United States District Court, N.D. Mississippi, Oxford Division
matter comes before the court on the motion of Michael Gipson
to vacate, set aside, or correct his sentence under 28 U.S.C.
§2255. The government has responded to the motion, and
the matter is ripe for resolution.
and Procedural Posture
Michael Gipson was indicted of aiding and abetting the
receipt and possession of stolen firearms (Count I), aiding
and abetting the use of a firearm in relation to a drug
trafficking crime (Count II), and two (2) counts of
possession of a firearm by a convicted felon (Counts III and
IV). ECF doc. 1. Gipson was convicted of all counts and
sentenced to a term of 125 months on Counts I, III, and IV,
to be served concurrently, and a term of 60 months on Count
II, to run consecutively with his other sentences. ECF doc.
54. In addition, Gipson was charged a special assessment of
$100.00 on each count. Id. Gipson appealed this
decision and his convictions and sentences were affirmed by
the Fifth Circuit. ECF docs. 56 and 58 (Fifth Circuit Cause
September 6, 2002, Gipson filed a motion to vacate his
sentence pursuant to 28 U.S.C.A. §2255. ECF doc. 59.
That motion was denied on April 12, 2005. ECF doc. 64. On
February 11, 2009, Gipson filed a motion for the retroactive
application of the sentencing guidelines to crack cocaine
offenses. ECF doc. 68. That motion was denied because Gipson
was already serving the mandatory minimum sentence with no
departures and was, therefore, not entitled to the relief
requested. ECF doc. 85.
7, 2012, Gipson filed a petition for writ of habeas corpus
pursuant to 28 U.S.C.A. §2241, which was docketed in
Cause No. 3:13-cv-14-GHD-SAA. ECF doc. 1 (3:13-cv-14). In
that pleading, Gipson asserted that his conviction in Count
II was invalid under the holding in Watson v. United
States, 552 U.S. 74, 84 (2007), which held that a
criminal defendant does not "use" a firearm when he
trades the gun for drugs or vice versa. ECF doc. 1
(3:13-cv-14). On March 18, 2013, this court granted
Gipson's §2241 petition, vacated his sentence in
Count II of this cause, and ordered a new sentencing hearing.
ECF doc. 28 (3:13-cv-14).
7, 2013, Gipson filed a motion for re-sentencing and waived
his presence at a resentencing hearing as both parties were
in agreement. ECF doc. 89. In addition to requesting that the
sentence in Count II be vacated, Gipson asked that his
sentences in Counts I, III, and IV be reduced to 120 months,
the statutory maximum. Id. On June 11, 2013, this
Court granted Gipson's motion for re-sentencing, vacated
his sentence in Ground Two, and re-sentenced Gipson to a
lesser term of 120 months on Counts I, III, and IV, to be
served concurrently. ECF doc. 91. All other terms of the
original sentencing order remained in effect. Id.
2, 2014, Gipson filed a motion to vacate, set aside, or
correct his new sentence pursuant to 28 U.S.C.A. §2255.
Gipson's case transferred to the Fifth Circuit for a
determination of whether Petitioner would be allowed to
proceed with a successive §2255 motion. On December 8,
2015, the Fifth Circuit held that, because Gipson was
challenging his new sentencing order, his petition was not
successive. ECF doc. 103. As such, this Court has considered
Gipson's §2255 motion on the merits.
of §2255 Review
are four grounds upon which a federal prisoner may seek to
vacate, set aside, or correct his sentence: (1) that the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) that the court was without
jurisdiction to impose the sentence; (3) that the sentence
exceeds the statutory maximum sentence; or (4) that the
sentence is "otherwise subject to collateral
attack." 28 U.S.C. § 2255; see
United States v. Cates, 952 F.2d 149, 151
(5thCir.1992). The scope of relief under
§ 2255 is the same as that of a
petition for a writ of habeas corpus. Cates, 952
F.2d at 151.
defendant seeking relief under 28 U.S.C. § 2255 may not
do so to raise issues that could have been raised on appeal.
United States v. Walling, 982 F.2d 447, 448-449
(10th Cir. 1992). A petitioner may not raise
constitutional issues for the first time on post-conviction
collateral review unless he shows cause for failing to raise
the issue on direct appeal and actual prejudice resulting
from the error. United States v. Pierce, 959 F.2d
1297, 1301 (5th Cir. 1992), cert, denied,
506 U.S. 1007 (1992); United States v. Shaid, 937
F.2d 228, 232 (5th Cir. 1991). The burden of
showing "cause, " an "objective factor
external to the defense, " rests with the petitioner.
McCleskey v. Zant, 111 S.Ct. 1454, 1470(1991). No
other types of errors may be raised on collateral review
unless the petitioner demonstrates that the error could not
have been raised on direct appeal, and if not corrected,
would result in a complete miscarriage of justice.
Pierce, 959 F.2d at 1301; Shaid, 937 F.2d
at 232. Further, if a claim is raised and considered on
direct appeal, a defendant is may not raise the issue in a
later collateral attack. Moore v. United States, 598
F.2d 439, 441 (5th Cir. 1979).
instant §2255 petition, Gipson makes the following
claims for relief, which the court has restated for clarity:
Ground One: Petitioner received ineffective assistance of
counsel during resentencing because the counsel failed to
ensure the return of Gipson's $100 special assessment on
Count II, failed to ensure that Count II was vacated, and
waived his presence at sentencing without authorization.
Ground Two: Petitioner received ineffective assistance of
counsel because counsel failed to adequately discuss a
possible appeal of ...