Jones v. United States

James Eric Jones, PETITIONER v. United States of America, RESPONDENT

Crim. No. 4:06-cr-01238-TLW-1

C/A No. 4:16-cv-01447-TLW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA FLORENCE DIVISION

January 11, 2018

Order

This matter comes before the Court for consideration of the pro se petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner James Eric Jones. For the reasons stated below, the Court dismisses the petition.

I. Factual and Procedural History

The Government charged Petitioner with being a felon in possession of a firearm and ammunition, and a jury convicted him on April 10, 2007 after a two-day trial. ECF Nos. 2, 58. The underlying facts of the case, as set forth in the PSR, are as follows:

On November 1, 2006, at approximately 12:55 a.m., Officer Bailey with [Mullins Police Department (MPD)], who was on routine patrol in Mullins, South Carolina, observed a blue Buick exceeding the posted speed limit of 25 miles per hour, and swerving recklessly on both sides of Seaboard Avenue. The officer initiated a traffic stop at Seaboard Avenue and West Dogwood Street by activating his blue lights. The vehicle failed to stop, ran a stop sign, and increased its speed before turning onto Miller's Road.

The chase continued down Miller's Road until the driver of the vehicle jammed on the brakes and attempted to turn left onto Davis Lane. Officer Bailey's vehicle struck the Buick on the driver's side and both vehicles came to a stop.

Officer Bailey observed the passenger of the vehicle as he crawled through the passenger window of the vehicle and fled into a nearby wood line. The passenger was . . . never apprehended and remains unidentified. The driver of the vehicle, later identified as [Petitioner], also exited the Buick through the passenger window.

However, instead of attempting to flee, [Petitioner] turned around and began to fight Officer Bailey.

Officer Bailey and [Petitioner] began to fight on the hood of the Buick. [Petitioner] was on top of the officer until both men fell to the ground. Officer Bailey landed on his stomach and when he stood up, [Petitioner] pushed him against his patrol vehicle from behind. Officer Bailey pulled out his pepper spray. At that time, [Petitioner] put a firearm to the left side of Officer Bailey's head and made a statement to the effect of: "If you move or grab anything, I'll kill you."

As Officer Bailey dropped his pepper spray, he felt [Petitioner] start to pull on his (Bailey's) duty belt. Officer Bailey stated he thought [Petitioner] was going for his duty weapon, so he (Bailey) drew his duty weapon first. At that time, Officer Bailey heard two clicks from [Petitioner's] weapon, but the gun did not fire.

Officer Bailey pointed his duty weapon in [Petitioner's] direction, between Bailey's left arm and torso, and fired one round into the left side of [Petitioner's] abdomen. As Officer Bailey stood up and turned around, [Petitioner] was still standing, but had dropped his firearm.

[Petitoner] then grabbed the barrel of Officer Bailey's duty weapon and tried to turn it towards the officer's face. Officer Bailey locked his hand around the slide so the weapon would not fire. The two men went to the ground again as they fought over Officer Bailey's firearm. During that time, [Petitioner] continued to reach for his own weapon, but Officer Bailey was able to toss the firearm away from the scene and out of [Petitioner's] reach. After Officer Bailey threw [Petitioner's] weapon, [Petitioner] yelled repeatedly for the unidentified passenger to get the gun and "shoot him!" meaning Officer Bailey.

Officer Bailey stated that while on his stomach on the ground, he fired another shot from his duty weapon away from [Petitioner], because he wanted to clear the gun and keep it out of [Petitoiner's] reach. Officer Bailey indicated that he eventually jammed his duty weapon into the dirt under his body, in an effort to disable it and protect the weapon. [Petitioner] continued to fight Officer Bailey until Lieutenant Oakley with MPD arrived on the scene.

Lieutenant Oakley was originally at a domestic call when he heard two shots coming from the direction where Officer Bailey and the suspect's vehicle had been traveling. He responded to Officer Bailey's location on Miller's Road and observed [Petitioner] on top of Officer Bailey. [Petitioner] appeared to be trying to choke Officer Bailey. Lieutenant Oakley stated he did not pull out his own duty weapon because Officer Bailey yelled that [Petitioner] no longer possessed a firearm. He also stated he was not sure it was safe to fire a shot at [Petitioner] without striking Officer Bailey.

Lieutenant Oakley then shoved [Petitioner] off of Officer Bailey. [Petitioner] attempted to get up five to ten times and Lieutenant Oakley struck the defendant inthe face with his fist until [Petitioner] was stunned enough to be handcuffed and taken into custody.

[Petitioner's] firearm, a Walther, model PPK/S, .380 caliber pistol (Serial No. 048835), was located and taken into evidence at the scene by SLED. The firearm was not listed as stolen. The firearm was fully loaded with one round in the chamber and the safety was on.

PSR ¶¶ 6-16.

The Court sentenced Petitioner as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), to a within-guidelines term of 456 months incarceration.¹ ECF No. 88. His total offense level was 41, which included a cross-reference under § 2A2.1 to attempted murder, a six-level adjustment under § 3A1.2(c)(1) for assaulting an officer during flight, and a two-level adjustment under § 3C1.2 for reckless endangerment during flight.² PSR ¶¶ 67, 68, 71. He had fourteen criminal history points, establishing a criminal history category of VI, even absent the ACCA classification. PSR ¶ 44. His total offense level of 41 and his criminal history category of VI resulted in an advisory guideline range of 360 months to life.

At that time, his following South Carolina convictions were considered ACCA predicate offenses:

(1) Attempted Burglary;³

(2) Burglary, 2nd Degree;⁴(3) Strong Arm Robbery and Assault and Battery of a High and Aggravated Nature (ABHAN);⁵

(4) Strong Arm Robbery and ABHAN;⁶ and

(5) Assault on an Officer.⁷

Petitioner was released from custody for these convictions on September 1, 2006, and he committed the instant offense on November 1, 2006—only two months later. PSR ¶¶ 6, 43.

Petitioner filed a direct appeal challenging his classification as an armed career criminal, but the Fourth Circuit affirmed his conviction and sentence. United States v. Jones, 312 F. App'x 559 (4th Cir. 2009). The Supreme Court denied his petition for a writ of certiorari. Jones v. United States, 557 U.S. 927 (2009).

On February 5, 2010,⁸ Petitioner filed a pro se petition under 28 U.S.C. § 2255, which this Court dismissed on the merits after briefing. ECF Nos. 113, 127. He filed a direct appeal, but the Fourth Circuit affirmed. United States v. Jones, 419 F. App'x 365 (4th Cir. 2011). The Supreme Court denied his petition for a writ of certiorari. Jones v. United States, 565 U.S. 933 (2011).

On or about April 25, 2016, as required by 28 U.S.C. § 2244, Petitioner filed a pro semotion in the Fourth Circuit requesting authorization to file a successive § 2255 petition to seek resentencing in light of Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II). In re Jones, No. 16-392 (4th Cir.), ECF No. 2. On May 5, 2016, the Fourth Circuit granted his motion, authorizing him to file a successive § 2255 petition. Id., ECF No. 7-2. His petition was docketed in this Court the following day. ECF No. 164.

In Petitioner's pro se petition, he seeks to be resentenced without the ACCA enhancement in light of Johnson II.⁹ Id. The Government filed a response in opposition and a motion for summary judgment, arguing that his two robbery convictions and his assault on an officer conviction remain ACCA predicate offenses after Johnson II.¹⁰ ECF Nos. 173, 174. He then filed a response in opposition to the Government's summary judgment motion, ECF No. 176, and several months later, a notice of supplemental authority addressing two additional cases, ECF No. 178.

This matter is now ripe for decision.

II. 28 U.S.C. § 2255

Title 28, Section 2255 of the United States Code provides that a prisoner in custody under sentence of a federal court may file a petition in the court that imposed the sentence to vacate, set aside, or correct the sentence. A petitioner is entitled to relief under § 2255 if he proves by a preponderance of the evidence one of the following: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction toimpose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam). "The scope of review of non-constitutional error is more limited than that of constitutional error; a non-constitutional error does not provide a basis for collateral attack unless it involves 'a fundamental defect which inherently results in a complete miscarriage of justice,' or is 'inconsistent with the rudimentary demands of fair procedure.'" Leano v. United States, 334 F. Supp. 2d 885, 890 (D.S.C. 2004) (quoting United States v. Mikalajunas, 186 F.3d 490, 495-96 (4th Cir. 1999)).

In deciding a § 2255 petition, a court need not hold a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The Court has thoroughly reviewed the motions, files, and records in this case, liberally construing Petitioner's filings, and finds that no hearing is necessary.

III. Discussion

The ACCA provides that a defendant convicted of being a felon in possession of a firearm or ammunition who...