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Jones v. United States

United States District Court, E.D. Missouri, Eastern Division

March 14, 2017

RANDY A. JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Randy A. Jones's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [ECF No. 1].

         I. BACKGROUND

         On June 10, 2015, Petitioner Randy A. Jones (“Petitioner”) was indicted for conspiracy to distribute and possess with intent to distribute 1000 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, knowingly and intentionally possessing with intent to distribute more than 50 kilograms of marijuana in violation of 21 U.S.C. § 841(a)(1), and conspiracy to launder money in violation of 18 U.S.C. 1956.[1] On January 7, 2016, Petitioner pled guilty to all three counts. On April 15, 2016, Petitioner was sentenced to 96-months imprisonment, and a four-year term of supervised release. Petitioner filed the current motion on December 8, 2016, asserting his conviction should be set aside, because his counsel was ineffective and there was prosecutorial misconduct.

         II. STANDARD

         A federal prisoner who seeks relief under 28 U.S.C. § 2255 on grounds “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). In order to obtain relief under § 2255, the petitioner must establish a constitutional or federal statutory violation constituting “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).

         Claims brought under § 2255 may be limited by procedural default. A petitioner “cannot raise a non-constitutional or non-jurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not.” Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Claims, including those concerning constitutional and jurisdictional issues, unraised on direct appeal cannot subsequently be raised in a ' 2255 motion unless the petitioner establishes “(1) cause for default and actual prejudice or (2) actual innocence.” United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 621-22 (1998)).

         However, ineffective assistance of counsel claims may be raised for the first time in a § 2255 motion even if they could have been raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). This exception is in place to prevent petitioners from being forced “to raise the issue before there has been an opportunity fully to develop the factual predicate for the claim.” Id. Additionally, a petitioner's attorney may serve as counsel for both the trial and appellate case, and it is unlikely that the attorney would raise a claim of his own ineffective assistance on appeal. See United States v. Rashad, 331 F.3d 908, 911 (D.C. Cir. 2003).

         To excuse procedural default, however, a petitioner, raising a constitutional claim for the first time in a § 2255 proceeding, still must demonstrate cause and prejudice. Anderson, 25 F.3d at 706. Ordinarily, issues that were raised and decided on direct appeal cannot be relitigated in a § 2255 motion. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001). Exceptions to this rule are recognized only upon production of convincing new evidence of actual innocence, and are available only in the extraordinary case. Id.

         If the petitioner's claims are not procedurally barred, the Court must hold an evidentiary hearing to consider the claims “[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994). A petitioner is entitled to an evidentiary hearing “when the facts alleged, if true, would entitle [the petitioner] to relief.” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (citation omitted). However, a court may dismiss a claim without a hearing “if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based.” Shaw, 24 F.3d at 1043.

         III. DISCUSSION

         Petitioner asserts eight grounds for why his conviction should be vacated. Petitioner alleges six grounds of ineffective assistance of counsel: (1) failure to object to the Government's use of a cell-site simulator prior to receiving a warrant, an illegal search in violation of the Fourth Amendment; (2) failure to object to false and misleading statements made by the Assistant United States Attorney; (3) failure to object to the Government's failure to disclose a direct statutory sentencing consequence; (4) failure to object to the Court's references to the sentencing guidelines; (5) failure to object to the aggravating role enhancement under the sentencing guidelines; and (6) failure to object to the obvious sentencing disparity. Petitioner also asserted two instances of alleged prosecutorial misconduct: (1) the Assistant United States Attorney knowingly made false and misleading statements in response to Petitioner's request for a continuance and removal of GPS tracking; and (2) failure to disclose a direct statutory sentencing consequence in the written plea agreement. The Court will address each ground of Petitioner's Motion as follows.

         A. Unconstitutional Search

         Petitioner alleges the Government tracked his cell phone, and his location, using a “cell-site simulator” known as a “Triggerfish” for several months before the Government obtained a warrant to conduct a wiretap on Petitioner's cell phone. His counsel, at the time, filed a motion to suppress the evidence obtained through the wiretap warrant, but did not seek to exclude any evidence on the basis of the use of a cell-site simulator. Petitioner argues his counsel was ...


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