United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO VACATE SENTENCE UNDER 28
U.S.C. § 2255 (ECF #21); (2) DENYING MOTION FOR
EXTENSION OF TIME TO FILE MOTION UNDER 28 U.S.C. § 2255
AS MOOT (ECF #19); AND (3) DENYING CERTIFICATE OF
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE.
23, 2016, Defendant Jared Lockwood (“Lockwood”)
was charged in an indictment with (1) manufacture of an
unregistered destructive device, (2) possession of an
unregistered destructive device, (3) a false statement or
representation made to a department or agency of the United
States, and (4) a false declaration before court.
(See ECF #1.) On August 23, 2016, pursuant to a Rule
11 plea agreement, Lockwood pleaded guilty to two counts in
the indictment, Count One: Manufacture of Unregistered
Destructive Devices and Count Four: False Declaration Before
the Court. (See Rule 11 Plea Agreement, ECF #12.) As
part of that agreement, Lockwood waived any right to appeal
his conviction, and he waived any right to appeal his
sentence if the Court imposed a sentence that did not exceed
120 months. (See Id. at §§ 3, 8, Pg. ID
42, 45.) The Court imposed a sentence of imprisonment of 120
months on Count One and 60 months on Count Four.
(See ECF #16 at Pg. ID 193.) The first 90 months of
the 120-month sentence was to be served concurrent with the
sentence in United States of America v. Lockwood,
No. 16-CR-20008, and concurrent with the 60-month sentence on
Count 4, and the final 30 months was to be served consecutive
to the sentence in United States of America v.
Lockwood, No. 16-CR-20008. (See id.) The Court
entered its Judgment on December 21, 2016. (See id.)
Lockwood did not appeal his sentence.
January 5, 2018, Lockwood filed a motion for an extension of
time to file a motion to vacate his sentence. (See ECF
January 18, 2018, Lockwood filed a motion to vacate or set
aside the sentence pursuant to 28 U.S.C. § 2255.
(See ECF #21.) He identifies the ground for this
motion as: “The sentence imposed intentionally shirks
the agreement and defeats the nature an [sic] spirit of the
Rule 11 plea.” (Id. at Pg. ID 216.) In
support, he argues the following:
On 12/13/2016, I was sentenced to 120 months on Count 1. 90
months served concurrent with sentence imposed in 16-cr-20008
(108 months) and 30 months served consecutive to 16-cr-20008
making an actual total sentence of 138 months.
The agreed guideline range was 110-137 months, with a
statutory maximum of 120 months. Due to a partial consecutive
sentence I received an overall sentence outside of the
guideline range, and above the statutory max.
reasons that follow, Lockwood's motion to vacate his
sentence is DENIED.
Lockwood has procedurally defaulted his claim because he did
not raise it on direct appeal. See Bousley v. United
States, 523 U.S. 614, 621 (1998). “Where a
defendant has procedurally defaulted a claim by failing to
raise it on direct review, the claim may be raised in habeas
only if the defendant can first demonstrate either
‘cause' and actual ‘prejudice, ' or that
he is ‘actually innocent.'” Id. at
622 (citations omitted). Lockwood has not demonstrated either
cause or actual prejudice or that he is innocent. Therefore,
his argument is procedurally defaulted.
in any event, Lockwood's claim fails on the merits. His
sentence of 120 months did not exceed the maximum sentence
allowed under the plea agreement, nor did it exceed the
statutory maximum. In fact, the sentence was a break for
Lockwood because the Court ran the vast majority of the
sentence concurrent to his sentence in United States v.
Lockwood (No. 16-20008). Lockwood has not shown any
error in the sentence imposed.
Lockwood is not entitled to a certificate of appealability
under 28 U.S.C. § 2253(c), because he has not made a
substantial showing of the denial of a constitutional right.
Moreover, reasonable jurists could not debate the correctness
of the Court's denial of Lockwood's motion, and the
issues raised by Lockwood do not deserve encouragement to
proceed further. See Slack v. McDaniel, 529 U.S.
473, 483-84 (2000) (setting forth standards for granting a
certificate of appealability).
IT IS HEREBY ORDERED THAT:
Lockwood's motion for relief from sentence is
Lockwood is DENIED a certificate of