United States District Court, E.D. Missouri, Eastern Division
RANDY A. JONES, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE
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].
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. 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
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)).
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
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).
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.
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.
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.
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 ...