United States District Court, E.D. Louisiana
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Vacate Pursuant to 28 U.S.C.
§ 2255 (Rec. Doc. 518) filed
by Defendant Trey Mitchell. The United States of America
(“the Government”) opposes the motion
(Rec. Doc. 530). Having considered the
pro se motion, the opposition, the record, and the
applicable law, the Court finds that Defendant's
Motion to Vacate Pursuant to 28 U.S.C. §
2255 (Rec. Doc. 518) is
DENIED for the reasons set forth below.
District Court Judge previously presiding in this
matter held a rearraignment on September 16,
2015, during which Mitchell plead guilty to Count 2 of a
Superseding Indictment. Pursuant to the plea agreement and as
admitted to by Mitchell in the factual basis, he committed a
violation of 21 U.S.C. § 841(a)(1). (Rec. Doc. 349,
350). On March 2, 2016, the court sentenced Mitchell to 188
months to be served consecutively with state sentences that
have been imposed. (Rec. Doc. 419). Mitchell brings the
instant pro se motion to vacate the sentence
alleging three grounds: (1) he is innocent; (2) his career
offender enhancement under the guidelines was inappropriate;
and (3) incompetent and infective assistance of counsel.
(Rec. Doc. 518).
2255 “provides the federal prisoner with a
post-conviction remedy to test the legality of his detention
by filing a motion to vacate judgment and sentence in his
trial court.” U.S. v. Grammas, 376 F.3d 433,
436 (5th Cir. 2004) (quoting Kuhn v. U.S., 432 F.2d
82, 83 (5th Cir. 1970)). The statute establishes that a
prisoner in custody under a sentence of a federal court
“may move the court which imposed the sentence to
vacate, set aside or correct the sentence.”
Id. (quoting 28 U.S.C. § 2255). Where there has
been a “denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable
to collateral attack, the court 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.” Id. Relief under 28
U.S.C. § 2255 is reserved for violations of
constitutional rights and for a narrow range of injuries in
federal criminal cases that could not have been raised on
direct appeal and would result in a fundamental miscarriage
of justice. U.S. v. Petrus, 44 F.3d 1004 (5th Cir.
1994) (citing U.S. v. Vaughn, 955 F.2d 367, 368 (5th
district court may deny a Section 2255 motion without
conducting any type of evidentiary hearing if “the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.”
U.S. v. Arguellas, 78 Fed.Appx. 984, 986 (5th Cir.
2003) (quoting 28 U.S.C. § 2255; U.S. v.
Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)). In those
cases, however, where the record does not conclusively negate
a prisoner's entitlement to relief, contested fact issues
may not be decided on affidavits alone. Id. (citing
Owens v. U.S., 551 F.2d 1053, 1054 (5th Cir. 1977)).
No. hearing is necessary if the issues raised have been
previously decided on direct appeal, contain no
constitutional violation, or lack support in the record.
U.S. v. McCollom, 664 F.2d 56, 59 (5th Cir. 1981)
(citing Buckelew v. U.S., 575 F.2d 515 (5th Cir.
Law and Analysis
argues that his sentence should be vacated based upon three
grounds: (1) he is innocent; (2) his career offender
enhancement under the guidelines was inappropriate; and (3)
incompetent and infective assistance of counsel. The
Government argues that the Court should deny Mitchell's
motion because: (1) his 2255 motion is untimely; (2) his
arguments about his actual innocence and the sentencing
guildelines are procedurally barred; and (3) alternatively,
his arguments including ineffectiveness of counsel do not
have merit. (Rec. Doc. 530, p. 4). Upon review of each ground
Mitchell alleges, the Court is persuaded by the
Government's response and denies Mitchell's motion.
to 28 U.S.C. § 2255(f), a motion to vacate the sentence
is subject to a one-year period of limitation which shall run
from the date on which the judgment of conviction becomes
final. A judgment becomes final when “the federal
prisoner fails to file a notice of appeal from his
conviction.” U.S. v. Plascencia, 537 F.3d 385,
388 (5th Cir. 2008). In criminal cases, the notice of appeal
must be filed within fourteen days of the entry of the
judgment. Fed. R. App. (4)(b)(1)A)(i).
Court finds that Mitchell's claims are barred as
untimely. The entry of judgment was signed by Judge
Engelhardt on March 3, 2016. Mitchell's sentence became
final on March 21, 2016; therefore he had until March 21,
2017 to file his motion to vacate the sentence. Considering
Mitchell filed this motion on August 14, 2018, the Court
finds that the motion is denied as untimely.
the Court also denies the motion on the merits.
Mitchell's first claim is that he is actually innocent of
conspiring to distribute narcotics, and his second claim is
that he was incorrectly classified as a “career
offender.” In its opposition, the Government counters
by stating that these claims are barred by the collateral
review waiver in his plea agreement. (Rec. Doc. 530, p. 15).
The Government ...