United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER, UNITED STATES DISTRICT JUDGE.
the Court is a Motion for Post-Conviction Relief under 28
U.S.C. § 2255 (Rec. Doc. 432)
filed by Petitioner, Darryl Franklin. The government filed an
opposition thereto (Rec. Doc. 445), and Petitioner filed a
reply (Rec. Doc. 448). Having considered the motion and legal
memoranda, the record, and the applicable law, the Court
finds that the motion should be DENIED.
AND PROCEDURAL BACKGROUND
March of 2003, Petitioner pleaded guilty to counts 2, 4, 6,
8, and 10 of the Superseding Indictment charging him with
carjacking, attempted carjacking, and carjacking that
resulted in the death of Christopher Briede. (Rec. Doc. 50).
Pursuant to Rule 11(e)(1)(C),  Petitioner agreed to a life
sentence for the carjacking that resulted in Christopher
Briede's death. (Rec. Doc. 95). Petitioner also agreed to
plead guilty to first degree murder and received a life
sentence in Criminal District Court in Orleans Parish. (Rec.
Doc. 95 at 2). This Court accepted the 11(e)(1)(C) plea
agreement between the government and the defendant,
sentencing him to life imprisonment. (Rec. Doc. 118).
2016, Petitioner filed for relief under 28 U.S.C. §
2255. (Rec. Doc. 432). This Court rejected Petitioner's
argument that he was entitled to relief under Johnson v.
United States, 135 S.Ct. 2551 (2015) because
Petitioner's sentence was enhanced by U.S.S.G.
§§ 2B3.1 and 2A1.1, and not under the residual
clause of 18 U.S.C. § 924(e). (Rec. Doc. 440). However,
this Court ordered the government to respond to
Petitioner's remaining claims. (Rec. Doc. 440).
2255 provides that a federal prisoner serving a court-imposed
sentence may move the court that imposed the sentence to
vacate, set aside or correct the sentence. 28 U.S.C. §
2255(a). Only a narrow set of claims are cognizable on a
section 2255 motion. The statute identifies four bases on
which a 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. A claim of error that
is neither constitutional nor jurisdictional is not
cognizable in a section 2255 proceeding unless the error
constitutes “a fundamental defect which inherently
results in a complete miscarriage of justice.”
United States v. Addonizio, 442 U.S. 178, 185 (1979)
(quoting Hill v. United States, 368 U.S. 424, 428
section 2255 motion is filed, the district court must first
conduct a preliminary review. “If it plainly appears
from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to
relief, the judge must dismiss the motion.” Rules
Governing Section 2255 Proceedings, Rule 4(b). If the motion
raises a non-frivolous claim to relief, the court must order
the government to file a response or to take other
appropriate action. Id. After reviewing the
government's answer, any transcripts and records of prior
proceedings, and any supplementary materials submitted by the
parties, the court must determine whether an evidentiary
hearing is warranted. Rules Governing Section 2255
Proceedings, Rule 8. An evidentiary hearing must be held
unless “the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b). No. evidentiary
hearing is required, however, if the prisoner fails to
produce any “independent indicia of the likely merit of
[his] allegations.” United States v. Edwards,
442 F.3d 258, 264 (5th Cir. 2006) (quoting United States
v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).
the Court recognizes that the defendant's pro se
complaint must be construed liberally. Haines v.
Kerner, 404 U.S. 519, 520 (1972); see also Hernandez
v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (“The
filings of a federal habeas petitioner who is proceeding pro
se are entitled to the benefit of liberal
Petitioner's Claims are Untimely
to 28 U.S.C. § 2255(f), all § 2255 petitions must
be filed within one year of (1) the date on which the
judgment of conviction becomes final; (2) the date on which
the governmental impediment to making a motion in violation
of the Constitution or laws of the United States is removed;
(3) the date on which the newly-recognized right asserted was
initially recognized by the United States Supreme Court and
made retroactively applicable to cases on collateral review;
or (4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
instant case, Petitioner filed his § 2255 motion in June
2016- approximately thirteen years after his judgment of
conviction became final. See Rec. Doc. 118;
United States v. Scruggs, 691 F.3d 660, 669 (5th
Cir. 2012) (“When a defendant does not file a direct
appeal, his conviction becomes final on the day when the time
for filing a direct appeal expires.”). ...