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Jones v. United States

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

April 20, 2018

MARK J. JONES, SR., Petitioner
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          ROBERT G. DOUMAN SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Motion for a Certificate of Appealability, ECF No. 212, Motion for Reconsideration, ECF No. 213, Supplemental Motion for Reconsideration, ECF No. 229, and Motion to Reduce Sentence, ECF No. 230, all filed by Mark J. Jones ("Petitioner"). For the reasons set forth below, the Court DENIES or DISMISSES all of these Motions.

         I. BACKGROUND

         On April 27, 2015, Petitioner pled guilty to three counts of a modified criminal information. ECF No. 52; see also Plea Agreement, ECF No. 55; Statement of Facts, ECF No. 56. Counts One and Two of the criminal information charged Petitioner with Mail Fraud in violation of 18 U.S.C. § 1341, and Count Three charged Petitioner with Aggravated Identity Theft in violation of 18 U.S.C. § 1028A(a)(1). Criminal Information, ECF No. 53.

         On December 7, 2015, this Court sentenced Petitioner to 126 months of imprisonment. Sentencing Hr'g, ECF No. 155; J., ECF No. 158. Consistent with his plea agreement, Petitioner did not file an appeal. See Plea Agreement ¶ 5 (waiving right to appeal conviction or sentence).

         On February 29, 2016, Petitioner filed his first Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (his "Initial § 2255 Motion") and an accompanying memorandum in support. ECF Nos. 173-74. Petitioner asserted four grounds for relief in his motion and memorandum. Id. On March 7, 2016, this Court ordered the government to respond to Petitioner's Initial § 2255 Motion within sixty (60) days. Order, ECF No. 175. On March 29, 2016, before the government had responded to Petitioner's Initial § 2255 Motion, Petitioner filed a supplemental brief, wherein he asserted an additional ground, his fifth, for §2255 relief. ECF No. 179.

         On May 5, 2016, the government responded to Petitioner's Initial § 2255 Motion and also addressed the new ground for relief raised by his supplemental brief. ECF No. 181. On May 18, 2016, Petitioner filed a Motion to Compel a Response from the Government and Supplemental Pleading Expanding the Record on Petitioner's 28 U.S.C. § 2255 Motion. ECF No. 185. Within this filing, Petitioner moved the Court to compel the government to respond to his Initial § 2255 Motion and asserted an additional ground, his sixth, for § 2255 relief. Id. In a May 18, 2016 Order, this Court denied the Motion to Compel because the government had in fact responded to Petitioner's Initial § 2255 Motion. Order, ECF No. 186. In an abundance of caution, the Court extended the time for Petitioner to reply to the government's response. Id. The Court also explained to Petitioner that § 2255 Motions were treated like civil lawsuits and that Petitioner could amend his petition by right only once, a right exercised by Petitioner with his first Supplemental Brief. Id. However, the Court informed Petitioner that it would consider the sixth ground for § 2255 relief that he raised along with his Motion to Compel. Id. The Court also gave the government a chance to reply to this new ground for relief and gave Petitioner the right to reply to the government's response. Id. The Court informed Petitioner that he could not amend or supplement his Initial § 2255 Motion further without leave of this Court. Id.

         On May 23, 2013, Petitioner replied to the government's response. ECF No. 187. On June 15, 2016 the government responded to the new ground for relief raised by Petitioner in his Motion to Compel. ECF No. 189. On June 22, 2016, Petitioner replied to that response. ECF No. 193. Petitioner did not limit his reply to the contents of the government's response to his sixth ground for § 2255 relief, but made arguments concerning all six grounds for § 2255 relief that he had raised. Id.

         In addition to the various amendments and supplements to his Initial § 2255 Motion, Petitioner made several motions in which he asked to subpoena witnesses and documents, to otherwise conduct discovery in support of his Initial § 2255 Motion, and to have the government respond to his discovery motions. ECF Nos. 188, 197, and 205. Because the merit or lack of merit of these motions depended on the Court's consideration of Petitioner's pleadings in support of his Initial § 2255 Motion, the Court did not ask the government to respond to them.

         On September 6, 2016, the Court denied Petitioner's Initial § 2255 Motion and all other motions pending before the Court at that time. ECF No. 175. The Court declined to issue Petitioner a certificate of appealability. Id. at 16-17.

         On October 17, 2016 Petitioner filed a Motion Requesting a Certificate of Appealability and a Motion for Reconsideration. ECF Nos. 212, 213. But, on the same day, Petitioner filed a Notice of appeal. ECF No. 214. On February 28, 2017, the Fourth Circuit also denied Petitioner a certificate of appealability and dismissed his appeal. ECF No. 224.

         On March 6, 2017, the Fourth Circuit docketed a motion made by Petitioner under 28 U.S.C. § 2244 that requested an order authorizing this Court to consider a second or successive application for relief under 28 U.S.C. § 2255. See ECF No. 227. On March 27, 2017, the Fourth Circuit denied that motion. Id.

         Nonetheless, on May 1, 2017, Petitioner filed a Supplemental motion for Reconsideration, purporting to amend his October 17, 2017 Motion for Reconsideration to include an argument based on a new Supreme Court ruling. ECF No. 229. On May 11, 2017, Petitioner filed a Motion to Reduce Sentence Pursuant to 18 ...


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