United States District Court, E.D. Virginia, Norfolk Division
MARK J. JONES, SR., Petitioner
v.
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
ROBERT
G. DOUMAR UNITED STATES DISTRICT JUDGE.
This
matter comes before the Court on the Motion to Alter or Amend
the Judgment ("Motion"), Pursuant to Fed.R.Civ.P.
Rule 59(e). ECF No. 263, filed by Mark J. Jones
("Petitioner"). For the reasons set forth below,
the Court DENIES the Motion.
I.
BACKGROUND
For
purposes of clarity, the Court restates the procedural
history and background of this matter, as set forth in its
Order dated August 10, 2018. ECF No. 262. 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, 2016, 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. 207. 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. However, on the same day,
Petitioner filed a Notice of Right to 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
U.S.C. 3582. ECF No. 230. On April 20, 2018, the Court denied
all then-pending motions. ECF No. 251.
On July
23, 2018, Petitioner filed a Motion Under Seal for a
Reduction in Petitioner's Sentence or Modification of
Sentence, Pursuant to Fed. R. Crim. P. Rule 35(b). ECF No.
259. In his Motion, Petitioner represented that agents from
the Internal Revenue Service and the Department of Justice
interviewed him three times, he provided information
regarding three coconspirators, he made calls to
co-conspirators that the IRS recorded, he indicated a
willingness to testify against his co-conspirators, and he
was brought to the Eastern District of New York to testify
before a grand jury. ECF No. 259 at 3-5. He further
represented that he testified against his co-defendant at
trial in the Eastern District of Virginia, and that each of
his three co-conspirators were indicted, convicted, and
sentenced in 2017. Id. For his substantial
assistance, the United States Attorney's Office in the
District of Colorado moved to have his sentence in that
District reduced, and the court there reduced his
eighteen-month sentence by one year. Id. at 4.
Petitioner asserted that he had been promised a sentence
reduction in the Eastern District of Virginia, citing his
Plea Agreement in which he agreed to cooperate and the United
States reserved the right to make a motion for a reduction in
sentence, and citing the United States' statement during
sentencing: "Obviously, one of the things that is in
[Petitioner's] favor is the fact that he did cooperate,
he did testify, and the government will make a motion for him
at the appropriate time." Dec. 7, 2015 Sentencing Tr.,
ECF No. 259-1 at 23. Petitioner argued that (1) the United
States' statement at sentencing modified his plea
agreement to require that the United States move to reduce
Petitioner's sentence for substantial assistance, which
modified agreement the United States had allegedly breached,
and (2) the United States' refusal to move for a sentence
reduction was based on Petitioner's race and
religion-African American and Rastafarian Jewish Nazirite-
not any legitimate government interest. ECF No. 259. The
Court denied Defendant's 35(b) Motion, noting that
"it is clear that Petitioner's written plea
agreement does not obligate the Government to file a Rule
35(b) motion" and finding that "Petitioner...failed
to allege any enforceable promise by the Government to file a
Rule 35(b) motion in his case." ECF No. 262 at 6-7. The
Court further found that "Petitioner...failed to make a
substantial showing of any unconstitutional motive by the
Government." Id. at 7.
In the
instant Motion before the Court, Defendant asks the Court to
alter or amend the Court's August 10, 2018 judgment
denying Petitioner's Motion for a Reduction in
Petitioner's Sentence. ECF No. 263. Petitioner argues
that "the Court should look again at what [Petitioner]
is arguing" and, pursuant to Federal Rule of ...