United States District Court, E.D. Louisiana
ORDER AND REASONS
E. FALLON United States District Judge
before the Court is pro se Defendant's motion to
vacate, set aside, or correct sentence under 28 U.S.C. §
2255, and his motion for appointment of
counsel. Rec. Doc. 68. He bases the request for
relief on Johnson v. United States, 135 S.Ct. 2551
(2015), in which the Supreme Court held that the residual
clause of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e), was unconstitutionally vague. The
Government opposes Defendant's position. Rec. Doc. 77.
Having considered the parties' submissions and applicable
law, the Court now issues this Order and Reasons.
RELEVANT PROCEDURAL HISTORY
November 2004, Jefferson pleaded guilty to a five-count
superseding bill of information charging violations of the
Controlled Substances Act and Gun Control Act, 18 U.S.C.
§§ 922(g), 924(c) and 841. See Rec. Doc.
29. Specifically, Jefferson entered a guilty plea as to being
a felon in possession of a firearm - a Smith & Wesson 9mm
(Count 1); being a felon in possession of a firearm - Bryco
9mm (Count 2); possession of a firearm in furtherance of a
drug trafficking crime (Count 3); distribution of a quantity
of cocaine base (Count 4); and being a felon in possession of
a firearm - Yugoslavian SKS (Count 5). Jefferson pleaded
guilty to a stipulated term of no more than 20 years'
imprisonment pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C). Rec. Doc. 30 at 2-3. Nonetheless, at
Jefferson's March 2006 sentencing, the Court rejected the
agreed-upon sentence but accepted the guilty plea in all
other aspects. See Rec. Doc. 57. Jefferson decided to proceed
with sentencing. See Rec. Doc. 57. The Court
sentenced Jefferson to a term of 248 months'
imprisonment. See Rec. Doc. 58 at 2. Jefferson did
not file a direct appeal.
2016, less than one year after the United States Supreme
Court's decision in Johnson, Jefferson filed the
instant § 2255 motion. See Rec. Doc. 68 at 2.
Jefferson's motion appears timely. See 28 U.S.C.
§ 2255(f)(3); see also Welch v. United States,
136 S.Ct. 1257, 1268 (2016) (stating that
“Johnson announced a substantive rule that has
retroactive effect in cases on collateral review”). In
his motion, Jefferson argues that 18 U.S.C. §§
922(g) and 924(c) are unconstitutionally vague after
Johnson. See Rec. Doc. 68 at 1. Moreover,
Jefferson argues that “it was not reasonable for [him]
to have foreseen, at the time the [plea] agreement was made,
that the Supreme Court would later rule applicable
definitions of the crime [he] pleaded guilty to
unconstitutional.” Rec. Doc. 78. He further requests
assistance of counsel for the instant proceeding.
response, the Government argues (1) Defendant waived his
right to contest his conviction and sentence in this type of
post-conviction proceeding; (2) Defendant's claims are
procedurally barred; and (3) even if Defendant's claims
were not waived or procedurally barred, Defendant's
Johnson claims fails on the merits. See
Rec. Doc. 77.
instant opinion addresses Defendant's motion and the
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).
Defendant's Claims Are Waived.
Government argues the Defendant's § 2255 motion
should be dismissed because he waived his right to
collaterally challenge his conviction and sentence. A
defendant's waiver of his statutory right to collaterally
challenge his conviction with a motion to vacate, set aside,
or correct sentence under 28 U.S.C. § 2255, like a
waiver by a defendant of his right to appeal, is generally
enforceable if the waiver is both knowing and voluntary.
See United ...