United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
the Court is Marquis Mitchell's motion to vacate, set
aside, or correct a sentence and incorporated request for
appointment of counsel. For the following reasons, the motion
December 8, 2010, Marquis Mitchell pleaded guilty to a
four-count indictment, charging violations of the federal
Controlled Substances Act. The government also filed a bill
of information to establish one prior felony drug conviction
under 21 U.S.C. § 851(a). In the plea agreement,
Mitchell waived the right to contest his conviction and
sentence in a post-conviction proceeding, but he retained a
right to raise a claim of ineffective assistance of counsel
under limited circumstances.
September 21, 2011, the Court accepted the plea agreement and
sentenced Mitchell to a term of imprisonment of 262 months,
which was the low end of the advisory sentencing guidelines
range (of 262 to 327 months). Mitchell's advisory
guidelines range was informed by his status of “career
offender, ” by virtue of the application of the career
offender guideline enhancement contained in the United States
Sentencing Guidelines, § 4B1.1(a); the probation office
recommended that the Court apply this career offender
advisory enhancement because Mitchell's criminal history
included two or more convictions for felony drug offenses.
Mitchell did not appeal. Invoking a recent U.S. Supreme Court
case, Mitchell now challenges his conviction and sentence,
arguing that § 851 is unconstitutionally vague.
petitioner may file a habeas corpus petition pursuant to 28
U.S.C. § 2255, claiming a right to release from custody
on the ground that a sentence ordered by a federal court
"was imposed in violation of the Constitution or the
laws of the United States." 28 U.S.C. §
2255. “Relief under 28 U.S.C. § 2255
is reserved for transgressions of constitutional rights and
for a narrow range of injuries that could not have been
raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice.” United States v.
Gaudet, 81 F.3d 585, 589 (5th Cir. 1996)(citations and
internal quotation marks omitted). 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).
Court "may entertain and determine such motion without
requiring the production of the prisoner at the
hearing." 28 U.S.C. § 2255. Having considered the
record, the motion, and the government's response, the
Court finds that the record is adequate to address the
petitioner's claims and to dispose of them as a matter of
law. Accordingly, no evidentiary hearing is necessary.
See United States v. Walker, 68 F.3d 931, 934 (5th
Cir. 1995)(“if on th[e] record we can conclude as a
matter of law that [the petitioner] cannot establish one or
both of the elements necessary to establish his
constitutional claim, then an evidentiary hearing is not
necessary....”). For the same reasons the Court finds
that an evidentiary hearing is not warranted, it likewise
finds that Mitchell's request for appointment of counsel
must be denied.
habeas petitioner has the burden of establishing his claims
by a preponderance of the evidence. Wright v. United
States, 624 F.2d 557, 558 (5th Cir. 1980)(citations
omitted). If the Court finds that the petitioner 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.
one claim is presented by Mitchell's habeas petition: he
argues that the Supreme Court ruling announced in Johnson
v. United States, 135 S.Ct. 2551 (2015) renders
unconstitutional the residual clause contained in 21 U.S.C.
§ 851, entitling him to post conviction relief. The
government counters that Johnson is limited to the
Armed Career Offender Act's residual clause only; it does
not extend to 21 U.S.C. § 851. The government contends
that Mitchell's claim fails for additional reasons: he
waived the right to contest his conviction and sentence in
his plea agreement; his claim is procedurally barred because
he failed to file a direct appeal (and therefore failed to
argue on appeal that the residual clause in § 851 was
unconstitutionally vague); and his claim is meritless because
§ 851 does not contain a residual clause that was
affected by Johnson. The Court agrees; even if
Mitchell had not waived his right to challenge his sentence
(which he has), his claim fails as a matter of law.
plea agreement entered into with the government, and approved
by the Court, Mitchell waived his right to collaterally
attack his sentence under 28 U.S.C. ...