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United States v. Jones

United States District Court, E.D. Virginia, Richmond Division

November 28, 2016

UNITED STATES OF AMERICA
v.
TONY LEE JONES, JR.

          MEMORANDUM OPINION

          Robert E. Payne Senior United States District Judge

         Tony Lee Jones, Jr., a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion, " ECF No. 41) .[1] Jones contends that the Court committed several errors and that counsel rendered ineffective assistance[2] in conjunction with his criminal proceedings. Specifically, Jones demands relief because:

Claim One: "Indictment does not profess to set out the exact recital of the laboratory quantity actually found by lab reports." (§ 2255 Mot. 4.)
Claim Two: "The Court erred in finding that as a matter of law that the [Virginia] statute § 18.2-248 qualified as a predicate for [United States Sentencing Guidelines §§] 4B1.1 & (2) ." (Id. at 5.)
Claim Three: "The Court procedurally erred when it applied the additional 2 points for a firearm possessed." (Id. at 6.)
Claim Four: "The Government has failed to present competent evidence that would justify the 2-level enhancement." (Id. at 8.)
Claim Five: "Counsel was ineffective at numerous critical stages of the criminal proceeding." (Mem. Supp. § 2255 Mot. 14.)
Claim Six: "Counsel was ineffective for failing to know the federal local rules and federal procedures on numerous occasions, rendering him constitutionally defective." (Id. at 17.)
Claim Seven: "Counsel was ineffective for failing to adequately prepare, thus forcing the petitioner to accept a plea involuntarily." (Id. at 19.)
Claim Eight: "Counsel was ineffective for failing to inform the petitioner of a more favorable plea agreement, thus violating Missouri v. Frye[, 132 S.Ct. 1399 (2012)] and Lafler v. Cooper [, 132 S.Ct. 1376 (2012)]." (Id. at 20.)
Claim Nine: "The conviction itself is based upon an illegal search and seizure of person and the 4th Amendment, thus causing Mr. Jones to become wrongfully convicted." (Id. at 21.)

         The Government has responded, asserting that Jones's claims lack merit. (ECF No. 46.) Jones has filed a Reply. (ECF No. 48.) Jones has also filed a "Motion to Supplement/Amend § 2255 With New Supreme Court Case Supporting the Petitioner's Position, " ("Motion to Amend, " ECF No. 55). Because the Motion to Amend provides additional argument and support for Claim One, the Court will grant the Motion to Amend (ECF No. 55) . For the reasons set forth below, Jones's § 2255 Motion (ECF No. 41) will be denied.

         I. PROCEDURAL HISTORY

         On January 8, 2013, a grand jury charged Jones, in a one-count Indictment, with possession with the intent to distribute 2 8 grams or more of a mixture and substance containing a detectable amount of cocaine base. (Indictment 1, ECF No. 1.) On January 25, 2013, Lee Kilduff entered a Notice of Appearance on Jones's behalf. (ECF No. 5.)

         On April 2, 2013, Brent Jackson filed a Motion to Substitute Attorney and Motion to Continue in Jones's case. (ECF Nos. 15, 16.) By Order entered on April 3, 2016, the Court denied the Motions without prejudice. (ECF No. 17, at 1-2.) The Court denied the Motion to Substitute Attorney "for failing to comply with the Local Criminal Rules, " (id. at 1), and denied the Motion to Continue "as it was not filed by the defendant's counsel of record" (id. at 2) .

         On April 3, 2013, Jones filed a Motion to Suppress. (ECF No. 18.) On April 5, 2013, Jackson filed a Motion for Leave to File Amended Motion to Substitute Attorney, as well as an Amended Motion to Substitute Attorney. (ECF No. 21.) By Order entered on April 5, 2013, the Court granted the Motions and relieved Lee Kilduff as counsel of record. (ECF No. 22, at 1.)

         On April 18, 2013, Jones filed a Motion to Withdraw Suppression Motion. (ECF No. 24.) In the Motion, counsel represented that Jones "decided, on his own, that it was in his best interest to withdraw the pending Motion to Suppress." (Id. at 1.) By Order entered that same day, the Court granted the Motion to Withdraw Suppression Motion. (ECF No. 25, at 1.)

         On May 6, 2013, Jones appeared before the Court and pled guilty to the one-count Indictment. (Plea Agreement ¶ 1, ECF No. 27.) During his Rule 11 proceedings, Jones confirmed his understanding of the charge and the penalties for the charge. (May 6, 2013 Tr. 4, ECF No. 44.) Jones indicated that he was satisfied with the representation Brent Jackson had provided in his case. (May 6, 2013 Tr. 8.) When asked by the Court if he needed additional time to talk to Jackson about his case, Jones responded in the negative. (May 6, 2013 Tr. 8.) Jones understood that the Court would consider the applicable sentencing guidelines, including whether Jones qualified as a career offender, in determining his sentence. (May 6, 2013 Tr. 11-14.) At the conclusion of the Rule 11 proceedings, the Court accepted Jones's guilty plea, finding that Jones had ''entered a knowing and voluntary plea of guilty which is supported by an independent basis in fact." (May 6, 2013 Tr. 19.)

         On August 2, 2013, the Court entered judgment against Jones and sentenced him. to 188 months of imprisonment. (J. 2, ECF No. 3 9.) Jones did not appeal.

         II. CLAIMS RAISING TRIAL COURT ERROR

         A. Claim One

         In Claim One, Jones contends that the "Indictment does not profess to set out the exact recital of the laboratory quantity actually found by lab reports." (§ 2255 Mot. 4.) Jones was charged with possession with the intent to distribute 28 grams or more of a mixture and substance containing a detectable amount of cocaine base. (Indictment 1.) The substance, which had a net weight of 39.9 grams, was tested and found to contain 10.6 grams of the actual drug. (Mem. Supp. § 2255 Mot. Ex. A, ECF No. 42-1; Gov't's Resp. Ex. 4, ECF No. 46-4.)

         Jones now argues that he should have only been charged with possession with the intent to distribute 10.6 grams of cocaine base. (Mem. Supp. § 2255 Mot. 2.) Jones, however, is mistaken. "[I]n order to determine whether a mixed substance qualifies as a particular type of drug, only trace amounts of the controlled substance need be present in that mixture." United States v. Keith, 16 F.App'x 84, 85 (4th Cir. 2001) (citing 21 U.S.C. ยง 812(c) sched. 11(a)(4) (West 1981 & Supp. 1999)). Thus, because the substance upon which the Indictment was based had a net weight of 3 9.9 grams, Jones was properly charged with ...


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