Jones v. USA
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 9 MAGISTRATE JUDGES REPORT AND RECOMMENDATION, DENYING PETITIONERS MOTION AND DISMISSING CIVIL ACTION. Petitioner's 1 Motion to vacate is DENIED. It is ORDERED that this civil action be DIS MISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 12/4/2015. (copy to Pro se Petitioner via certified mail, counsel of record via CM/ECF)(jmm) (Main Document 11 replaced on 12/4/2015 due to incorrect docket entry number in order NEF regenerated) (jmm). (Additional attachment(s) added on 12/4/2015: # 1 Certified Mail Return Receipt) (jmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KOFIE AKIEM JONES,
UNITED STATES OF AMERICA,
Civil Action No. 1:13CV267
(Criminal Action No. 1:03CR47-01)
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
DENYING PETITIONER’S MOTION
AND DISMISSING CIVIL ACTION
The issue in this case is whether a motion filed under 28
U.S.C. § 2255 collaterally attacking the underlying conviction is
“second or successive” when it was filed after the petitioner was
The petitioner, Kofie Akiem Jones (“Jones”), filed
This matter was referred to United States Magistrate
Judge Robert W. Trumble under Local Rule of Civil Procedure 72.01.
The magistrate judge issued a report recommending that this Court
deny the motion as second or successive.
Jones did not file
objections to the report and recommendation.
For the following
recommendation, denies the motion, and dismisses this civil action.
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
Jones was convicted of conspiracy to rob banks, attempted bank
robbery, armed bank robbery, two counts of possession of a firearm
in furtherance of a violent crime in violation of 18 U.S.C.
§ 924(c), and interference with commerce by threats of violence.
This Court sentenced Jones to six concurrent life sentences as a
three-strikes offender under 18 U.S.C. § 3559(c)(1).
Jones filed his first motion under 28 U.S.C. § 2255, alleging
ineffective assistance of counsel. Specifically, Jones argued that
witness; (2) failed to investigate Jones’s alibi defense; (3)
fingerprint expert; and (5) failed to move for a mistrial after the
a juror saw Jones in shackles during trial.
After an evidentiary
hearing, this Court denied the motion and found that Jones failed
to demonstrate ineffective assistance of counsel.
In 2011, one of Jones’s predicate “three strikes” convictions
He filed a second § 2255 motion seeking resentencing
under 18 U.S.C. § 3559(c)(7), which requires a court to resentence
a three-strikes offender when one of his predicate offenses is
Jones then filed a third § 2255 motion seeking
resentencing under § 3559(c)(7).
This Court granted the motion
and resentenced Jones to 535 months imprisonment and five years of
Jones filed this fourth motion to vacate under § 2255.
alleges three grounds for vacating his conviction and sentence: (1)
ineffective assistance of counsel; (2) that he was convicted of a
second violation of § 924(c) without being specifically charged
with a “second” violation and without a jury finding a “second”
violation; and (3) that his due process rights were violated
because the jury instructions were incorrect.
Jones argues that
his motion is not second or successive because, under Magwood v.
Patterson, 561 U.S. 320 (2010), it constitutes a new judgment
intervening between his § 2255 motions. Jones also argues that his
petition is not successive because Rosemond v. United States, 134
S. Ct. 1240 (2014), created a new rule that invalidates his
§ 924(c) convictions. Magistrate Judge Trumble recommended denying
the motion as second or successive.
Jones did not file objections
to the report and recommendation.
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made. Because the petitioner filed no
objections to the report and recommendation, the magistrate judge’s
“clearly erroneous or contrary to law.”
28 U.S.C. § 636(b)(1)(A).
Generally, a § 2255 motion is second or successive if the
petitioner has already filed such a motion and it was dismissed on
Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002).
petitioner cannot file a second or successive § 2255 motion unless
it is certified by a panel of the appropriate court of appeals and
(1) newly discovered evidence that, if proven and viewed
in light of the evidence as a whole, would be sufficient
to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty
of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that
was previously unavailable.
28 U.S.C. § 2255(h).
Jones does not dispute that he previously filed a § 2255
motion attacking the validity of his conviction or that he failed
to seek certification from the United States Court of Appeals for
the Fourth Circuit to file this motion.
However, Jones argues
that, under Magwood v. Patterson, 561 U.S. 320 (2010), his motion
is not second or successive because his resentencing constitutes a
new judgment intervening between his first motion and this motion.
Thus, the issue is whether this Court’s resentencing of Jones
constituted a new, intervening judgment. This is an issue of first
impression in the Fourth Circuit.
In Magwood, the petitioner filed his second motion under 28
U.S.C. § 2254 challenging the validity of his sentence imposed by
a state court at resentencing.
The Supreme Court held that “where
. . . there is a new judgment intervening between two habeas
petitions, an application challenging the resulting new judgment is
not second or successive at all.” Id. at 341-42 (citation omitted)
(internal quotation marks omitted).
The Court concluded that the
petitioner’s new sentence after resentencing constituted a new
judgment, and therefore was not second or successive.
Id. at 323-
challenging only the validity of his new sentence and not the
validity of his underlying conviction, and therefore the Court did
not consider whether a second motion challenging the underlying
conviction would be barred.
Id. at 342.2
Circuit Courts are split on whether resentencing constitutes
attacks his underlying conviction.
The Seventh Circuit relied on
its pre-Magwood precedent to hold that a second § 2255 motion,
filed after resentencing, that challenges the validity of the
underlying conviction is a second or successive motion.
The Court did note, without comment, in a footnote that
several Courts of Appeals had held that a successive motion
challenging the underlying conviction after resentencing were
barred as successive.
Id. at 342 n.16 (citing Lang v. United
States, 474 F.3d 348, 351 (6th Cir. 2007); Walker v. Roth, 133 F.3d
454, 455 (7th Cir. 1997); Esposito v. United States, 135 F.3d 111,
113-14 (2d Cir. 1997)).
United States, 705 F.3d 279, 284 (7th Cir. 2013).
Circuit came to the opposite conclusion based on its pre-Magwood
Insignares v. Sec’y, Fla. Dep’t of Corrections, 755
F.3d 1273, 1281 (11th Cir. 2014).
The court concluded that the
judgment of conviction and the sentence were not severable because
“there is only one judgment, and it is comprised of both the
sentence and the conviction.”
It concluded, therefore, that
a second § 2255 motion challenging the validity of the underlying
conviction after resentencing was not second or successive because
it challenged a new, intervening judgment.
Circuits are split as to whether a petition filed after one count
of a multi-count conviction is vacated is second or successive when
it collaterally attacks unamended portions of the judgment.
Second and Ninth Circuits have held that such petitions are not
second or successive, Wentzell v. Neven, 674 F.3d 1124, 1127 (9th
Cir. 2012); Johnson v. United States, 623 F.3d 41, 46 (2d Cir.
2010), while the Fifth Circuit held that such petitions are barred
In re Lampton, 667 F.3d 585, 589-90 (5th Cir.
The Fourth Circuit has yet to weigh in on this issue.
However, the court’s pre-Magwood precedent indicates that a second
§ 2255 motion filed after resentencing that attacks the underlying
conviction is second or successive.
See In re Taylor, 171 F.3d
185, 187-88 (4th Cir. 1999) (holding that the motion was not second
or successive “because [the petitioner] expressly [sought] to raise
only those issues that originated at the time of his resentencing
after his first § 2255 petition”).
The text of § 2255 and 18 U.S.C. § 3582 support drawing a
distinction between second motions filed after resentencing that
attack the new sentence and those that attack the underlying
Section 2255 speaks in terms of a petitioner’s
“sentence,” 18 U.S.C. § 2255(a), and § 3582 draws a distinction
between a judgment of conviction and a sentence.
It provides that
“[n]otwithstanding the fact that a sentence to imprisonment can
subsequently be . . . modified . . . a judgment of conviction that
includes such a sentence constitutes a final judgment for all other
18 U.S.C. § 3582(b) (emphasis added).
modification of a sentence does not affect the finality of a
judgment of conviction, unless a successful collateral attack on
Jones’s sentence was not modified based on a successful
collateral attack on his underlying conviction. Rather, this Court
modified Jones’s sentence under 18 U.S.C. § 3559(c)(7), which
requires a court to resentence a defendant that was sentenced as a
Therefore, Jones’s judgment of conviction
still constitutes a final judgment for the purposes of his § 2255
Jones failed to seek certification from the Fourth Circuit to
file this second or successive § 2255 motion.
Moreover, he fails
to meet § 2255(h)’s gatekeeping requirements because his motion
does not assert any newly discovered evidence or a new rule of
While he does assert that his convictions
under 18 U.S.C. § 924(c) are invalid under the Supreme Court’s
decision in Rosemond v. United States, 134 S. Ct. 1240 (2014), that
decision was one of statutory interpretation and not one of
constitutional law. See id. at 1245 (interpreting 18 U.S.C. § 2 as
applied to § 924(c)).
Therefore, this Court lacks jurisdiction to
consider Jones’s motion and finds no error in the magistrate
For the reasons set forth above, this Court lacks jurisdiction
to consider Jones’s second or successive § 2255 motion. Therefore,
the magistrate judge’s report and recommendation (ECF Nos. 9/323)
is AFFIRMED AND ADOPTED.
Accordingly, Jones’s motion (ECF Nos.
1/308, 315, 318, 320) is DENIED.
It is ORDERED that this civil action be DISMISSED WITH
PREJUDICE and STRICKEN from the active docket of this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the petitioner has failed to
object, he has waived his right to seek appellate review of this
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se petitioner by certified mail and to
counsel of record herein.
Under Federal Rule of Civil Procedure
58, the Clerk is DIRECTED to enter judgment on this matter.
December 4, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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