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United States v. Owens

United States District Court, W.D. Virginia, Big Stone Gap Division

January 7, 2019

UNITED STATES OF AMERICA
v.
HAROLD OWENS, Defendant.

          Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States; Harold Owens, Defendant Pro Se.

          OPINION

          JAMES P. JONES UNITED STATES DISTRICT JUDGE

         The defendant, proceeding pro se, has filed a motion seeking relief under 28 U.S.C. § 2255. The United States has filed a motion to dismiss, to which the movant has responded. For the reasons stated, I will grant the motion to dismiss and dismiss the § 2255 motion.

         I.

         After pleading guilty, the defendant was sentenced by this court on March 31, 2016, to a total term of 248 months imprisonment, consisting of 120 months on Count One of the Indictment, to be followed by a term of 128 months on Count Five. Count One charged the defendant with using a facility of interstate commerce with the intent that a murder be committed as consideration for payment, in violation of 18 U.S.C. § 1958(a), and Count Five charged him with knowingly using, carrying, and possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c).

         Owens initially filed a § 2255 motion on March 31, 2017, one year after the date of his sentencing. In that motion, he asserted two grounds. In his first ground, he contends that his past convictions for distribution of Schedule II controlled substances no longer qualify as predicate offenses following the Supreme Court's decision in Mathis v. United States, 136 S.Ct. 2243 (2016). In his second ground, he asserts that his 128-month sentence for Count Five exceeds the statutory maximum sentence, which he claims is 60 months.

         Owens neglected to sign and date his initial motion. He filed a subsequent § 2255 motion that he signed and dated April 26, 2017. This second motion reiterates the same two grounds asserted in his initial motion. The government moved to dismiss his § 2255 motion as barred by his plea agreement and lacking merit.

         Owens then filed another pleading, dated November 7, 2017, and filed November 20, 2017, seeking to amend his motion and transfer his case from the Big Stone Gap division of this court to the Abingdon division. In his proposed amended motion, he seeks to assert five grounds:

1. His attorney was ineffective in allowing him to waive his right to collaterally attack his conviction or sentence;
2. His attorney was ineffective in allowing him to plead guilty without first undergoing a mental health exam, and he was denied due process because his mental health problems prevented him from fully understanding the sentencing proceedings;
3. Because he was sentenced in Abingdon, the Big Stone Gap division lacks jurisdiction to decide his § 2255 motion, and he is being denied due process by having his motion heard in the wrong division;
4. His counsel was ineffective in allowing him to be convicted on Count One when he was not actually guilty of the offense charged because he did not cross state lines or use interstate commerce facilities; moreover, the prosecutor “usurp [sic] the state laws and manufactured jurisdiction within a false indictment for arrest, ” and “federal agents used entrapment to have undercover informant to record a conversation on the informants [sic] cell-phone without any evidence on who was being recorded, ” Am. Mot. 3, ECF No. 101-1; and
5. His attorney was ineffective in allowing prior convictions to be considered at sentencing when those convictions were not for serious offenses, “were from one crime”, and the defendant had not had counsel when he was convicted of those prior offenses. Id.

         The magistrate judge ordered Owens to show cause “why the motion to amend should not be denied as futile for presenting time-barred claims and why the amended §2255 motion should relate back to the original §2255 motion when there is no affidavit or averment noting whether or when petitioner deposited the original §2255 motion ...


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