United States District Court, E.D. Louisiana
ORDER AND REASONS
E. FALLON United States District Judge.
before the Court is pro se Defendant Shannon
Mitchell's motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. Rec. Doc. 53. Mitchell
bases his request for relief on Johnson v. United
States, 135 S.Ct. 2551 (2015), and Mathis v. United
States, 136 S.Ct. 2243 (2016). Mitchell also claims
ineffective assistance of counsel at sentencing, and asks for
relief under Federal Rule of Civil Procedure 60(b). The
Government opposes Defendant's motion. Rec. Doc. 59.
Having considered the parties' submissions and applicable
law, the Court now issues this Order and Reasons.
September 2007, Mitchell pleaded guilty to a two-count
indictment charging violations of the Controlled Substances
Act, 21 U.S.C. § 841(a)(1) & 851(a) (“Count
1”), and the Gun Control Act, 18 U.S.C. §
922(g)(1) (“Count 2”). See Rec. Doc. 36.
time of sentencing, because Mitchell had a criminal history
that included two or more convictions for a crime of violence
or felony drug offenses, he qualified for the classification
as a career offender under U.S.S.G. § 4B1.1. The
statutory penalties that Mitchell faced for imprisonment was
a mandatory minimum of twenty years to maximum of life as to
Count 1 of his indictment, and a maximum of ten years as to
Count 2. In March 2008, the Court sentenced Mitchell to 280
months' imprisonment (23 years and four months) for both
counts. Rec. Doc. 49. Mitchell did not file a direct appeal.
in March 2017, Mitchell filed the instant § 2255 motion,
more than one year after the Supreme Court's decision in
Johnson. Rec. Doc. 53. Mitchell filed supplements to
his § 2255 motion in June 2017 and August 2017.
See Rec. Docs. 54 & 58. In his motion and
subsequent filings, Mitchell argues (1) that the application
of the career offender guideline enhancement, U.S.S.G.
§§ 4B1.1 and 4B1.2, was improper in light of
Johnson and Mathis, (2) that his attorney
was ineffective in failing to object to the application of
the career offender guideline enhancement; and (3) that he is
entitled to relief under Federal Rule of Civil Procedure
60(b). See Rec. Doc. 54. The Court will address each
issue in turn.
28 U.S.C. § 2255, a federal prisoner may move the court
that imposed his sentence to vacate, set aside or correct the
sentence. 28 U.S.C. § 2255(a). Section 2255 identifies
only four bases on which the motion may be made: (1) the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) the court was without jurisdiction
to impose the sentence; (3) the sentence exceeds the
statutory maximum sentence; or (4) the sentence is
“otherwise subject to collateral attack.”
Id.; see also United States v. Placente, 81
F.3d 555, 558 (5th Cir. 1996). A claim of error that is
neither constitutional nor jurisdictional is not cognizable
in a section 2255 proceeding unless the error constitutes a
“fundamental error” that “renders the
entire proceeding irregular or invalid.” United
States v. Addonizio, 442 U.S. 178, 185 (1979).
petitioner bears the burden of establishing his claims of
error by a preponderance of the evidence. Wright v.
Bondurant, 689 F.2d 1246, 1251 (5th Cir. 1982). If the
Court finds that the prisoner is entitled to relief, it
“shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b).
Mitchell's Claims Are Not Timely.
threshold matter, the Court must determine whether Defendant
timely filed his petition under 28 U.S.C. § 2255.
requires that all § 2255 petitions be filed within one
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from ...