United States District Court, N.D. Mississippi, Aberdeen Division
MEMORANDUM OPINION AND ORDER
GLEN H. DAVIDSON, Senior District Judge.
Kenneth Busby, a federal prisoner, is proceeding pro se on a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The government has submitted a response to Busby's motion. Having considered the pleadings and the record, including the relevant parts of Busby's underlying criminal case, along with the relevant law, the Court finds that an evidentiary hearing is unnecessary, and that Busby's § 2255 motion should be denied.
Background Facts and Relevant History
On October 1, 2007, Kenneth Busby pleaded guilty to conspiracy to possess with intent to distribute more than 50 grams of methamphetamine (Count One) and possession of a firearm by a convicted felon (Count Two). Following Busby's plea, a presentence investigation report (PSR) was prepared finding that Busby was accountable for some 25, 741 grams of methamphetamine and 23 firearms. (PSR, ¶¶ 13, 17, and 18). It also revealed that on May 4, 2005, Busby was convicted of the felony crime of arson in the second degree, for which he was sentenced to a five years custody, suspended, by the Winston County Circuit Court. ( Id. at ¶¶ 45 and 46). Based on a total offense level of 41 and a criminal history category of II, Busby was found to have a guideline range of 360 months to life imprisonment. ( Id at ¶¶ 81-82). However, a Rule 11(c)(1)(C) sentencing agreement was included in his plea agreement that capped his sentence at 20 years. ( Id. at ¶ 82).
On March 25, 2008, Busby was sentenced to 240 months imprisonment on Count One and 120 months imprisonment on Count Two, and the sentences were ordered to run concurrently. No direct appeal was filed. On or about September 4, 2012, Busby filed this motion seeking to set aside his sentence, asserting that he is "not a felon and therefore not guilty of being a felon... in possession of a firearm" because he never served more than 12 months on a prior state conviction.
After a defendant has been convicted and exhausted his appeal rights, a court may presume that "he stands fairly and finally convicted." United States v. Frady , 456 U.S. 152, 164 (1982). A motion brought pursuant to § 2255 is a "means of collateral attack on a federal sentence." Cox v. Warden, Federal Detention Ctr. , 911 F.2d 1111, 1113 (5th Cir. 1990) (citation omitted). There are four separate grounds upon which a federal prisoner may move to vacate, set aside, or correct a sentence under § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255. Collateral attack limits a defendant's allegations to those of "constitutional or jurisdictional magnitude." United States v. Samuels , 59 F.3d 526, 528 (5th Cir. 1995) (citation omitted). Relief under § 2255 is reserved, therefore, for violations of "constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and, would, if condoned, result in a complete miscarriage of justice." United States v. Capua , 656 F.2d 1033, 1037 (5th Cir. 1981).
A motion filed under § 2255 must comply with the statute's one-year period of limitation, which runs from the latest of:
(1) the date on which the judgment of 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 from making a motion by such governmental action;
(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. § ...