United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten, Judge.
Jimmy Barnes was convicted of two firearms charges in 2011,
and sentenced to 180 months imprisonment. The matter is
before the court on Barnes's motion to vacate his
sentence under 28 U.S.C. § 2255. (Dkt. 54). Barnes
generally argues that the terms “possession” and
“drug trafficking offense” as used in 18 U.S.C.
§ 922(g)(1) and 924 (c) are unconstitutionally vague,
and that the court should have applied a different
construction of “constructive possession.” For
the reasons provided herein, the court finds that it lacks
jurisdiction to address defendant's claims, and the
motion is accordingly dismissed.
November 21, 2011, defendant Jimmy Barnes entered into a Plea
Agreement under which he pled guilty to two counts contained
in the Indictment- possession of a short-barreled shotgun, in
violation of 18 U.S.C. §§ 924(c)(1)(A) and
(c)(1)(B)(i)), and possession of a firearm by a prohibited
person, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). (Dkt. 36). Barnes expressly agreed to
“knowingly committing the offenses, and to being guilty
of the offenses.” (Id. ¶ 1). The
Agreement specifically identifies the modified shotgun by
model, and acknowledges Barnes' prior felony conviction.
He further agreed that he possessed the shotgun to aid in his
drug trafficking in methamphetamine. The defendant's plea
was free, voluntary, and made with a full understanding of
all matters related thereto. (Dkt. 35, ¶ 23). The
Presentence Investigation Report (Dkt. 44, at 26-27)
accurately calculated Barnes's term of imprisonment.
to 28 U.S.C. § 2255(f)(1), the defendant was obliged to
bring any claim for collateral relief within one year of when
the February 2, 2012 judgment became final. A judgment is
final when “the availability of appeal exhausted, and
the time for a petition for certiorari elapsed or a petition
for certiorari finally denied.” Griffith v.
Kentucky, 479 U.S. 314, 321 n.6 (1987). Under
Fed.R.Crim.P. 4(b)(1)(A), the judgment in the present action
became final 14 days after it was entered, since the
defendant filed no timely appeal. The defendant's motion
filed over five years after the judgment became final is
the defendant's current collateral claims are barred by
the provisions of the Plea Agreement, in which he knowingly
and voluntarily waived any such collateral attack. The
court's review of both the Plea Agreement and the
Petition to Enter a Plea of Guilty (Dkt. 35, 36) establish
that the defendant knowingly and voluntarily waived his
rights to both direct appeal and any collateral challenge.
(Dkt. 36). None of the potential exceptions to enforcement of
that waiver is applicable here, as the court sentenced Barnes
to charges explicitly advanced in the Indictment, the present
motion falls within the scope of the defendant's knowing
and voluntary waiver, and no miscarriage of justice arises
from enforcement of the agreement. See United States v.
Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). The sentence
imposed was reasonable under the circumstances of the case,
and within the range that defendant recognized in the
Agreement as potentially applicable.
the court finds that the defendant's Motion should be
dismissed, and that no certificate of appealability should
issue under 28 U.S.C. § 2253(c)(1)(B). Barnes has failed
make any substantial showing of the denial of a
constitutional right, or that reasonable jurists would differ
as to the legality of the firearms statutes. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The knowing and
voluntary nature of the defendant's Plea Agreement and
its waiver of collateral relief, as well as the untimeliness
of the present motion, conclusively establish that the
defendant-petitioner is not entitled to the relief sought.
the court grants defendant's Motion for Leave to Proceed
In Forma Pauperis (Dkt. 56). His request (Dkt. 55) for leave
to supplement his original Motion to Vacate is denied as
moot, as defendant has already submitted his Supplement (Dkt.
58), and the court has taken that submission into account in
the present Order.
ACCORDINGLY ORDERED this day of July, 2019, that the
defendant's Motion to Vacate (Dkt. 54) is dismissed, his
Motion to Supplement (Dkt. 55) is denied as moot, and his
Motion for Leave to Proceed In Forma Pauperis (Dkt. 56) is
 None of the alternative limitations
provisions in Section 2255(f) is applicable. No.
unconstitutional government action thwarted a timely motion,
the Supreme Court has not adopted any new rule of
constitutional law made retroactive to cases on collateral
review, and no new, previously-unavailable facts have been
discovered. The defendant presents a purely legal argument of