United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
the Court is Derrick Mosely's motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255.
For the reasons that follow, the motion is DENIED.
Mosely, a federal prisoner, asks this Court to vacate his
188-month sentence of imprisonment, in light of two recent
Supreme Court decisions.
April 1, 2010, Derrick Mosely pleaded guilty without a plea
agreement to a three-count indictment, charging him with
distributing a quantity of cocaine hydrochloride, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C). Before Mosely entered his guilty plea, the
Government filed a Bill of Information to Establish Prior
Conviction, pursuant to 21 U.S.C. § 851(a). The Bill of
Information indicated that Mosely had been convicted of a
felony drug offense under Louisiana law on or about July 19,
2005 - possession with intent to distribute cocaine.
Accordingly, as to each count, Mosely faced a statutory
maximum of 30 years' imprisonment.
to sentencing, the U.S. Probation Office prepared a
Presentence Investigation Report. Based on Mosely's 2005
conviction for possession with intent to distribute cocaine,
coupled with a 1999 conviction for possession with intent to
distribute and distribution of cocaine, the PSR classified
Mosely as a career offender under U.S.S.G. §
4B1.1. Because Mosely faced a statutory maximum
penalty of 30 years' imprisonment, his designation as a
career offender resulted in a base offense level of 34 and a
total offense level of 31, following a reduction for
acceptance of responsibility. When combined with a criminal
history category of VI, the Sentencing Guidelines called for
an imprisonment range of 188 to 235 months. On October 20,
2010, the Court sentenced Mosely to 188 months'
imprisonment. He did not file a direct appeal.
two recent Supreme Court decisions, Mosely now seeks
post-conviction relief from his sentence pursuant to 28
U.S.C. § 2255.
prisoner 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(a). “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 it constitutes a
“fundamental” error that “renders the
entire proceeding irregular and invalid.” United
States v. Addonizio, 442 U.S. 178, 186 (1979). Because a
defendant may challenge the district court's technical
application of the Sentencing Guidelines on direct appeal,
such a claim is not cognizable on collateral review. See
Cardenas v. United States, No. 1:16-306, 2018 WL
4599838, at *17 (S.D. Tex. May 7, 2018) (citing United
States v. Hixon, 62 F.3d 393 (5th Cir. 1995));
United States v. Porter, No. CR 01-282, 2007 WL
4348953, at *8 (E.D. La. Dec. 7, 2007) (Vance, J.) (citing
United States v. Segler, 37 F.3d 1131, 1134 (5th
Court “may entertain and determine [a motion to vacate]
without requiring the production of the prisoner at the
hearing.” 28 U.S.C. § 2255(c). 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) (“[I]f 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 . . . .”).
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(b).
motion to vacate filed under § 2255 is subject to a
one-year limitations period, which runs from the latest of:
(1) when the judgment of conviction becomes final; (2) when a
government-created impediment to filing the motion is
removed; (3) when the Supreme Court initially recognized as a
new right the legal predicate for the motion, if that right
has been made retroactively applicable to cases on collateral
review; or (4) when the petitioner could have discovered,
through due diligence, the factual predicate for the motion.
28 U.S.C. § 2255(f). Although the one-year limitations
period does not operate as a jurisdictional bar, the ...