Cox v. United States of America
MEMORANDUM OPINION and ORDER granting (doc #5) motion to dismiss. Signed by Judge James H Hancock on 5/2/13. (ASL)
2013 May-02 AM 09:38
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CHARLES EDWARD COX,
UNITED STATES OF AMERICA,
MEMORANDUM OPINION and ORDER
The court has before it Charles Edward Cox’s Motion (Doc. #1) to Vacate Set,
Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, filed on December 5, 2012,
and his Supplemental Motion (Doc. #2) pursuant to § 2255, filed on December 6,
2012. Pursuant to the court’s December 12, 2012 order (Doc. # 3), the United States
Government filed a response (Doc. #5) to Cox’s Motion (Doc. #1) to Vacate and
Supplemental Motion (Doc. #2) to Vacate. In its response, the Government seeks to
have the Motions (Docs. #1, 2) to Vacate dismissed in their entirety, or in alternative
for summary judgment.1 Pursuant to the court’s January 15, 2013 order (Doc. #6),
Cox filed an affidavit (Doc. #7) in support of his Motion on January 30, 2013.
Two days before the Government filed its response, Movant filed another Supplemental
Motion (Doc. #4) to Vacate. The court allowed the Government an opportunity to supplement its
response, but it did not do so.
On July 26, 2011, a federal grand jury returned a one-count indictment against
Cox, charging him with being a Felon in Possession of a Firearm in violation of 18
U.S.C. § 922(g)(1). (Doc. #1 in Case No. 2:11-cr-295-JHH-HGD.) The parties filed
a written Plea Agreement on September 29, 2011. (Id. # 13.) The plea agreement
contained a “waiver of right to appeal and post conviction relief” provision.
On September 29, 2011, the court held a change of plea hearing where Cox
entered a plea of guilty as to the single count in the indictment, and on January 10,
2012, Cox was sentenced to 42 months of imprisonment. (Id. # 18.) On January 21,
2012, Cox timely filed a motion to appeal the judgment. (Id. # 19.) On October 22,
2012, the Eleventh Circuit Court of Appeals issued a mandate with an unpublished
opinion affirming the judgment of the court. (Id. # 27.)
Before the mandate issued, on October 15, 2012, Cox filed a motion to void the
judgment. (Id. # 26.) On December 5, 2013, the court issued an order stating that
his motion would be considered as a Motion to Vacate filed under 28 U.S.C. § 2255,
and allowed Cox thirty days to amend his motion. (Id. # 28.) On December 5, 2013,
Cox amended and re-filed his Motion as one under § 2255. (Id. # 29; Doc. #1 in
instant action.) Cox’s Motion (Doc. #1) to Vacate seeks relief on one ground - actual
innocence of the crime of being a felon in possession because the firearm he
possessed was manufactured in Alabama.
A federal prisoner may file a motion to vacate his or her sentence “upon the
ground that 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.” 28 U.S.C. § 2255 ¶ 1. It is well settled that “to obtain
collateral relief, a prisoner must clear a significantly higher hurdle than would exist
on direct appeal.” United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71
L.Ed.2d 816 (1982).
The Government makes four arguments as to why the § 2255 Motion should
be dismissed. First, the Government contends that Cox waived his right to file a
petition under § 2255 in his plea agreement. (Doc. # 5 at 6-10.) Second, the
Government argues that Cox has not presented a cognizable claim under § 2255. (Id.
at 10-11.) Third, the Government contends that Cox’s claim is procedurally defaulted
because he did not raise the issue on direct appeal. (Id. at 11-14.)
Government argues that his claim is without merit. (Id. at 14-15.) The court
addresses each argument in turn.
A. Appeal Waiver
An appeal waiver is enforceable if the waiver is made knowingly and
voluntarily. United States v. Rubbo, 396 F.3d 1330, 1331 (11th Cir. 2005); United
States v. Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). Appeal waivers extend
to collateral attacks. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir.
2005). To establish the validity of an appeal waiver, the United States must show
either (1) that the district court specifically questioned the defendant about the plea
waiver during the plea colloquy; or (2) that it is manifestly clear from the record that
the defendant fully understood the significance of the waiver. Id. at 1341; Under
States v. Weaver, 275 F.3d 1320, 1333 (11th Cir. 2001).
In his Plea Agreement, Cox expressly waived his right to appeal his conviction
and sentence. (Doc. #13 in Case No. 2:11-cr-295-JHH-HGD.) The written waiver
also expressly included “a motion brought under § 2255.” (Id.) The plain language
of the appeal waiver, which Cox admitted, under oath, to discussing with his attorney,
informed Cox that he was waiving his right to collaterally attack his conviction and
sentence. (Id. # 23 at 6.) Moreover, the waiver provision in the plea agreement
contains an internal signature provision that Cox signed directly below the appeal
waiver provision. (Id. #13.) Additionally, during his change of plea hearing, the
court specifically referenced the waiver of Cox’s right to appeal. (id. # 23 at 6) and
the court later determined that Cox knowingly and voluntarily entered into the plea
agreement. (Id. #23 at 13-14.)
On this basis alone, Cox’s § 2255 motion is subject to dismissal. Out of an
abundance of caution, however, the court will continue with the analysis and
arguments presented by the Government. Even if the appeal waiver was somehow
invalid (which it was not), Cox’s Motion remains subject to dismissal.
B. Cognizable Claim
In his § 2255 Motion to Vacate, Cox argues that the Government made
misrepresentations in his Plea Agreement and to the court regarding the gun in
question. Specifically, Cox contends that the government stated in The Rule 11
hearing that the gun was not manufactured in Alabama , and that his Plea Agreement
reflects the same. Cox argues, however, that the firearm was manufactured in
Alabama, and that it did not travel through interstate commerce, as required by §
The threshold inquiry the court must address is whether Cox’s claim that the
firearm did not travel through interstate commerce is cognizable under § 2255. Burke
v. United States, 152 F.3d 1329, 1331 (11th Cir. 1998). Courts have consistently
held that a § 2255 motion is not a substitute for a direct appeal. See, e.g., United
States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982)
(collecting cases). Instead, “[r]elief under 28 U.S.C. § 2255 ‘is reserved for
transgressions of constitutional rights and for that narrow compass of other injury that
could not have been raised in direct appeal and would, if condoned, result in a
complete miscarriage of justice.’” Richards v. United States, 837 F.2d 965, 966 (11th
Cir. 1988) (quoting United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A
Sep. 1981)). Thus, non-constitutional claims can be raised on collateral review only
when the alleged error constitutes a “‘fundamental defect which inherently results in
a complete miscarriage of justice [or] an omission inconsistent with the rudimentary
demands of fair procedure. ” Reed v. Farley, 512 U.S. 339, 348, 114 S.Ct. 2291,
2297, 129 L.Ed.2d 277 (1994) (quoting Hill v. United States, 368 U.S. 424, 428, 82
S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)) (alteration in original).
Cox’s challenge here is essentially one of sufficiency of the evidence. He
contends that the Government did not establish one of the elements of the crime for
which he pled guilty. Such a claim is not cognizable on a collateral motion under §
2255. United States v. Forrester, 456 F.2d 905, 905 (11th Cir. 1972) (“This
contention questions only the sufficiency of the evidence to sustain Forrester’s
conviction, and is not a contention cognizable on a collateral motion under § 2255.”);
Enzor v. United States, 296 F.2d 62, 63 (5th Cir.1961) (“The sufficiency of the
evidence was a question which could and should have been raised on the original
Because an evidentiary sufficiency challenge is not cognizable on a
motion to vacate under § 2255, Cox’s argument offers no basis for relief.
Even if the court were to accept Cox’s characterization of his claim as a
constitutional claim and cognizable in a § 2255 motion, the motion would still be
subject to dismissal under the procedural default rule.
C. Procedural Default
Under the procedural default rule, a defendant generally must advance an
available challenge to a criminal conviction or sentence on direct appeal or else the
defendant is barred from presenting that claim in a § 2255 proceeding. McCoy v.
United States, 266 F.3d 1245, 1258 (11th Cir. 2001); Jones v. United States, 153 F.3d
1305, 1307 (11th Cir. 1998); Greene v. United States, 880 F.2d 1299, 1305 (11th Cir.
1989). This rule generally applies to all claims, including constitutional claims. See
Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 2300, 129 L.Ed.2d 277 (1994)
(“Where the petitioner—whether a state or federal prisoner—failed properly to raise
his claim on direct review, the writ is available only if the petitioner establishes cause
for the waiver and shows actual prejudice resulting from the alleged violation.”
(internal quotation marks, punctuation, and citations omitted)); see also Wainwright
v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977) (applying
cause and prejudice standard to constitutional claims).
Cox did not raise the issue of whether the gun traveled through interstate
commerce on direct appeal. As the Eleventh Circuit stated in its opinion in Cox’s
direct appeal, “the only argument that Cox has made to challenge his conviction in
this direct appeal is that his plea of guilty was not knowing and voluntary.” (Doc.
#27 in Case No. 2:11-cr-295-JHH-HGD). Therefore, under the procedural default
rule, Cox is barred from raising this claim in his § 2255 motion.
That being said, however, Cox can avoid a procedural bar by establishing one
of the two exception to the procedural default rule. Under the first exception, Cox
must show cause for not raising the claim of error on direct appeal and actual
prejudice from the alleged error. Bousley v. United States, 523 U.S. 614, 622, 118
S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998); Cross v. United States, 893 F.2d 1287,
1289 (11th Cir. 1990); Greene, 880 F.2d at 1305. In the alternative, under the second
exception, the court may allow Cox to proceed with a § 2255 motion despite his
failure to show cause for procedural default if “a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Murray v.
Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986)); see also
Bousley, 523 U.S. at 622, 118 S.Ct. at 1611.
Neither exception applies in this case. As to the first exception, Cox does not
argue any cause for not raising this claim on direct appeal, nor does he argue the
existence of actual prejudice as a result. See Bousley, 523 U.S. at 622, 118 S.Ct. at
1611. As to the second exception, Cox cannot show that he is actually innocent of
the charge of felon in possession of a firearm. “To establish actual innocence, [Cox]
must demonstrate that, in light of all the evidence, ‘it is more likely that not that no
reasonable juror would have convicted him.’” Id. at 623, 118 S. Ct. 1611 (quoting
Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851, 867-68 (1995). Additionally,
“actual innocence means factual innocence, no mere legal sufficiency” and “the
Government is not limited to the existing record to rebut any showing that petitioner
might make.” Bousley, 523 U.S. at 623-24, 118 S.Ct. at 1611-12.
Here, Cox did not make a showing of actual innocence. The evidence shows
that although Cox is correct in his contention that the firearm in question was
manufactured in Alabama,2 after manufacture, it was shipped to Interarms in Virginia
for distribution and then shipped to Southern Ohio Gun Distributors in Ohio. (See
In the Rule 11 hearing, the government incorrectly represented how the particular
firearm affected interstate commerce. In particular, the government stated that the firearm “was
manufactured outside the state of Alabama.” (Doc. #23 at 12-13.) Similarly, the Plea Agreement
incorrectly states that “the firearm was not manufactured in Alabama.” (Doc. # 13 at 3 in Case
No. 2:11-cr-295-JHH-HGD). However, the Interstate Nexus Report signed by ATF Agent Keith
E. Jordan clearly establishes that the firearm did travel through interstate commerce after its
manufacture. (See Exh. 3 to Doc. # 7; see also Doc. 26 in Case No. 2:11-cr-295-JHH-HGD.)
This report establishes the nexus element of the crime. See United States v. Scott, 263 F.3d
1270, 1274 (11th Cir. 2001). Therefore, although an error was made by the Government in the
Plea Agreement and Rule 11 hearing, that error is inconsequential here because other evidence
establishes the requisite element of the crime.
Exh. 3 to Doc. # 7; see also Doc. 26 in Case No. 2:11-cr-295-JHH-HGD.) The
firearm was then shipped from Ohio to Traders Gun shop in Alabama for sale. (Id.)
This evidence clearly establishes that the firearm traveled in interstate commerce as
required by § 922(g)(1).3
In sum, Cox is procedurally barred from raising his claim in his § 2255 motion
and neither of the exceptions to the bar apply. Therefore, his motion fails.
Because good cause has not been shown why the court should not dismiss this
action, the Motion to Dismiss (Doc. # 5) is GRANTED. A separate order will be
entered dismissing this action with prejudice. The Clerk is DIRECTED to mail a
copy of this order to the Movant and the United States Attorney for the Northern
District of Alabama.
DONE this the
day of May, 2013.
SENIOR UNITED STATES DISTRICT JUDGE
This evidence also established that his claim is without merit - the fourth argument
made by the government in its Motion to Dismiss.
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