JACKSON v. UNITED STATES OF AMERICA, No. 3:2016cv03089 - Document 8 (D.N.J. 2017)

Court Description: OPINION filed. Signed by Judge Anne E. Thompson on 8/28/2017. (mps)
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JACKSON v. UNITED STATES OF AMERICA Doc. 8 RECEIVED SEP 0 5 2017 IN THE UNITED STATES DISTRICT COURT I FOR THE D]STRICT OF NEW JERSEY AT 8:30 M I CLERK HONORABLE ANNE E. THOMPSON KEVINE JACKSON, Petitioner, .i).··l v. Civil Action No. 16-3089 (AET) OPINION UNITED STATES OF AMERICA, Respondent. APPEARANCES: Kevine Jackson, Petitioner pro se 65754-050 Federal Correctional Institution Hazelton P.O. Box 5000 Bruceton Mills, WV 26525 I R. Joseph Gribko, AUSA United States Attorney's Office 970 Broad Street Suite 700 Newark, New Jersey 07102 Attorney for Respondent United States of America . . THOMPSON, District Ju d qe: I . I INTRODUCTION Kevine Jackson ("Petitioner") moves to vacate, correct, or set aside his federal sentelce pursuant to 28 U.S.C. § 2255. Amended Motion, Docket Entri 5. Respondent Uni ted;,,States of America opposes the motion. Answer, Docket Entry 7. For the reasons stated herein, Petittioner's motion is denied, and no certificate of appealabilitJ will issue. Dockets.Justia.com I I . BACKGROUND On August 1, 2013, Petitioner was charged via complaint with possessing a firearm and ammunition after being convicted of a crime punishable by more than one year. 18 U.S.C. § 922(g) (1). The FBI searched Petitioner's home on August 9, 2013 and discovered evidence Answer trafficking and dog fighting. 24-25. Petitioner and the United States entered into a plea agreement in which Petitioner agreed to plead guilty to an information charging him with rne count of unlawful possession of a firearm, 18 U.S.C. § 922(g) (1), and one count of possession of an animal for the purpose of engaging in an animal fighting venture, 7 U.S.C. § 2156(b). Plea Agreement, Respondent Exhibit A. The United States agreed nol to prosecute Petitioner for certain other firearms and conJrolled substances offenses in exchange for Petitioner's guiljy plea. Id. at 1. Petitioner also agreed to waive certain appella\te and collateral attack rights. Plea Agreement Schedule A ("Schedule A") I 15. . The Court conducted a hearing pursuant to Federal Rule of Criminal Procedure 11 on Septernler 29, 2014 .. Plea Transcript, Respondent Exhibit C. Petitione1 confirmed he wanted to waive \ . ' his right to have a grand jury neturn an indictment and that no one had threatened him or promijed him anything that was not in the plea agreement in order to get him to plead guilty. Id. 5:6- 25. He further confirmed he sligned the Rule 11 form after reviewing it with his Id. 7:1-5, 11:16-20. See also Application for Permission to Plead Guilty ("Rule 11 Form"), Respondent Exhibit B. The reviewed the rights Petitioner waived by pleading guilty, anl the United States reviewed the terms of the plea agreement. f The parties agreed that everal sentencing enhancements applied to Petitioner's sentence, including two four-level I enhancements under U.S.S.G. §§ 2K2.l(b) (5) and 2K2.l(b) (6) (B). Schedule A!! 5, 7. The agreelent also set forth that Petitioner I , waived his right to file an awpeal or collateral attack, I including a motion pursuant tm 28 U.S.C. § 2255, that "challenge[d] the sentence imlosed by the sentencing court if that sentence falls within or below the Guidelines range that results from offense level 35 or, if U.S.S.G. 5Gl.l(a) applies in accordance with paragraph 13, 180 months." Id. ! 15. The parties agreed that a Id. i sentence would be reasonable. 13. The United States agreed to submit a 5Kl.1 motion. Answer ! 31. Petitionjr indicated the United States' summary of the plea agreement conformed to his understanding of the terms, and admitted to selling firearms and possessing them in connection with narcotics and to possessing pit bulls for the purpose of dog flghting. Plea Transciipt 15:11-13, I 17:14 to 18:14. The Court accepted Petitioner's guilty plea and 3 determined Petitioner was knowingly and voluntarily waiving his rights. Id. 19:11-14. The parties appeared before the Court on May 28, 2015 for . I . sentencing. Sentencing Transcript, Respondent's Exhibit D. The Court calculated the guideline range to be between 262 and 327 months based on an offense level of 34 and criminal history . I category of 6. Id. 18:4-8. After hearing argument from trial counsel and Petitioner regarditg mitigating factors, the Court sentenced Petitioner to 110 moiths incarceration. Id. 18:20-22. Petitioner did not file a dire it appeal. Petitioner filed a motion under 28 U.S.C. § 2255 on May 31, 2016. Docket Entry 1. On June 2, 2016, this Court issued a notice and order pursuant to ulited States v. Miller, 197 F.3d 644 (3d Cir. 1999) advising PeJitioner of his rights and the potential consequences of fililg the § 2255 motion. Miller Order, Docket Entry 2. Petitioler responded on June 20, 2016 indicating he wished to withdrjw the filed petition and file a I new all-inclusive petition. Miller Response, Docket Entry 3. The Court gave Petitioner 30 days Jo submit his all-inclusive petition, which Petitioner sublitted on July 27, 2016, Docket Entry 5. Respondent filed its jnswer on October 28, 2016, Docket Entry 7, and Petitioner did noj submit a traverse. The motion i ; now being cjnsidered on the papers as the record conclusively shows Petijioner is not entitled to an 4 evidentiary hearing or relief. Fed. R. Civ. P. 78(b); 28 U.S.C. § 2255 (b) . III. STANDARD OF REVIEW Section 2255 provides in relev?nt part that (a] prisoner in cus ody under sentence of a court established by Act of Co,gress claiming the right to be the ground the sentence was . in violation of the Consf itution or laws of the United States ... may move the c ourt which imposed the sentence to vacate, set aside or the sentence. 1 28 U.S.C. § 2255(a). A distri1t court must hold an evidentiary I hearing on a § 2255 motion unless the "motion and the files and records of the case conclusivlly show" that the movant is not entitled to relief. 28 U.S.C. § 2255(b); see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005). Here, the record conclusively demonstrates tha! Petitioner is not entitled to relief. IV. ANALYSIS Petitioner argues his semtence is invalid because the Court I . . erroneously applied a four-level enhancement under U.S.S.G. 2K2.l(b) (5) § (Ground One); thele was not sufficient evidence to . I warrant an enhancement under r.S.S.G. § 2K1.2(b) (6) (B) (Ground Two); and, the Court failed t© adequately consider the factors in 18 U.S.C. § 3553(a) I (Grounili Three). Respondent argues the I claims are barred by the appellate and collateral attack waiver · · · I · · provision in t h e p l ea agreement, t· h at p etitioner proce d.ura 11 y 5 defaulted on the claims, and Petitioner has not been prejudiced by any errors. A. Waiver of Collateral Attack Rights ncriminal may waive both constitutional and statutory rights, provided they do so voluntarily and with knowledge of the nature and consequences of the waiver. The right to appeal in a case is among those rights that may be waived." United rtates v. Mabry, 536 F.3d 231, 236 (3d Cir. 2008), cert. 557 U.S. 903 (2009). "[W]aivers of appeals should be striclly construed" and nif entered into knowingly and . 273 F.3d 557, 562 (3d I are valid." United States v. Khattak, 2001). As Respondent argues the motion should be dismissed under the waiver in the plea I agreement, the Court will not review the merits if: "(1) the issues raised fall withln the scope of the appellate waiver; and (2) [Petitioner] knowinlly and voluntarily agreed to the appellate waiver; unlesl (3) enforcing the waiver would 'work a I miscarriage of justice.]" United States v. Erwin, 765 F.3d 219, 225 (3d Cir. 2014) (quoling Uni.ted States v. Grimes, 739 F.3d 125, 128-19 (3d Cir. 2014)), cert. denied, 136 S. Ct. 400 (2015). Petitioner's plea rgreement stated in relevant part: KEVINE JACKSON knows that he has and, except as noted below in this para6 raph, voluntarily waives, the right to file any any collateral attack, or any other . 1 6 writ or motion, including but not limited to . . a motion under 28 U.S.C. § 2255, which challenges the sentence impose, by the sentencing court if that sentence falls or below the Guidelines range that results from offknse level 35 or, if U.S.S.G. 5Gl.l(a) applies in accorhance with paragraph 13, 180 months. . . The provisio+s of this paragraph are on the parties even if lhe Court employs a Guidelines analysis different from that stipulated to herein. Furthermore, if the court accepts a stipulation, both parties waive thb iight to file an appeal, collateral attack, writ, o.i- motion claiming that the sentencing court erred in d6ing so. Schedule A 15. The I sentenced Petitioner to 110 months, below the Guideline rlnge of 262 months to 327 from an offense level of 34 and I history category of 6. Sentencing Transcript 18:4-8. As the sentence was below the guidelines range for offense level 35, the Court finds that Petitioner's arguments fall within the plain terms of the waiver provision. The Court also finds that Petitioner knowingly, I voluntarily, and intelligently waived his right to raise a collateral attack. Pelitioner signed the application for permission to plead glilty acknowledging the waiver. Rule 11 Form ! 40. The Court luestioned Petitioner at length during the Rule 11 hearing regar1ing his understanding of the plea agreement and I desire to plead guilty. See generally Plea Transcript. See also R. Crim. P. ll(c). Petitioner stated under oath that no onl threatened him or promised him anything other than what was slated in the plea agreement. Plea Transcript 5:16-21. Hi confirmed his medication had no effect on 7 his ability to understand the proceedings. Id. Counsel for the United States reviewed the appellate waiver, id. 14:1524, and Petitioner confirled the Government's description of .the I. plea agreement reflected his own understanding of the terms, id . . 15: 11-13. The record clea/rly indicates Petitioner knowingly and voluntarily agreed to th) waiver. The waiver must therefore be enforced unless there is "the 'unusual circumstance' of 'an error amounting to a misrarriage of justice' in his sentence." r65 United States v. Erwin, (quoting United States 1· F.3d 219, 226 (3d Cir. 2014) Khattak, 273 F.3d 557, 562 (3d Cir. I 2001)). The Court finds that enforcement of the waiver provision would not work a miscarliage of justice. In making this determination, the Cour/t considers "' [t] he clarity of the error, its gravity, its character (e.g., whether it concerns a fact I .· issue, a sentencing guideline, or a statutory maximum), the impact of the error on/the defendant, the impact of correcting the error on the government, and the extent to which the defendant acquiesced jn the result.'" United States v. Grimes, (quoting Khattak, 273 F.3d at 739 F.3d 125, 130 (3d/Cir. 2014) 563). Here, the balance of these factors weigh in favor of enforcing the waiver.I Petitioner.raises no constitutional claims or arguments I . that trial counsel rendered ineffective assistance in 8 negotiating the plea. He argues only that the Court erred in calculating his sentence. This is "'precisely the kind of "garden variety" claim of errlr contemplated by [an] appellate waiver. ' It is not a 'mi scarJiage of just ice. ' " United States v. Castro, 704 F.3d 125, 141-421 (3d Cir. 2013) United States, (quoting Sotirion v. 617 F.3d 27,J38 (1st Cir. 2010)) (second alteration in original). Pe 1itioner specifically agreed to the application of the four-levll enhancements under§ 2K2.l(b) (5) and§ 2K2.l(b) (6) (B). ScheJule I 5, 7. The facts agreed to by Petitioner in the plea agreement and stated at the Rule 11 hearing support each of thlse enhancements, and the Court considered all of the mitlgating factors raised by Petitioner . ·. I . . ' . an d counse 1 in th eir sen t encing su b mission an d arguments. Even if the Court did err, Petrtioner was not significantly impacted because the imposed sentence of 110 months is far below the agreed-upon reasonable slntence of 180 months. Finally, the Government would be harjed by not enforcing the waiver because it would be deprived of/the benefit of its bargain with Petitioner. Having weilhed the Kha ttak factors, the Court .finds enforcing the waiver would not be a miscarriage of justice. . I The collateral atrack provision is binding and enforceable against Petitioner. Tne petition shall be denied as barred by the plea agreement. 9 B. Certificate of Appealabilitl An appeal may not be taken to the court of appeals from a final order in a 2255 proceeling unless a judge issues a § certificate of appealability 1n the ground that "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § / 2253(c) (20. This Court denies a certificate of appealability because jurJsts of reason would not find it debatable that the arguments/in the motion are covered by the collateral attack provision and that the waiver provisions should be enforced. V. CONCLUSION For the reasons stated above, Petitioner's Motion to Vacate, Correct, or Set Aslde his sentence is denied as it is barred by the plea agreemeht. No certificate of appealability shall issue. An accompanyJng Order will be entered. ANNE U.S. District Judge 10