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Lambert v. United States

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

February 6, 2018

MARTY LAMBERT MOVANT
v.
UNITED STATES OF AMERICA RESPONDENT

          MEMORANDUM OPINION

          SHARION AYCOCK U.S. DISTRICT JUDGE

         This matter comes before the court on the motion of Marty Lambert 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 Marty Lambert was charged with conspiring to possess with intent to distribute cocaine and marijuana in Count I of a three-count indictment (“Indictment”). ECF doc. 1. Lambert’s co-defendants were also charged in the indictment. Lambert pleaded guilty to Count I, and was sentenced pursuant to 21 U.S.C. §846 and 841(b)(1)(C) to 88 months with three (3) years of supervised release upon release from imprisonment. ECF doc. 244. Lambert filed a motion to reduce his sentence pursuant to 18 U.S.C. §3582(c)(2). ECF doc. 272. On June 3, 2015, this court granted Lambert’s motion and reduced his sentence from 88 months to a term of 63 months. ECF doc. 317. On January 7, 2015, Lambert filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. §2255. ECF doc. 274.

         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 (5th Cir.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).

         Lambert’s §2255 Claims

         In the instant §2255 motion, Lambert makes the following claims for relief, which the court has restated for clarity:

         1. Trial counsel was ineffective for failing to appeal Lambert’s conviction.

         2. The court abused its discretion in failing to award Lambert points for accepting responsibility.

         3. Lambert’s criminal history was improperly stated in the pre-sentence report.[1]

         4. Lambert’s base offense level should be Level 12 because of the government’s failure to allege the quantity of the drugs in the indictment.

         Ground One: Ineffective ...


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