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United States v. Mosely

United States District Court, E.D. Louisiana

August 21, 2019


         SECTION “F”



         Before 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.


         Derrick Mosely, a federal prisoner, asks this Court to vacate his 188-month sentence of imprisonment, in light of two recent Supreme Court decisions.

         On 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.

         Prior 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.[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.

         Invoking two recent Supreme Court decisions, Mosely now seeks post-conviction relief from his sentence pursuant to 28 U.S.C. § 2255.


         A 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).[2] “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 Cir. 1994)).

         The 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 . . . .”).

         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(b).


         A 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 ...

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