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Jackson v. United States

United States District Court, D. New Jersey

September 5, 2017


          Kevine Jackson, Petitioner pro se.

          R. Joseph Gribko, AUSA United States Attorney's Office Attorney for Respondent United States of America




         Kevine Jackson ("Petitioner") moves to vacate, correct, or set aside his federal sentence pursuant to 28 U.S.C. § 2255. Amended Motion, Docket Entry 5. Respondent United States of America opposes the motion- Answer, Docket Entry 7. For the reasons stated herein, Petitioner's motion is denied, and no certificate of appealability will issue.


         On August 1, 2013, Petitioner was charged via complaint with possessing a firearm and ammunition after being convicted of a crime punishable by more than one year. 18 U.S.C. § 922(g)(1). The FBI searched Petitioner's home on August 9, 2013 and discovered evidence of drug trafficking and dog fighting. Answer ¶¶ 24-25.

         Petitioner and the United States entered into a plea agreement in which Petitioner agreed to plead guilty to an information charging him with one count of unlawful possession of a firearm, 18 U.S.C. § 922(g)(1), and one count of possession of an animal for the purpose of engaging in an animal fighting venture, 7 U.S.C. § 215 6(b). Plea Agreement, Respondent Exhibit A. The United States agreed not to prosecute Petitioner for certain other firearms and controlled substances offenses in exchange for Petitioner's guilty plea. Id. at 1. Petitioner also agreed to waive certain appellate and collateral attack rights. Plea Agreement Schedule A ("Schedule A") ¶ 15.

         The Court conducted a hearing pursuant to Federal Rule of Criminal Procedure 11 on September 29, 2014..Plea Transcript, Respondent Exhibit C. Petitioner confirmed he wanted to waive his right to have a grand jury return an indictment and that no one had threatened him or promised him anything that was not in the plea agreement in order to get him to plead guilty. Id. 5:6- 25. He further confirmed he signed the Rule 11 form after reviewing it with his attorney. Id. 7:1-5, 11:16-20. See also Application for Permission to Plead Guilty ("Rule 11 Form"), Respondent Exhibit B. The Court reviewed the rights Petitioner waived by pleading guilty, and the United States reviewed the terms of the plea agreement.

         The parties agreed that several sentencing enhancements applied to Petitioner's sentence, including two four-level enhancements under U.S.S.G. §§ 2K2.1(b)(5) and 2K2.1(b)(6)(B). Schedule A ¶¶ 5, 7. The agreement also set forth that Petitioner waived his right to file an appeal or collateral attack, including a motion pursuant to 28 U.S.C. § 2255, that "challenge[d] the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from offense level 35 or, if U.S.S.G. 5Gl.l(a) applies in accordance with paragraph 13, 18 0 months." Id. ¶ 15. The parties agreed that a 180-month sentence would be reasonable. Id. ¶ 13. The United States also agreed to submit a 5K1.1 motion. Answer ¶ 31. Petitioner indicated the United States' summary of the plea agreement conformed to his understanding of the terms, and admitted to selling firearms and possessing them in connection with narcotics trafficking and to possessing pit bulls for the purpose of dog fighting. Plea Transcript 15:11-13, 17:14 to 18:14. The Court accepted Petitioner's guilty plea and i determined Petitioner was knowingly and voluntarily waiving his rights. Id. 19:11-14.

         The parties appeared before the Court on May 28, 2015 for sentencing. Sentencing Transcript, Respondent's Exhibit D. The Court calculated the guideline range to be between 262 and 327 months based on an offense level of 34 and criminal history category of 6. Id. 18:4-8. After hearing argument from trial counsel and Petitioner regarding mitigating factors, the Court sentenced Petitioner to 110 months incarceration. Id. 18:20-22. Petitioner did not file a direct appeal.

         Petitioner filed a motion under 28 U..S.C. § 2255 on May 31, 2016. Docket Entry 1. On June 2, 2016, this Court issued a notice and order pursuant to United States v. Miller, 197 F.3d 644 (3d Cir. 1999) advising Petitioner of his rights and the potential consequences of filing the § 2255 motion. Miller Order, Docket Entry 2. Petitioner responded on June 20, 2016 indicating he wished to withdraw the filed petition and file a new all-inclusive petition. Miller Response, Docket Entry 3. The Court gave Petitioner 30 days to submit his all-inclusive petition, which Petitioner submitted on July 27, 2016, Docket Entry 5. Respondent filed its answer on October 28, 2016, Docket Entry 7, and Petitioner did not submit a traverse.

         The motion is now being considered on the papers as the record conclusively shows Petitioner is not entitled to an evidentiary hearing or relief. Fed.R.Civ.P. 78(b); 28 U.S.C. § 2255(b).

         III. ...

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