United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is Joseph Jones' 28 U.S.C. § 2255 motion
to vacate, set aside, or correct the sentence. For the
following reasons, the motion is DENIED.
October 12, 2005, officers and detectives with the Hammond
Police Department executed a search warrant at Joseph
Jones' residence. The officers found a Glock 19 9mm
semi-automatic handgun, a plastic bag that contained
approximately 500 grams of cocaine base
(“crack”), and $19, 799 in U.S. currency. Jones
acknowledged that the cocaine, money, and gun found in the
house belonged to him. A review of Jones' criminal
history showed that he previously pled guilty in the 21st
Judicial District Court for the State of Louisiana for
possession of cocaine, in violation of Louisiana Revised
Statute 40:967(C)(2), a felony drug offense.
January 12, 2006, Joseph Jones pled guilty to a three-count
indictment which charged Jones with possession with intent to
distribute fifty grams or more of cocaine base in violation
of Title 21, United States Code, § 841(a)(1) and §
841(b)(1)(A), being a felon in possession of a firearm in
violation of Title 18, United States Code, § 922(g)(1),
and possessing a firearm in furtherance of a drug trafficking
crime in violation of Title 18, United States Code, §
924(c). When Jones signed the plea agreement, he waived the
right to appeal or otherwise contest his sentence. He
reserved the right to appeal any punishment that was imposed
in excess of the statutory maximum.
is currently serving a 120 month sentence. On July 13, 2006,
Jones was sentenced to a total of 211 months. The sentence
was subsequently reduced three times to the current 120 month
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 § 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).
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.
plea agreement signed by Jones and accepted by the Court,
Jones waived his right to contest his sentence under 28
U.S.C. § 2255.
defendant may waive his right to appeal as part of a plea
agreement, as long as the waiver is informed and voluntary.
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.
1994). For a waiver to be informed and voluntary, the
defendant must understand the consequences of the waiver.
United States v. Baty, 980 F.2d 977, 979 (5th Cir.
1992). Namely, “that [the defendant] had a right to
appeal his sentence and that he was giving up that
right.” United States v. Portillo, 18 F.3d
290, 292 (5th Cir. 1994)(quoting United States v.
Melancon, 972 F.2d 566, 568 (5th Cir. 1992)). The Court
can rely on the defendant's statements at his guilty plea
hearing because “[s]olemn declarations in open court
carry a strong presumption of verity.” Wilkes,
20 F.3d at 653 (quoting Blackledge v. Allison, 431
U.S. 63, 74 (1977)); United States v. Cantu, 273
F.3d 393, at *1 (5th Cir. 2001)(per curiam)(unpublished). In
Portillo, the Fifth Circuit held that “when
the record of the Rule 11 hearing clearly indicates that a
defendant has read and understands his plea agreement, and
that he raised no question regarding a waiver-of-appeal
provision, the defendant will be held to the bargain to which
he agreed, regardless of whether the court specifically
admonished him concerning the waiver of appeal.”
Portillo, 18 F.3d at 292-93.
motion, Jones does not challenge the knowledge or
voluntariness of his waiver of rights in the plea agreement.
Jones also doesn't claim that he did not understand the
plea agreement. Since there is no issue about the plea
agreement, then Jones' waiver of right to challenge his