United States District Court, E.D. Louisiana
ORDER & REASONS
ELDON E. FALLON, District Judge.
Before the Court is Defendant Cornelius Lazard's motion to vacate, correct, or set aside his sentence under 28 U.S.C. § 2255. (Rec. Doc. 42, 43). The Court has reviewed the memoranda and applicable law, and it now issues this order.
This case arises out of the distribution of cocaine base, commonly known as "crack." On January 9, 2014, Mr. Lazard pled guilty to counts one and three of a three-count indictment. Specifically, Mr. Lazard pled guilty to count one, knowingly and intentionally possessing with the intent to distribute 28 grams or more of cocaine base; and count three, knowingly possessing a firearm as a convicted felon. Mr. Lazard entered into a plea agreement with the government, in which he waived, among other things, his right to appeal and collaterally attack his sentence under 28 U.S.C. § 2255, with limited exceptions. On April 9, 2014, the Court sentenced Mr. Lazard to 130 months imprisonment as to count one, and 120 months as to count three, to be served concurrently, for a total term of 130 months imprisonment. The Court further ordered that Mr. Lazard's federal sentence was to run concurrent with Mr. Lazard's state sentences he was serving. Mr. Lazard never filed a notice of appeal, and on March 9, 2015 contemporaneously filed a motion for proper credit for time served under § 2255 and a motion for habeas corpus.
II. PRESENT MOTION
Mr. Lazard now moves for relief pursuant to § 2255. (Rec. Doc. 42, 43). First, Mr. Lazard argues that at sentencing this Court did not give him credit for nine months served in state/federal custody. Second, Mr. Lazard argues that his sentence should be reduced under a 5point reduction.
The Government opposes Mr. Lazard's petition. (Rec. Doc. 45).
III. LAW & ANALYSIS
Habeas relief is appropriate under § 2255 when a federal prisoner asserts that his sentence "was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Ordinarily, a § 2255 motion "can be denied without a hearing only if the motion, files, and records of the case conclusively show that the prisoner is entitled to no relief." United States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992). Generally, a defendant is barred from raising an issue for the first time on collateral appeal if he had an opportunity to raise the issue on direct appeal and failed to do so, unless the petitioner can show "both cause' for failing to raise the issue on direct appeal and actual prejudice' flowing from the errors alleged." United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996) (citing United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991)); see also United States v. Frady, 456 U.S. 152, 167-168 (1982).
Ordinarily, a § 2255 motion must be brought within one year of (1) the date the judgment becomes final, (2) the date an unconstitutional impediment is removed, (3) the date the United States Supreme Court recognized a rule as retroactively applicable on collateral review, or (4) the date new evidence could have been discovered. § 28 U.S.C. § 2255(f). This limitations period is controlling unless a defendant has claimed actual innocence. If a defendant does not seek a petition for certiorari with the United States Supreme Court, the judgment of the Fifth Circuit becomes final after the 90-day period for seeking such a petition has elapsed. United States v. Gamble, 208 F.3d 536, 537 (5th Cir. 2000).
B. Mr. Lazard waived his right to bring the instant § 2255 petition
The Court first notes that Mr. Lazard's § 2255 petition is barred under the circumstances here. In his plea agreement, Mr. Lazard generally waived his right to collaterally attack his sentence with a § 2255 petition. Although the waiver excepts a post-conviction challenge based on ineffective assistance of counsel or a sentence in excess of the statutory maximum, ...