JACKSON v. UNITED STATES OF AMERICA

Filing 8

OPINION filed. Signed by Judge Anne E. Thompson on 8/28/2017. (mps)

RECEIVED
IN THE UNITED STATES DISTRICT COURT
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FOR THE D]STRICT OF NEW JERSEY

SEP 0 5 2017
AT 8:30

WILL:-:-l~AM~T.-W--A_L_S_H_

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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
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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:
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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.

M

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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

~~

o~drlg

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")

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~

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
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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

attorn~y.

Id. 7:1-5, 11:16-20. See also

Application for Permission to Plead Guilty ("Rule 11 Form"),
Respondent Exhibit B. The

Cou~t

reviewed the rights Petitioner

waived by pleading guilty, anl the United States reviewed the

terms of the plea agreement.
The parties agreed that

f

everal sentencing enhancements

applied to Petitioner's sentence, including two four-level
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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
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waived his right to file an awpeal or collateral attack,
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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

180-mon~h

13. The United States

sentence would be reasonable.

a~so

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

t~afficking

and to possessing pit

bulls for the purpose of dog flghting. Plea Transciipt 15:11-13,

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17:14 to 18:14. The Court accepted Petitioner's guilty plea and
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determined Petitioner was knowingly and voluntarily waiving his
rights. Id. 19:11-14.
The parties appeared before the Court on May 28, 2015 for
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.

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
.

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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

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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
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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
~ele~sed ~pen the ground ~hat. the sentence was imp~sed .
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 ~orrect the sentence.
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28 U.S.C. § 2255(a). A distri1t court must hold an evidentiary
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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

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.

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erroneously applied a four-level enhancement under U.S.S.G.
2K2.l(b) (5)

§

(Ground One); thele was not sufficient evidence to
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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)

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(Grounili Three). Respondent argues the
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claims are barred by the appellate and collateral attack waiver
· ·
·
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provision in t h e p l ea agreement, t· h at p etitioner proce d.ura 11 y

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defaulted on the claims, and Petitioner has not been prejudiced
by any

allege~

errors.

A. Waiver of Collateral Attack Rights

ncriminal

d~fendanrs

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

cr~minal

case is among those rights that

may be waived." United rtates v. Mabry, 536 F.3d 231, 236 (3d
Cir. 2008), cert.

denie~,

557 U.S. 903 (2009). "[W]aivers of

appeals should be striclly construed" and nif entered into
knowingly and

.

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voluntari~y,

273 F.3d 557, 562 (3d

C~r.

are valid." United States v. Khattak,
2001). As Respondent argues the

motion should be dismissed under the waiver in the plea
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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
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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 appeal~ any collateral attack, or any other
.

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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 w~thin 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 b~nding on the
parties even if lhe Court employs a Guidelines analysis
different from that stipulated to herein. Furthermore,
if the sentenci~g 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

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15. The

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~ourt

sentenced Petitioner to 110 months,

below the Guideline rlnge of 262 months to 327 from an offense
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level of 34 and

crimi~al

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,
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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

hi~

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desire to plead guilty. See generally Plea

Transcript. See also

~ed.

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
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his ability to understand the proceedings. Id.

9:2~4.

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.

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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

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.·

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

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that trial counsel rendered ineffective assistance in
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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

A~~

5, 7. The facts agreed to by

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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
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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.

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The collateral atrack provision is binding and enforceable

against Petitioner. Tne petition shall be denied as barred by
the plea agreement.

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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

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