United States District Court, E.D. Louisiana
ORDER AND REASONS
this Court is Petitioner Donald Jones, Jr.'s
“Motion to Vacate, Set Aside or Correct Sentence
Pursuant to 28 U.S.C. § 2255.” Rec. Doc. 192.
Petitioner requests vacating his sentence as to Counts 1 and
2 of the indictment and remand for resentencing, or in the
alternative grant an evidentiary hearing. Id. at 26.
The government has filed its “Memorandum in Opposition
to Defendant's Petition for Relief Pursuant to Title 28
U.S.C. § 2255.” Rec. Doc. 194. For the reasons
IS ORDERED that the request for an evidentiary
hearing is DENIED as unnecessary due to completeness
of the record;
IS FURTHER ORDERED that Petitioner's motion to
vacate the sentence is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
January 7, 2015, this Court sentenced Petitioner to one
hundred eighty months imprisonment after he pled guilty to
Counts 1, 5, and 7 of his indictment, namely: one count of
violating 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(A) for conspiracy to distribute and possess with
intent to distribute five kilograms or more of cocaine
hydrochloride; one count of violating 21 U.S.C. §
841(a)(1) and 841(b)(1)(B) for possession with intent to
distribute five hundred grams or more of cocaine
hydrochloride, a quantity of cocaine base, and one hundred
grams or more of heroin; and one count of violating 18 U.S.C.
§ 924(c)(1)(A)(i) for possession of firearms in
furtherance of a drug trafficking crime. Rec. Doc. 143.
Petitioner was sentenced to one hundred twenty months
imprisonment as to Count 1 of his guilty plea, seventy-eight
months imprisonment as to Count 5, and sixty months
imprisonment as to Count 7. Id. at 3. This Court
ordered Petitioner's sentences to run consecutively with
credit for time served. Id.
January 20, 2015, Petitioner appealed his sentence for the
conspiracy charge, Count 1, alleging that the district court
erred by applying the mandatory minimum sentence of one
hundred twenty months imprisonment to that charge. Rec. Doc.
144. The United States Court of Appeals for the Fifth Circuit
affirmed Petitioner's sentence on October 5, 2015,
finding that the mandatory minimum for Petitioner's
conspiracy charge was correctly applied since Petitioner
should be held responsible for the quantity of drugs handled
by the conspiracy as a whole. Rec. Doc. 185.
January 18, 2017 Petitioner filed the instant motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. Rec. Doc. 192. He asserts two grounds for
relief. First, he contends that due to ineffective assistance
of counsel his guilty plea as to Count 1 was involuntary and
should be set aside. Id. at 15. Second, he alleges
that the Court illegally sentenced him to Count 2 of the
indictment, to which he did not plead guilty, and thus his
sentence as to Counts 1 and 2 amounts to a miscarriage of
justice. Id. at 21.
support of his first claim that his guilty plea was
involuntary, Petitioner alleges that his counsel failed to
adequately examine the record and advise Petitioner that the
combined quantity of cocaine hydrochloride seized from an SUV
and Petitioner's home, along with the amount that
Petitioner sold to an informant, did not add up to five
kilograms, the minimum volume required by his Count 1
conspiracy charge. Id. at 18. Because Petitioner
relied on his attorney's advice in pleading guilty to
that charge, Petitioner asserts that his guilty plea was
involuntary. Id. In support of his second claim that
he was illegally sentenced to Count 2 rather than Count 5 of
his indictment, Petitioner cites a misstatement by the Court
during his sentencing proceedings in which the Court referred
to Count 2 rather than Count 5. Id. at 23.
Petitioner asserts that because the Court sentenced him to
Count 2 rather than Count 5, his sentence is a miscarriage of
justice and thus his sentences for Counts 1 and 2 should be
vacated and remanded for resentencing. Id. at 26.
opposition, the Government argues that Petitioner is not
entitled to relief pursuant to § 2255 because (1) his
counsel was not ineffective and (2) Petitioner is barred from
raising his claim that he was sentenced to Count 2 because he
did not raise the claim on direct appeal. Rec. Doc. 194 at
1-2. The Government asserts that Petitioner's counsel was
effective because the drug quantity seized from the SUV
referenced in Petitioner's Presentence Report contained
an error in decimal placement and thus Counsel's advice
on the quantity seized was correct. Id. at 5. The
amount of cocaine seized from the SUV amounted to a net
weight of 4, 923 grams rather than the erroneous 492.3 grams
reflected in the Presentence Report. Id. The
Government also contends that even if Petitioner could prove
that his counsel's failure to notice the mistake amounted
to ineffective assistance of counsel, Petitioner cannot prove
that he was prejudiced by that failure because a conspiracy
charge does not require that Petitioner be held responsible
only for the drugs in his possession. Id. at 5-6.
support of its second objection that Petitioner cannot raise
a new claim under a § 2255 motion, the Government
contends that Petitioner cannot demonstrate both “cause
and prejudice” as required for claims of error not
raised on direct appeal. Id. at 6-7. The Government
asserts that Petitioner cannot show cause excusing his
procedural default because Petitioner's counsel did not
commit a procedural default by failing to object to the
Court's singular misstatement. Id. Because the
Court referred to the correct count during the rest of
Petitioner's sentencing, the plea agreement referred to
the correct charges, and the correct charges were discussed
during Petitioner's rearraignment, Petitioner's
counsel did not err when he failed to subsequently raise the
issue. Id. at 7-8. Nor can Petitioner show prejudice
from the misstatement because he received a sentence for
Count 5, not Count 2. Id. at 8.