Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gipson v. United States

United States District Court, N.D. Mississippi, Oxford Division

September 13, 2017

MICHAEL GIPSON PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION

         This 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.

         Facts and Procedural Posture

         Petitioner 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 No. 01-60645).

         On 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.

         On May 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).

         On June 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.

         On June 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.

         Scope of §2255 Review

         There 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.

         A 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).

         Gipson's §2255 Claims

         In the 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.