United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK U.S. DISTRICT JUDGE
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.
and Procedural Posture
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.
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 (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.
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 motion, Lambert makes the following claims
for relief, which the court has restated for clarity:
Trial counsel was ineffective for failing to appeal
court abused its discretion in failing to award Lambert
points for accepting responsibility.
Lambert’s criminal history was improperly stated in the
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.
One: Ineffective ...