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United States v. Williams

United States District Court, D. Kansas

October 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCEL WILLIAMS, Defendant.

          MEMORANDUM AND ORDER

          Kathryn H. Vratil, United States District Judge.

         On May 5, 2009, the Court sentenced defendant to 110 months in prison. On October 28, 2011, the Court reduced defendant's sentence to 77 months under Amendment 706 to the Sentencing Guidelines. This matter is before the Court on defendant's Motion Pursuant To 28 U.S.C. § 2255 To Vacate And Set Aside My Revocation Sentence Of Imprisonment Because It Is Unconstitutional (Doc. #149) filed July 15, 2019. For reasons stated below, the Court overrules defendant's motion and denies a certificate of appealability.

         Factual Background

         On November 25, 2008, pursuant to a plea agreement, defendant pled guilty to aiding and abetting Lamonte Ephriam to possess with intent to distribute more than five grams of cocaine base within 1, 000 feet of a public elementary school in violation of 21 U.S.C. §§ 841(a)(1) and 860. See Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #13).

         Defendant's total offense level was 28, with a criminal history category IV, resulting in a guideline range of 110 to 137 months. The Court sentenced defendant to 110 months in prison. See Judgment In A Criminal Case (Doc. #37) filed May 6, 2009. Defendant did not appeal.

         On August 9, 2010, the Court overruled defendant's pro se motion to vacate his sentence under 28 U.S.C. § 2255. See Memorandum And Order (Doc. #78).

         On November 5, 2018, the Court revoked defendant's supervised release based on his admitted marijuana use and association with a person engaged in criminal activity. See Judgment In A Criminal Case (Doc. #147). The Court sentenced defendant to 24 months in prison. Defendant did not appeal.

         On July 15, 2019, defendant filed the instant motion to vacate his sentence on supervised release. Defendant argues that his sentence is unconstitutional because he did not receive a jury trial that established his guilt beyond a reasonable doubt.

         Analysis

         The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974).

         I. Procedural Bar - Failure To Appeal

         As the government correctly notes, defendant's challenge to the constitutionality of Section 3582(e)(3) is barred because he did not raise it on direct appeal.[1] See Government's Response In Opposition To Defendant's Motion To Vacate And Set Aside Revocation Sentence (Doc. #151) filed August 23, 2019 at 6-8. Defendant did not appeal his revocation sentence, and Section 2255 is not available to test the legality of matters which should have been raised on appeal. United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994); see United States v. Bolden, 472 F.3d 750, 751 (10th Cir. 2006) (Section 2255 petition not appropriate vehicle to raise issues that should have been raised on direct appeal).

         Defendant is precluded from raising in a Section 2255 petition issues which were not raised on direct appeal unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if his claims are not addressed. Allen, 16 F.3d at 378. Defendant has not satisfied either of these exceptions.

         Defendant has not filed a reply or responded to the government's assertion that his claim is procedurally barred. In his motion, defendant has not asserted grounds that would constitute cause for his procedural default. Likewise, defendant's motion does not assert “prejudice, ” i.e. that the alleged errors worked to his actual and substantial disadvantage, infecting his entire sentence with error of constitutional dimensions. United States v. Frady, 456 U.S. 152, 170 (1982). Finally, the Court finds no basis to find that defendant has satisfied the exception for a “fundamental miscarriage of justice.” The Supreme Court has held that this exception applies only if one is actually innocent. See Bousley v. United States, 523 U.S. 614, 623 (1998). Defendant has not shown that he is actually innocent of the original charges or the supervised release violations. Therefore, he cannot establish ...


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