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United States v. Mitchell

United States District Court, E.D. Louisiana

April 25, 2018

UNITED STATES OF AMERICA
v.
MARQUIS MITCHELL

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before 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 is DENIED.

         Background

         On 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.

         On 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.

         I.

         A 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.[1] “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).

         The 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.[2]

         A 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.

         II.

         Only 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.[3] 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.

         A.

         In the 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. ...


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