarrias states that the two child victims have recanted to his father
"as well as others," without explaining who these purported "others" are. See
Memorandum in Support of Motion Under 28 U.S.C. 2255 to Vacate and Set
Aside Conviction, doc. 3 at 5. Courts view with "suspicion" motions based on alleged
recantation of witnesses. United States v. Rouse. 410 F.3d 1005, 1009 (8th Cir. 2005).
"Recanted testimony that bears on a victim's credibility or directly on the defendant's
guilt will warrant a new trial if it would probably produce an acquittal on retrial." United
States V. Dogskin. 265 F.3d 682,685 (8th Cir. 2001){citing Lewis v. Erickson, 946 F.2d
1361, 1362(8th Cir. 1991)). That is not the case here. This Court finds that any
purported recantation is not credible. See Rouse. 410 F.3d at 1009(noting that this
skepticism towards recantations "'is especially applicable in cases of child sexual abuse
where recantation is a recurring phenomenon,' particularly 'when family members are
involved and the child has feelings of guilt or the family members seek to influence the
child to change her story.'"){quoting United States v. Provost, 969 F.2d 617,621 (8th
Cir. 1992), cert, denied, 506 U.S. 1056(1993)). These threadbare rumors of recantations
do not venture close to meaningful new evidence questioning the countless acts of sexual
touching and abuse that are at the heart of the counts to which petitioner pleaded guilty.
9
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 9 of 13 PageID #: <pageID>

The alleged recantations (lacking notarized statements or other signs they were offered
under penalty of perjury or legal recourse) do not come from the victims themselves but
instead are hearsay upon hearsay. Petitioner has produced no affidavit from the victims
themselves or any meaningful semblance of merit that one or both young girls have
recanted their allegations at the heart ofthis matter for which knowing and voluntary
guilty pleas were accepted. Because no new meaningful evidence has been presented, the
miscarriage ofjustice exception to AEDPA's procedural default has no bearing on this
matter. Next, the Court explains why no freestanding innocence claim can survive as
well.
2. Purported Freestandins Innocence Claim
There is a stark difference between justifying a gateway through AEDPA's
procedural impediments because of purported actual innocence and a freestanding
irmocence claim. Where the miscarriage ofjustice exception allows procedurally barred
issues to be litigated on collateral review, freestanding claims of actual innocence reach
even higher and are the core of the claim itself. The United States Supreme Court tackled
the possible existence of a freestanding innocence claim in Herrera v. Collins, 506 U.S.
390(1993), but the Court has never concluded if such a hypothetical freestanding claim
does in fact exist, and, if so what would be necessary. See Dansbv v. Hobbs, 766 F.3d
809, 816(8th Cir. 2014)("The threshold, if it exists, would require more convincing
proof than the gateway standard that allows for consideration of otherwise defaulted
constitutional claims upon a showing of actual innocence ... Thus, on a freestanding
claim of actual innocence, it is not sufficient that a petitioner shows even that it is more
likely than not that no reasonable juror would have found petitioner guilty beyond a
reasonable doubt.")(internal quotations omitted). If such a claim does exist, the Supreme
Court has cautioned it would be an "extraordinarily high" bar to meet. Herrera. 506 U.S.
at 417. Further, petitioners with far stronger claims than here have failed under review
from the United States Court of Appeals for the Eighth Circuit. See Feather v. United
States. 18 F.4th 982, 986-87(8th Cir. 2021)(rejecting freestanding actual innocence
claim where petitioner brought forward affidavits from four victims reasserting prior
10
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 10 of 13 PageID #: <pageID>

recantations; experts questioning the qualifications, examination techniques, and medical
conclusions of government's trial expert on pediatric assault; and evidence ofjuror bias
for still failing to meet the high burden). It is so high, in fact, that it has never been
reached. At the very least, it is a higher standard than that required of a "gateway"
innocence claim to trump procedural default raised by AEDPA.
Whether freestanding innocence claims under Herrera exist at all, or are merely
an endangered species, is an open question. DeMarrias' hearsay upon hearsay falls far
short of surpassing the gateway innocence claim to litigate defaulted matters, and thus
fails on any freestanding innocence claim.
III. CONCLUSION
I have presided over more than 2,200 criminal cases involving over 2,700
defendants. The faets behind petitioner's two knowing and voluntary guilty pleas in this
matter remain among the worst ofthe worst. These two little girls were subjected to
"horrific" abuse beyond the pale of humanity for years. United States v. DeMarrias. 833
Fed. Appx. 30, 31 (8th Cir. 2020){unpublished). Their home was their prison. No room,
even the bathroom, was safe from the ever-watching eye of DeMarrias, who lived to
shred the humanity from those too defenseless to fight back. M.M.B. and M.J.D. should
be lauded for surviving what no man, woman, or child should experience, let alone at
such a young age. From constant and vicious beatings to molestations to nonsensical
"contracts" requiring children to choose which sibling would be the victim of the next
beating, the petitioner showed blatant disregard for anything but his own desires of
inflicting pain and suffering.
This Court carefully uncovered at petitioner's change of plea hearing that the two
guilty pleas offered were knowing and voluntary. Under oath, DeMarrias agreed twice to
the factual basis statement. Under oath petitioner acknowledged he had freely entered
into the plea agreement, which this Court concluded was done knowingly and voluntarily,
void of promises on what his ultimate sentence would be. DeMarrias' representations at
the plea hearing '"carry a strong presumption of verity and pose a formidable barrier in
any subsequent collateral proceedings.'" Thompson v. United States, 872 F.3d 560, 566
11
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 11 of 13 PageID #: <pageID>

(8th Cir. 2017)(quotins Nguyen v. United States. 114 F.3d 699, 703 (8th Cir. 1997)).
Nothing presented by the petitioner ventures close to disrupting this presumption.
While petitioner may be upset at his trial counsel for not securing a more favorable
sentence, that is not sufficient grounds for an ineffective assistance claim. Thomas
DeMarrias "committed heinous crimes." United States v. Tsamaev, 595 U.S. (2022)
(slip op., at 20). "The Sixth Amendment nonetheless guaranteed him" fair proceedings
and constitutionally sound counsel. Id. '"A defendant is entitled to competent and
effective legal counsel, nothing more.'" United States v. Harlan, 960 F.3d 1089, 1092
(8th Cir. 2020)(auotins United States v. Kellev. 774 F.3d 434, 439(8th Cir. 2014).
Because nothing presented here meaningfully challenges that trial counsel was anything
but competent and effective, and because petitioner's two guilty pleas were offered
knowingly and voluntarily, DeMarrias' motion should be denied and no certificate of
appealability should be granted.
IV. THE COURT WILL NOT HAVE AN EVIDENTIARY HEARING ON
PETITIONER'S CLAIM
The Court will not conduct an evidentiary hearing on petitioner's claims, as "the
motion and the files and records of the case conclusively show that petitioner is entitled
to no relief." 28 U.S.C. 2255(b); see also Jackson v. United States. 956 F.3d 1001, 1006
(8th Cir. 2020)("'No [evidentiary] hearing is required where the claim is inadequate on
its face or if the record affirmatively refutes the factual assertions upon which it is
based.'")(quotins Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010)).
Summary dismissal is therefore appropriate pursuant to Rule 4 of the Rules Governing
Section 2255 Proceedings.
IT IS HEREBY ORDERED that petitioner Thomas DeMarrias' motion to vacate,
set aside, or correct sentence. Doc. 1, is denied.
12
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 12 of 13 PageID #: <pageID>

TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT:
Petitioner pleaded guilty to Abusive Sexual Contact and Felony Child Abuse and
was sentenced to 120 months imprisonment on each count, which were to run
consecutively. His direct appeal following sentencing was denied. Petitioner filed a
motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 contending
that he received ineffective assistance of counsel and that he is actually innocent. I
summarily denied the motion to vacate pursuant to Rule 4 of the Rules Governing
Section 2255 Proceedings for the United States District Courts.
Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue only if the
applicant has made a substantial showing ofthe denial of a constitutional right.
Petitioner did not and has not made a substantial showing ofthe denial of a constitutional
right.
IT IS HEREBY CERTIFIED that there does not exist probable cause of an appealable
issue with respect to the Court's order denying petitioner's § 2255 motion. Any
application for a certificate of appealability is denied. This is no way hampers the
petitioner's ability to request issuance ofthe certificate by a United States Circuit Judge
pursuant to Federal Rule of Appellate Procedure 22.
DATED this of March, 2022.
BY THE COURT:
CHARLES B. KORNMANN
United States District Judge
13
Case 1:22-cv-01003-CBK Document 4 Filed 03/25/22 Page 13 of 13 PageID #: <pageID>