United States District Court, W.D. Michigan, Southern Division
HOLMES BELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on Movant Vincent Jones's
motion to vacate, set aside or correct sentence pursuant to
28 U.S.C. § 2255 (ECF No. 1) and motion to amend or
correct (ECF No. 14). On September 9, 2016, the Government
filed a response in opposition. (ECF No. 8.) With his motion
to amend, Movant included an amended petition. The Court has
reviewed the merits of his amended claims. For the reasons
that follow, Movant's motion to amend is granted, and his
amended § 2255 motion is denied.
August 20, 2013, Movant pleaded guilty to felon in possession
of a firearm under 18 U.S.C. §§ 922(g)(1), 921(a),
and 924(a)(2), and possession of a firearm in furtherance of
drug trafficking under 18 U.S.C. § 924(c)(1)(A)(i). This
Court sentenced Movant to 152 months. The Court of Appeals
for the Sixth Circuit denied Movant's challenge to his
sentence and conviction. United States v. Vincent
Jones, 620 F. App'x 434, 442 (6th Cir. 2015).
Subsequently, Movant filed this motion to vacate, set aside
or correct sentence raising claims of ineffective assistance
of trial counsel, involuntary plea, and improper sentence
enhancement based on Johnson v. United States, 135
S.Ct. 2551 (2015). He filed an amended § 2255 motion
raising additional claims for warrantless arrest and
surveillance in violation of the Fourth Amendment, improper
guidelines sentence under § 1B1.10(d) amendments 599 and
782, and ineffective assistance of appellate counsel. Movant
also requested an evidentiary hearing, under Rule 8 of §
2255, and court-appointed counsel.
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such a sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion
“‘a petitioner must demonstrate the existence of
an error of constitutional magnitude which had a substantial
and injurious effect or influence on the guilty plea or the
jury's verdict.'” Humphress v. United
States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
errors are generally outside the scope of § 2255 relief.
United States v. Cofield, 233 F.3d 405, 407 (6th
Cir. 2000). A petitioner can prevail on a § 2255 motion
alleging non-constitutional error only by establishing a
“fundamental defect which inherently results in a
complete miscarriage of justice, or, an error so egregious
that it amounts to a violation of due process.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (quoting United States v. Ferguson, 918 F.2d
627, 630 (6th Cir. 1990) (internal quotations omitted)).
general rule, claims not raised on direct appeal are
procedurally defaulted and may not be raised on collateral
review unless the petitioner shows either (1)
“cause” and “actual prejudice” or (2)
“actual innocence.” Massaro v. United
States, 538 U.S. 500, 504 (2003); Bousley v. United
States, 523 U.S. 614, 621-22 (1998); United States
v. Frady, 456 U.S. 152, 167-68 (1982). An ineffective
assistance of counsel claim, however, is not subject to the
procedural default rule. Massaro, 538 U.S. at 504.
An ineffective assistance of counsel claim may be raised in a
collateral proceeding under § 2255, whether or not the
petitioner could have raised the claim on direct appeal.
Government contends that Movant's section 2255 motion
must be denied because, as part of his plea agreement, Movant
waived the right to collaterally attack his sentence. The
Court agrees as to Movant's claims that do not relate to
the voluntariness of waiver and whether the waiver was the
product of ineffective assistance of counsel.
movant “may waive any right, even a constitutional
right, by means of a plea agreement.” United States
v. Fleming, 239 F.3d 761, 763-64 (6th Cir. 2001). The
Sixth Circuit “enforce[s] such waivers according to
their terms, so long as the defendant entered into the plea
agreement knowingly and voluntarily.” Hardin v.
United States, 595 F. App'x 460, 461 (6th Cir.
2014). “[A] defendant who knowingly and voluntarily
agreed not to contest his sentence in any post-conviction
proceeding waived the right to argue in a § 2255 motion
that his counsel provided ineffective assistance at
sentencing.” Id. at 462 (citing Davila v.
United States, 258 F.3d 448, 451 (6th Cir. 2001)).
on Movant's statements under oath, the Court finds that
Movant's plea was knowing and voluntary. At his plea
hearing, the following exchanges occurred:
THE COURT: And is there anything medically or physically that
would keep you in any way from being able to understand and