United States District Court, E.D. Virginia, Newport News Division
MEMORANDUM OPINION AND ORDER
Raymond A. Jackson United States District Judge.
matter comes before the Court on Robert Jayson Jones's
("Petitioner") pro se Motion, filed
pursuant to Title 28, United States Code, Section 2255 to
Vacate Sentence by a Person in Federal Custody ("§
2255 Motion"). Having thoroughly reviewed the filings in
this case, the Court finds this matter is ripe for judicial
determination. For the reasons set forth below,
Petitioner's § 2255 Motions is
FACTUAL AND PROCEDURAL HISTORY
Jury in the Eastern District of Virginia returned a four
Count Indictment against Petitioner on November 12, 2013. ECF
No. 12. Counts One and Two charged Petitioner with
Distribution of Child Pornography in violation of 18 U.S.C.
§ 2252A(a)(2). Count Three charged Petitioner with
Receipt of Child Pornography in violation of 18 U.S.C. §
2252A(a)(2). Count Four charged Petitioner with Possession of
Obscene Visual Representations of the Sexual Abuse of
Children in violation of 18 U.S.C. § 1466A(b).
Petitioner pled guilty to Count Three on January 7, 2014. ECF
No. 26. Petitioner was sentenced on April 9, 2014 to one
hundred and eight months on Count Three, and fifteen years of
supervised release. ECF No. 39.
December 16, 2016, Petitioner moved to vacate his .sentence
pursuant 28 U.S.C. § 2255 ("2255 Motion"), ECF
No. 45, and to proceed in forma pauperis. ECF No.
47. The Government filed a response on February 1, 2017. ECF
No. 49. Petitioner moved for leave to withdraw his 2255
Motion. ECF No. 54. The Court granted Petitioner's Motion
for leave to withdraw his 2255 Motion. ECF No. 55.
Petitioner, again, filed a 2255 Motion on April 27, 2017. ECF
petitioner in federal custody wishes to collaterally attack
his sentence or conviction, the appropriate motion is a
§ 2255 motion. United States v. Winestock, 340
F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of
the United States Code governs post-conviction relief for
federal prisoners. It provides in pertinent part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a).
proceeding to vacate a judgment of conviction, the petitioner
bears the burden of proving his or her claim by a
preponderance of the evidence. Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958). Motions under
§ 2255 "will not be allowed to do service for an
appeal." Sunal v. Large, 332 U.S. 174, 178
(1947). For this reason, issues already fully litigated on
direct appeal may not be raised again under the guise of a
collateral attack. Boeckenhaupt v. United States,
537 F.2d 1182, 1183 (4th Cir. 1976).
deciding a § 2255 motion, the Court must promptly grant
a hearing "unless 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). Whether a
hearing is mandatory for a § 2255 Motion and whether
petitioner's presence is required at the hearing is
within the district court's sound discretion and is
reviewed for abuse of discretion. Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970) (citing
Machibroda v. United States, 368 U.S. 487 (1962)).
argues that his sentence should be modified in light of the
2016 Amendments to the United States Sentencing Guidelines
for §2G2.2(b)(3)(F), and Fourth Circuit precedent.
Defendant also argues that his motion is timely "due to
an error by the court, revealed by recent guideline
amendments." ECF No. 57 at 1.
§ 2255 motion is subject to a one-year statute of
limitations. 28 U.S.C. § 2255(f) (2008). The ...