United States District Court, N.D. Mississippi, Greenville Division
matter comes before the court on the motion of James Edward
Jefferson to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255. The government has responded to the
motion; Jefferson has filed a traverse, and the matter is
ripe for resolution. For the reasons set forth below, the
instant motion to vacate, set aside, or correct sentence will
28 U.S.C. § 2255 permits an inmate serving a sentence
after conviction of a federal crime "to move the court
which imposed the sentence to vacate, set aside or correct
the sentence." 28 U.S.C. § 2255(a). As with the
writ of habeas corpus, see 28 U.S.C. §§
2241, 2254, a § 2255 motion sets forth only four bases
on which a motion may be made: (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(a). Thus, a
prisoner must claim either a constitutional violation or want
of subject matter jurisdiction to invoke 28 U.S.C. §
2255. In the absence of constitutional or jurisdictional
defects, a federal prisoner may invoke § 2255 only if
the error constitutes "a fundamental defect which
inherently results in a complete miscarriage of
justice." United States v. Addonizio, 442 U.S.
178, 185 (1979).
district court must first conduct a preliminary review of a
section 2255 motion, and "[i]f it plainly appears from
the motion, any attached exhibits, and the record of the
prior proceeding that the moving party is not entitled to
relief, the judge must dismiss the motion." Rules
Governing Section 2255 Proceedings, Rule 4(b). If the motion
raises a non-frivolous claim to relief, the court must order
the Government to file a response or to take other
appropriate action. Id. The judge may then require
the parties to expand the record as necessary and, if good
cause is shown, authorize limited discovery. Rules
Governing Section 2255 Proceedings, Rules 6-7.
reviewing the government's answer, any transcripts and
records of prior proceedings, and any supplementary materials
submitted by the parties, the court must decide whether an
evidentiary hearing is warranted. Rules Governing Section
2255 Proceedings, Rule 8. Under the statute, an
evidentiary hearing must be held unless "the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief." 28 U.S.C. §
2255(b). However, the court need not hold an evidentiary
hearing if the prisoner fails to produce "independent
indicia of the likely merit of [his] allegations."
United States v. Edwards, 442 F.3d 258, 264
(5th Cir. 2006) (quoting United States v.
Cervantes, 132 F.3d 1106, 1110 (5th Cir.
the petitioner bears the burden of establishing his claims of
error by a preponderance of the evidence. See Wright v.
United States, 624 F.2d 557, 558 (5th Cir.
1980). For certain "structural" errors, relief
follows automatically once the error is proved. See
Burgess v. Dretke, 350 F.3d 461, 472 (5th
Cir. 2003). For other errors at the trial court level, the
court may grant relief only if the error "had
substantial and injurious effect or influence" in
determining the outcome of the case. Brecht v.
Abrahmson, 507 U.S. 619, 637 (1993); see also United
States v. Chavez, 193 F.3d 375, 379 (5th Cir.
1999) (applying Brecht's harmless error standard
in a § 2255 proceeding). If the court finds that the
prisoner is entitled to relief, it "shall vacate and set
the judgment aside and shall discharge the prisoner or
resentence him or grant a new trial or correct the sentence
as may appear appropriate." 28 U.S.C. § 2255(b).
was indicted on several counts of drug and firearm crimes,
including engaging in a continuing criminal enterprise and
use of a firearm during and in relation to drug trafficking
crimes See Presentence Report at p. 4. A jury convicted
Jefferson on all counts. PSR, p. 6. After conviction
Jefferson appealed and the Fifth Circuit affirmed his
conviction. United States v. Davis, et al, 61 F.3d
291 (5th Or. 1995), cert. den. sub nom United
States v. Jefferson, 516 U.S. 1135 (1996). Jefferson
sought sentence reductions under 18 U.S.C. § 3582(c),
which the court denied. Docs. 87, 137. The court, however,
later granted Jefferson's motion  to reduce sentence
under 18 U.S.C. § 3582, Sentencing Guidelines § IB
1.10, and Amendment 782.
instant § 2255 motion , Jefferson seeks retroactive
application of the United States Supreme Court's holding
in United States v. Rosemond, 134 S.Ct. 1240 (2014).
In Rosemond, the Supreme Court held that, to
establish guilt in an aiding and abetting case under 18
U.S.C. § 924(c), which establishes enhanced penalties
for certain crimes when a firearm is used, the government
must prove that a defendant knew beforehand that the person
he aided or abetted carried the firearm. Id. at
1249. For the reasons set forth below, the instant petition
will be dismissed as untimely and denied on the merits.
Instant Petition is Untimely
Motion to Vacate under 28 U.S.C. § 2255 is not timely.
Section 28 U.S.C.A. § 2255(f) provides for a one-year
(f) A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run ...