Opinion
5:11-cr-49 (MTT)
09-05-2023
UNITED STATES OF AMERICA, v. NICO JONES, Defendant.
RECOMMENDATION
Charles H. Weigle United States Magistrate Judge
Defendant Nico Jones has filed a “Motion to Redress,” in which he states, “The only relief I'm seeking is to have my plea agreement withdrawn and corrected to avoid litigation of my Actual innocence.” (Doc. 60, p. 2). Although it is not clear precisely what relief Defendant seeks in this motion, it appears to be in essence a motion to vacate, set aside, or correct his sentence, cognizable under 28 U.S.C. § 2255. This Court has no jurisdiction to hear such a motion, however, because Defendant's sentence has expired and he is no longer subject to custody on the sentence. See Diveroli v. United States, 803 F.3d 1258, 1262 (11th Cir. 2015) (under section 2255(a), a movant must be a prisoner in custody under sentence of a federal court).
On January 18, 2012, Defendant entered a plea of guilty to Count Two of the indictment, charging possession of a firearm in furtherance of a drug trafficking offense under 18 U.S.C. § 924(c)(1)(A) and § 924 (a)(2). (Docs. 27, 28). Defendant was sentenced on April 20, 2012, to a term of 24 months in prison followed by 5 years supervised release. (Docs. 35, 37). Defendant did not appeal his conviction and did not file a motion to vacate, set aside, or correct the conviction pursuant to 28 U.S.C. § 2255. On September 7, 2016, Defendant's supervised release was revoked for a term of 12 months in custody, with no further supervised release to follow. (Docs. 56, 57). Records from the Bureau of Prisons indicate that Defendant's revocation sentence expired on June 27, 2017. (Ex. 1, p. 6).
It appears that Defendant's present custody is pursuant to a sentence entered on January 28, 2022, in the District of Colorado, where Defendant was convicted of Possession with Intent to Distribute Cocaine under 21 U.S.C. § 841(a)(1) and (b)(1)(C) and Possession of a Firearm in Furtherance of a Drug Trafficking Crime under 18 U.S.C. § 924(c)(1)(A)(i) and (c)(1)(C)(i) and was sentenced to a term of 232 months in prison followed by five years of supervised release. (Ex. 2). Any motion challenging his current custody should be brought in that district in the context of that case.
To the extent that Defendant's motion can be construed as a motion for writ of coram nobis, his claim would be procedurally defaulted. Defendant appears to argue that there was not an adequate factual basis for his guilty plea to possession of a firearm in furtherance of a drug trafficking crime because his stipulation that he possessed of two grams of cocaine with the intent to distribute at a later time was not sufficient to constitute a “drug trafficking offense” under 18 U.S.C. § 924(c)(2). This argument could have been raised on direct appeal but was not, and thus is procedurally defaulted for coram nobis review. See United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002) (citing Bousley v. United States, 523 U.S. 614, 621 (1998)) (“Due regard for the finality of criminal convictions counsels special restraint in the review of collateral attacks on convictions entered pursuant to guilty pleas. Failure to appeal such convictions waives challenges based on many types of error in the proceedings which culminated in the entry of the plea.”).
Because Petitioner has failed to state a recognizable claim for relief under Section 2255 or a writ of error coram nobis, it is hereby RECOMMENDED that Petitioner's “Motion to Redress” (Doc. 60) be DENIED.
Pursuant to the requirements of Section 11(a) of the Rules Governing Section 2255 Proceedings, it does not appear that Petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Accordingly, IT IS FURTHER RECOMMENDED that the Court DENY a certificate of appealability in its final order.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.