Jones v. United States of America

Filing 25

ORDER denying Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody; denying relief under Johnson; denying Motions to Amend; and denying Motion for Relief from Judgment under Federal Rule of Civil Procedure 60(b). ORDER denying Certificate of Appealability and denying Leave to Appeal In Forma Pauperis. Signed by Judge Samuel H. Mays, Jr on 11/8/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JABRIL JONES,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 2:16-cv-2753-SHM-tmp
No. 2:09-cr-20389-SHM-1

ORDER

Before the Court is Movant Jabril Jones’s Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (the “§ 2255 Motion”). (§ 2255 Mot.,
ECF No. 1.)

Also before the Court are Jones’s six supplements

and amendments to his original § 2255 Motion, filed without
leave (ECF Nos. 7, 9, 18-19, 21-22); Jones’s three motions to
amend his original § 2255 Motion (ECF Nos. 12, 15-16); and
Jones’s motion for relief from judgment under Federal Rule of
Civil Procedure 60(b) (ECF No. 14).
For the following reasons, the § 2255 Motion is DENIED.
Jones’s request for relief under Johnson v. United States, 135
S.Ct. 2551 (2015), motions to amend, and motion for relief under
Rule 60(b) are also DENIED.

I.

BACKGROUND
On September 30, 2009, a grand jury returned an indictment

charging Jones with one count of knowingly possessing a firearm
after

having

been

convicted

of

a

crime

punishable

by

imprisonment for a term exceeding on year, in violation of 18
U.S.C. § 922(g).

(Indictment, Cr. ECF No. 1.)

1

The factual

basis for that charge is stated in the Presentence Investigation
Report (“PSR”):
The Offense Conduct
4.
On Friday July 3, 2009, John Novotny was walking
eastbound on Brooklyn Street in Memphis, Tennessee,
when a male armed with a chrome revolver came up from
behind him and stated "drop it off."
Novotny turned
around and observed he was being threatened at
gunpoint.
Novotny stated he did not have any money
and the male threatened to shoot him. Novotny tried to
run away and threw two liquor bottles at the male
suspect who then shot Novotny in the back and fled the
scene. Novotny was transported to the MED in critical
condition. Upon further investigation, Jabril Sidney
Jones was developed as a suspect.
Investigating
officers went to 1227 Garfield and made contact with
Geneva Smith who was Jones' girlfriend. Smith advised
that Jones was hiding in the rear of the home, but
upon searching, officers were unable to locate Jones
who had fled out the back door.
Upon questioning,
Geneva Smith reported that Jabril Jones came home and
stated "I fucked up, I fucked up."
Jones told her
that he tried to rob a man and ended up shooting him
because he had a bottle and attempted to throw it at
him.
Smith indicated that she knew Jones to have a
.40 caliber and a revolver.
She reported that Jones
had indicated he was going to attempt to retrieve or

1

Citations to (Cr. ECF No. ##) refer to the criminal case United States
v. Jones, No. 2:09-cr-20389-SHM-tmp (W.D. Tenn.). Citations to (ECF No. ##)
refer to the civil case Jones v. United States, No. 2:16-cv-2753-SHM-tmp
(W.D. Tenn.).

2

destroy the video from a convenience store where he
first observed the victim with money.
5. On Saturday, July 4, 2009, John Novotny positively
identified Jabril Sidney Jones from a photo lineup as
the person responsible for the shooting.
Police
officers returned to 1227 Garfield to locate Jones.
Officers
made
contact
with
Geneva
Smith,
and
discovered that Jabril Jones was hiding in the attic.
After several minutes of talking with Jones, officers
finally convinced him to come down from the attic and
he was taken into custody without incident.
After
taking Jones into custody, officers searched the
residence and found a silver/chrome Smith and Wesson
.38 caliber revolver and 27 .38 caliber rounds of
ammunition hidden in the lining of the couch. Geneva
Smith told officers that the .38 caliber revolver
belonged to Jones who had put it in the couch.
6. A federal agent subsequently examined the Smith and
Wesson .38 caliber revolver (serial #58084) which was
recovered from the couch at 1227 Garfield on July 4,
2010. The agent determined that the revolver had not
been manufactured in the State of Tennessee.
It was
further confirmed that Jabril Jones had a conviction
for a felony prior to July 3, 2000.
(PSR ¶¶ 4-6.)
On September 15, 2010, a jury convicted Jones of violating
18 U.S.C. § 922(g).

(Cr. ECF No. 34.)

At sentencing, the Court

determined that Jones’s base offense level was 37 and his
criminal history category was IV.

(See PSR ¶ 60.)

Jones was

sentenced to the statutory maximum of 120 months in prison
followed by three years of supervised release.

(Judgment, Cr.

ECF No. 46.)
On April 22, 2016, Jones filed a notice of appeal.
ECF No. 63.)

(Cr.

On April 28, 2016, the Court of Appeals for the

3

Sixth Circuit dismissed Jones’s appeal as untimely.

(Cr. ECF

No. 64 at 111.)
On September 19, 2016, Jones filed this § 2255 Motion.
(ECF No. 1.) Jones filed supplements without leave on October
11, 2016 (ECF No. 7) and November 4, 2016 (ECF No. 9).
On November 7, 2016, the Court directed the Government to
respond to Jones’s § 2255 Motion.

(ECF No. 10.)

filed its response on November 9, 2016.

The Government

(ECF No. 11.)

On November 14, 2016, Jones filed a motion to amend.
No. 12.)

(ECF

On November 21, 2016, Jones filed a motion for relief

from judgment under Federal Rule of Civil Procedure 60(b).

(ECF

No. 14.)

The same day, Jones filed a notice of amendment.

(ECF

No. 15.)

On November 28, 2017, Jones filed a second notice of

amendment.

(ECF No. 16.)

The Court construes Jones’s notices

of amendment as motions to amend.
On December 7, 2016, Jones filed a reply to the
Government’s response to his § 2255 Motion.

(ECF No. 17.)

Jones filed two affidavits: one on April 24, 2017 and the
other on April 26, 2017.

(ECF Nos. 18-19.)

He filed

supplemental arguments on May 16, 2017 (ECF No. 21), and on May
18, 2016 (ECF No. 22).

4

II.

LEGAL STANDARDS
A.

Section 2255 Motion

Jones seeks relief under 28 U.S.C. § 2255.

(§ 2255 Mot.)

Under § 2255(a),
[a] prisoner in custody under sentence of a
court
established
by
Act
of
Congress
claiming the right to be released upon the
ground that the sentence was imposed in
violation of the Constitution or laws of the
United States . . . or that the sentence was
in excess of the maximum authorized by
law . . . may move the court which imposed
the sentence to vacate, set aside or correct
the sentence.
28 U.S.C. § 2255(a).
“To succeed on a § 2255 motion, a prisoner in custody must
show ‘(1) an error of constitutional magnitude; (2) a sentence
imposed outside the statutory limits; or (3) an error of fact or
law that was so fundamental as to render the entire proceeding
invalid.’”

McPhearson v. United States, 675 F.3d 553, 558–59

(6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491,
496–97 (6th Cir. 2003)).
A prisoner must file his § 2255 motion within one year of
the latest of:
(1)

the date on which the
conviction becomes final;

(2)

the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution
or
laws
of
the
United
States
is
removed, if the movant was prevented
5

judgment

of

from
making
a
motion
governmental action;

by

such

(3)

the date on which the right asserted
was initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and
made retroactively applicable to cases
on collateral review; or

(4)

the date on which the facts supporting
the claim or claims presented could
have
been
discovered
through
the
exercise of due diligence.

28 U.S.C. § 2255(f).
After a petitioner files a § 2255 motion, the court reviews
it and, “[i]f it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the
motion . . . .”

Rules Governing Section 2255 Proceedings for

the U.S. District Courts (“§ 2255 Rules”) at Rule 4(b).

“If the

motion is not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within a
fixed time, or to take other action the judge may order.”

Id.

The § 2255 movant is entitled to reply to the government’s
response.

Id. at Rule 5(d).

Where the court considering the

§ 2255 motion also handled the earlier proceedings at issue
(e.g., the change of plea and the sentencing hearing), the court
may rely on its recollection of the proceedings.

See, e.g.,

James v. United States, No. 3:13-01191, 2017 WL 57825, at *1

6

(M.D. Tenn. Jan. 4, 2017) (quoting Arredondo v. United States,
178 F.3d 778, 782 (6th Cir. 1999)).
B.

ACCA’s “Violent-Felony” Framework

Jones challenges the application of the sentencing
guidelines.

He cites Johnson v. United States, where the

Supreme Court held that a sentence imposed under the residual
clause of the Armed Criminal Career Act (“ACCA”) violates due
process.

135 S. Ct. at 2563.

In Welch v. United States, the

Supreme Court applied its holding in Johnson retroactively to
ACCA cases on collateral review.

136 S. Ct. 1257, 1268 (2016);

see also In re Watkins, 810 F.3d 375, 383–84 (6th Cir. 2015)
(same).
Under the ACCA, a defendant convicted under 18 U.S.C.
§ 922(g) who has three prior convictions for violent felonies or
serious drug offenses is subject to a mandatory minimum sentence
of 180 months in prison.

18 U.S.C. § 924(e)(1).

Without the

prior qualifying convictions, a defendant convicted under
§ 922(g) is subject to a statutory maximum sentence of 120
months.

Id. § 924(a)(2).

III. ANALYSIS
A.

Timeliness

A § 2255 motion and any amendments to it must be filed
within the one-year statute of limitations established by
§ 2255(f).

See, e.g., Berry v. United States, No. 2:14-CV-

7

02070-STA-CGC, 2017 WL 401269, at *10 (W.D. Tenn. Jan. 30,
2017).

Under § 2255(f)(1), the motion must be filed within one

year of “the date on which the judgment of conviction becomes
final.”

A conviction becomes final on conclusion of direct

review.

Sanchez-Castellano v. United States, 358 F.3d 424, 426

(6th Cir. 2004).

If the defendant takes a timely direct appeal

to the court of appeals, the judgment of conviction becomes
final after the ninety-day period to file a petition for writ of
certiorari expires.

Id.

If the petitioner does not appeal or

fails to take a timely appeal, “the judgment becomes final upon
the expiration of the period in which the defendant could have
appealed to the court of appeals[.]”

Id.

Under § 2255(f)(3), a

petitioner alternatively may bring a § 2255 motion within one
year of “the date on which the right asserted was initially
recognized by the Supreme Court . . . .”

The § 2255(f) statute

of limitations is not jurisdictional, and the Government can
waive it.

See, e.g., Pittman v. United States, No. 3:10-CR-

1542-TAV-HBG, 2016 WL 3129198, at *2 (E.D. Tenn. June 2, 2016);
United States v. Miller, No. 6:13-7324-DCR, 2014 WL 4693689, at
*6 (E.D. Ky. Aug. 28, 2014).
A judgment was entered against Jones on February 4, 2011.
(Cr. ECF No. 49.)

Jones failed to file a timely, direct appeal.

His conviction became final on February 18, 2012.

8

He filed his

§ 2255 motion on September 19, 2016, more than four-and-a-half
years after finality.

Jones’s § 2255 Motion is untimely. 2

Johnson was decided on June 26, 2015.

Jones’s request for

Johnson relief was filed more than a year later, on September
19, 2016.

Jones’s Johnson claim is untimely.

The Government failed to raise § 2255(f) in its response.
(See ECF No. 10.)

The statute of limitations defense to Jones’s

§ 2255 Motion is waived.
B.

Motions to Amend

Jones has filed six supplements/amendments to his original
§ 2255 Motion without leave.

(See ECF Nos. 7, 9, 18-19, 21-22.)

He has filed three motions to amend his original § 2255 Motion.
(See ECF Nos. 12, 15-16.)
Claims not brought in Jones’s original § 2255 Motion are
barred unless the claims asserted “relate back” under Rule
15(c)(1)(B) of the Federal Rules of Civil Procedure to a claim
raised in the original motion.

See Evans v. United States, 284

F. App’x. 304, 305, 313 (6th Cir. 2008); cf. Cowan v. Stovall,
645 F.3d 815, 819 (6th Cir. 2011).

2

Even if Jones could take advantage of his untimely-filed direct
appeal, the Sixth Circuit dismissed that appeal on June 7, 2016. Jones would
have had until September 5, 2016, to file a § 2255 Motion. He filed his
§ 2255 Motion two weeks later, on September 19, 2016.

9

Jones’s § 2255 Motion asserts four grounds for relief.
First, Jones contends he is entitled to relief in light of
Johnson.

Second, Jones argues that the Court misapplied the

sentencing guidelines because the issue of attempted murder was
not properly presented to the jury at trial.

Third, Jones

argues that his counsel was ineffective for failing to object to
the prosecutor’s alleged misstatement of the facts and to the
PSR.

Fourth, Jones contends that his rights under the Fifth and

Eighth Amendments have been violated because his sentence was
miscalculated.
To the extent Jones’s amendments attempt to assert new
claims, such as prosecutorial misconduct, separate instances of
ineffective assistance of counsel, Fourth Amendment challenges,
and fraud on the court, they are time-barred.
9, 18-19, 21-22.)

(See ECF Nos. 7,

Jones’s motions to amend (ECF Nos. 12, 15-16,

18-22) are DENIED as futile. 3
C.

Application of Johnson

Jones is not entitled to relief in light of Johnson.
Jones was not determined to be an Armed Career Criminal under
the ACCA at sentencing.

(See generally PSR.)

Johnson does not

assist him.

3

To the extent Jones has made additional claims not addressed by this
Order, those claims are not identifiable or are incoherent.

10

D.

Application of the Sentencing Guidelines

Jones argues that the calculation of his base offense level
was improper because the issue of attempted murder was not
properly presented to the jury.

(See ECF No. 1 at 2.)

Jones

contends that, had he “not been found guilty of an attempted
murder[,] [he] would have been subject to a sentence of 27 to 33
months far below the 120 month statutory maximum sentence [he]
received.”

(Id.)

Jones argues that “attempted murder is not

groupable with [a] firearm offense.”

(Id. at 1.)

Jones was not charged with attempted murder.

He was

charged with and found guilty of violating 18 U.S.C. § 922(g).
Because the Indictment had only one count, the Court did not
refer to § 3D1.2, which applies when grouping closely related
counts.

U.S. SENTENCING GUIDELINES MANUAL § 3D1.2 (2010).

To calculate Jones’s base level offense, the Court applied
Sentencing Guideline § 2K2.1, which governs convictions for
felons in possession of firearms.

Section 2K2.1 provides that,

“[i]f the defendant used or possessed any firearm or ammunition
in connection with the commission or attempted commission of
another offense . . . apply . . . § 2X1.1 (Attempt,
Solicitation, or Conspiracy) . . . .”

U.S. SENTENCING

GUIDELINES MANUAL § 2K2.1(c)(1)(A) (2010).

“Another felony

offense” is “any federal, state, or local offense, other than

11

the explosive or firearms possession or trafficking offense,
punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a
conviction obtained.”

Id. § 2K2.1 app. Note 14.

“The

guidelines require courts to consider ‘relevant conduct’ in
calculating a defendant's base offense level, see U.S.S.G. §
1B1.3(a). . . .”

United States v. Alsante, 812 F.3d 544, 550

(6th Cir. 2016) (citing United States v. Miller, 910 F.2d 1321,
1326–27 (6th Cir. 1990)).
that have not been charged.

That conduct includes criminal acts
Id.

Courts determine relevant

conduct under a preponderance of the evidence standard.

See

United States v. Benjamin, 138 F.3d 1069, 1072 (6th Cir. 1998)
(“When a sentencing court includes relevant conduct in its
calculation of the base offense level, the conduct must be
supported by a preponderance of the evidence”); see also United
States v. Shannon, 803 F.3d 778, 788 (6th Cir. 2015)
(“[S]entencing judges may engage in judicial fact-finding and
consider evidence under a preponderance of the evidence
standard”).
After cross referencing § 2K2.1, the Court applied § 2X1.1,
which instructs that, “[w]hen an attempt, solicitation, or
conspiracy is expressly covered by another offense guideline

12

section, apply that guideline section.”

U.S. SENTENCING

GUIDELINES MANUAL § 2X1.1(c)(1) (2010).
The Court found by a preponderance of the evidence that
Jones had attempted to murder John Novotny.

Jones did not

object to the description of the offense in the PSR.

He tried

to rob John Novotny and shot Novotny when Novotny tried to run.
(See PSR ¶ 4.)
Jones engaged in conduct that, if successful, would have
constituted first degree murder as defined in 18 U.S.C. § 1111.
Under § 1111, a killing is murder in the first degree if, among
other things, the killing is “willful, deliberate, malicious,
and premeditated” or “perpetrated from a premeditated design
unlawfully and maliciously to effect the death of any human
being other than him who is killed.”

The record establishes

that Jones deliberately shot Novotny while trying to rob Novotny
“because [Novotny] had a bottle and attempted to throw it at
[Jones].”

(PSR ¶ 4.)

That evidence is sufficient to prove a

willful, deliberate, malicious, and premeditated attempt to
murder.

(Sentencing Tr. at Page 11:10-13; Page 12:21-23.)

The

Court relied on § 2X1.1(c)(1) and found that Jones’s conduct
constituted attempted murder under § 2A2.1.
Under § 2A2.1, the base offense level for Jones’s relevant
conduct offense, attempted murder, was 33.
13

U.S. SENTENCING

GUIDELINES MANUAL § 2A2.1(a)(2) (2010).

Because “the victim

sustained permanent or life-threatening bodily injury,” Jones’s
base offense level was increased by 4 levels to 37.

Id.

§ 2A2.1(b)(1)(A).
Jones had nine criminal history points, placing him in
criminal history category IV. 4
18.)

(Sentencing Tr. at Page 14:17-

The advisory guideline range for a defendant with a base

offense level of 37 and a criminal history category IV is 292365 months in prison.

U.S. SENTENCING GUIDELINES MANUAL,

Sentencing Table (2010).
Under § 5G1.1, if “the statutorily authorized maximum
sentence is less than the minimum of the applicable guideline
range, the statutorily authorized maximum sentence shall be the
guideline sentence.”
§ 5G1.1(a) (2010).

U.S. SENTENCING GUIDELINES MANUAL
The statutory maximum for a violation of 18

U.S.C. § 922(g) is 120 months in prison.

Jones received a

guideline sentence, the statutory maximum of 120 months.
When the sentence imposed does not exceed the statutory
maximum, enhancements imposed under the Sentencing Guidelines
need not be found by a jury beyond a reasonable doubt.

United

States v. Phillips, 516 F.3d 479, 486 (6th Cir. 2008).

Because

4

Jones does not challenge his criminal history category or criminal
history points.

14

Jones ultimately received a sentence at the applicable statutory
maximum, his enhancement based on his relevant conduct,
attempted murder, need not have been presented to the jury.

The

Court’s finding by a preponderance of the evidence that the
relevant conduct constituted attempted murder was sufficient.
The Court correctly calculated Jones’s base offense level and
limited Jones’s sentence to the statutory maximum.
Jones is not entitled to habeas relief on his claim for
misapplication of the Sentencing Guidelines in calculating his
base offense level or sentence duration.
E.

Ineffective Assistance of Counsel

Jones argues his trial lawyer was ineffective for failing
to object to the prosecutor’s representation of the facts to the
jury and to the PSR.

(ECF No. 1 at 2.) Jones argues that,

“during Trial[,] [his] lawyer never objected to the
prosecutor[’]s misrepresentation of facts to the jury and in
[Jones’s] (P.S.[R].).”

(Id. at 2.)

Jones offers no facts to support his ineffective assistance
of counsel claim.

He fails to satisfy Rule 2 of the Rules

Governing § 2255 Proceedings, which requires a motion to
“specify all grounds for relief available to the moving party”
and “state the facts supporting each ground.”
2255 Proceedings 2(b)(1)–(2).

R. Governing §

A § 2255 motion that fails to
15

state the supporting facts is legally insufficient on its face
and may be dismissed.
(1994).

McFarland v. Scott, 512 U.S. 849, 856

Jones does not specify what facts the prosecutor

misrepresented or what portion of the PSR merited objection.
His undeveloped, conclusory, and speculative statement is
unsupported by citations to the law or the facts.

The Court

cannot evaluate a claim that consists of a single conclusory
sentence.
Jones cites no facts or law to support his claim of
ineffective assistance of counsel.
insufficient.
F.

That claim is legally

Jones is not entitled to relief on it.

Fifth and Eighth Amendments

Jones “also argues a Fifth and Eighth Amendment violation
for cruel and unusual punishment and excessive punishment.”
(ECF No. 1 at 2.)
Jones offers no facts to support his claim for Fifth and
Eighth Amendment violations.

He fails to satisfy Rule 2 of the

Rules Governing § 2255 Proceedings.
Jones’s assertion of Fifth and Eighth Amendment violations
is based on the Court’s determination that his relevant conduct
constituted attempted murder under the Sentencing Guidelines.

16

That assertion is foreclosed for the reasons stated above.
Jones was properly sentenced under the guidelines.
Jones is not entitled to habeas relief on his claim for
Fifth or Eighth Amendment violations.
G.

Rule 60(b)

Jones has filed a motion for relief from judgment under
Federal Rule of Civil Procedure 60(b).

He argues that his base

offense level violated Apprendi v. New Jersey, 530 U.S. 466
(2000), that he was improperly and overly punished, that he was
wrongfully convicted, that the prosecutor engaged in misconduct,
that his trial counsel was ineffective for failing to object to
inconsistent witness testimony, and that he is actually innocent
of his 18 U.S.C. § 922(g) conviction.

(See ECF No. 14.)

Rule 60(b) does not provide relief from a judgment in a
criminal case.

The Sixth Circuit and other courts have

uniformly held that “Fed. R. Civ. P. 60(b) does not apply in
criminal proceedings.”

United States v. Bender, No. 03–3881, 96

F. App'x 344, 345 (6th Cir. Apr. 26, 2004); see also United
States v. Diaz, No. 00–1876, 79 F. App'x 151, 152 (6th Cir. Oct.
24, 2003); United States v. Charles, No. 01–5806, 37 F. App'x
758 (6th Cir. June 17, 2002); United States v. Fair, 326 F.3d
1317, 1318 (11th Cir. 2003); United States v. Pope, No. 03–1523,

17

124 F. App'x 680, 682 (2d Cir. Mar. 2, 2005); Bixler v. Harry,
No. 09–11071, 2009 WL 1107699, at *2 (E.D. Mich. Apr.23, 2009).
“Rule 60(b) is not a substitute for a motion to vacate
under § 2255.”

United States v. Cadena, 230 F.3d 1360, 1360

(6th Cir. 2000) (Table) (citations omitted).

To the extent

Jones's Rule 60(b) Motion brings claims different from those in
his § 2255 Motion, his Rule 60(b) claims constitute a second or
successive § 2255 motion, for which he must first obtain
authorization from the Sixth Circuit.

See In re Nailor, 487

F.3d 1018, 1023 (6th Cir. 2007); see also Cadena, 230 F.3d at
1360.

To the extent Jones’s Rule 60(b) Motion brings the same

claims as his § 2255 Motion, Rule 60(b) is not an appropriate
vehicle and Jones is not entitled to relief on his Rule 60(b)
claims for the reasons stated above.

Jones’s Rule 60(b) motion

is DENIED.
IV.

APPEALABILITY
Twenty-eight U.S.C. § 2253(a) requires a district court to

evaluate the appealability of its decision denying a § 2255
motion and to issue a certificate of appealability (“COA”) “only
if the applicant has made a substantial showing of the denial of
a constitutional right.”
R. App. P. 22(b).

28 U.S.C. § 2253(c)(2); see also Fed.

No § 2255 movant may appeal without this

certificate.
18

The COA must indicate the specific issue or issues that
satisfy the required showing.

28 U.S.C. §§ 2253(c)(2) & (3).

A

“substantial showing” is made when the movant demonstrates that
“reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to
deserve encouragement to proceed further.”

Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and
citation omitted); see also Henley v. Bell, 308 F. App’x 989,
990 (6th Cir. 2009) (per curiam).

A COA does not require a

showing that the appeal will succeed.

Miller-El, 537 U.S. at

337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir.
2011).

Courts should not issue a COA as a matter of course.

Bradley v. Birkett, 156 F. App’x 771, 773 (6th Cir. 2005).
Jones is not entitled to relief under Johnson; for
misapplication of the sentencing guidelines; for ineffective
assistance of counsel; under the Fifth or Eight Amendment; or
under Rule 60(b).

He cannot present a question of some

substance about which reasonable jurists could differ.

The

Court DENIES a certificate of appealability.
The Sixth Circuit has held that the Prison Litigation
Reform Act of 1995, 28 U.S.C. §§ 1915(a)-(b), does not apply to
appeals of orders denying § 2255 motions.

19

Kincade v. Sparkman,

117 F.3d 949, 951 (6th Cir. 1997).

Rather, to appeal in forma

pauperis in a § 2255 case, and thereby avoid the appellate
filing fee required by 28 U.S.C. §§ 1913 and 1917, a prisoner
must obtain pauper status pursuant to Federal Rule of Appellate
Procedure 24(a).

Kincade, 117 F.3d at 952.

Rule 24(a) provides

that a party seeking pauper status on appeal must first file a
motion in the district court, along with a supporting affidavit.
Fed. R. App. P. 24(a)(1).

However, Rule 24(a) also provides

that if the district court certifies that an appeal would not be
taken in good faith, or otherwise denies leave to appeal in
forma pauperis, a prisoner must file his motion to proceed in
forma pauperis in the appellate court.

See Fed. R. App. P.

24(a) (4)-(5).
Because Jones is clearly not entitled to relief, the Court
denies a certificate of appealability.

It is CERTIFIED,

pursuant to Federal Rule of Appellate Procedure 24(a), that any
appeal in this matter would not be taken in good faith.

Leave

to appeal in forma pauperis is DENIED. 5

5

If Jones files a notice of appeal, he must also pay the appellate
filing fee or file a motion to proceed in forma pauperis and supporting
affidavit in the Sixth Circuit Court of Appeals within 30 days.

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V. CONCLUSION
For the foregoing reasons, the § 2255 Motion is DENIED.
Jones’s request for relief under Johnson, motions to amend, and
motion for relief under Rule 60(b) are also DENIED.

So ordered this 8th day of November, 2017.

/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT COURT JUDGE

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