United States District Court, N.D. Alabama, Eastern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS, UNITED STATES DISTRICT JUDGE
Lee Reaves, a federal prisoner, seeks to have his sentence
vacated, set aside, or corrected pursuant to 28 U.S.C. §
2255. Doc. 1. For the reasons explained below,
Reaves's petition is DENIED.
Standard of Review
conviction and sentencing, 28 U.S.C. § 2255 allows a
federal prisoner to file a motion in the sentencing court
“to vacate, set aside or correct the sentence” on
the basis “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 a sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack[.]”
28 U.S.C. § 2255(a). To obtain relief under § 2255,
a petitioner must: (1) file a non-successive petition or
obtain an order from the Eleventh Circuit authorizing a
district court to consider a successive § 2255 motion,
28 U.S.C. § 2255(h), § 2255 Rule 9; (2) file the
motion in the court where the conviction or sentence was
received, see Partee v. Attorney Gen. of Ga., 451 F.
App'x 856 (11th Cir. 2012)(unpublished); (3) file the
petition within the one-year statute of limitations, 28
U.S.C. § 2255(f); (4) be “in custody” at the
time of filing the petition, Spencer v. Kemna, 523
U.S. 1, 7 (1998); (5) state a viable claim for relief under
the heightened pleading standards of § 2255 Rule 2(b),
see also McFarland v. Scott, 512 U.S. 849, 856
(1994); and (6) swear or verify the petition pursuant to 28
U.S.C. § 1746. Finally, “[i]n deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
However, “if the record refutes the applicant's
factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary
Procedural History, 
March 26, 2014, a two-count indictment was returned by a
federal grand jury in Birmingham, charging defendant Donald
Lee Reaves with the offenses of Felon in Possession of a
Firearm and Possession of an Unregistered Firearm (sawed-off
shotgun), in violation of 18 U.S.C. § 922(g)(1) and 26
U.S.C. § 5861(d), respectively. Crim. Doc. 1.
entered a plea of not guilty at arraignment on April 17,
2014, with the assistance of a Federal Public Defender, who
was initially appointed to represent him. Reaves subsequently
filed a pro se motion seeking substitution of counsel based
on “current counsel's difference of opinion and
views towards strategies and choices…” Crim.
Doc. 12. The motion was granted on June 3, 2014, and the
Court appointed Michael V. Rasmussen, Esq., to serve as
Reaves' new attorney. Crim. Doc. 17 (docket entry).
10, 2014, counsel filed a motion to suppress the
government's evidence, claiming that the police had
gained entry into Reaves' apartment through deception;
that the officer's request to see Reaves's
driver's license was tantamount to an unlawful,
warrantless seizure of the Defendant; and that the warrant
used to search Reaves's apartment had been based on an
affidavit lacking probable cause. Crim. Doc. 21. The
magistrate judge conducted a hearing and later issued a
Report and Recommendation (“R&R”)
recommending that the motion be denied in its entirety. Crim.
Doc. 35. Defense counsel subsequently filed objections to the
R&R, and supplemental objections to the R&R. Crim.
Docs. 36, 40. On November 5, 2014, the undersigned judge
issued an order sustaining the objections as to a portion of
the R&R and suppressing all drug evidence found inside
Reaves's apartment. Crim. Doc. 47. The November 5 Order,
however, overruled Reaves's objections to the remaining
portions of the R&R. Id.
of this case commenced Monday, January 5, 2015, before the
undersigned judge and a duly empaneled jury. On January 7,
2015, the jury returned a verdict. The jury found Reaves
guilty of being a felon in possession of a firearm (Count
One), but not guilty as to the sawed-off shotgun charge
(Count Two). Crim. Doc. 70.
April 22, 2015, the Court found Reaves met the criteria for
the Armed Career Criminal Act enhancement, and sentenced him
to a custodial term of 192 months as to Count One. Crim. Doc.
represented by Mr. Rasmussen, Reaves filed a direct appeal
that ultimately proved unsuccessful, as were his petitions
for rehearing en banc and for certiorari.
United States v. Reaves, 647 F.App'x 942 (11th
Cir. Apr. 11, 2016)(unpublished), cert. denied sub nom.
Reaves v. United States, 137 S.Ct. 324, 196 L.Ed.2d 236
(October 11, 2016). Thus, his conviction became final on
October 11, 2016. See Clay v. United States, 537
U.S. 522, 527, 123 S.Ct. 1072, 1076, 156 L.Ed.2d 88 (2003).
He timely filed this § 2255 motion on March 28, 2017,
the date it was placed in the prison's internal mail
system. Doc. 1 at 5.
2013, Officer Nakia Garrett went to 1480 Old Shocco Road,
Apartment 9 in Talladega, Alabama to serve an arrest warrant
on Kimberly Kelly. Garrett had visited the apartment six
months earlier to investigate a stolen vehicle and remembered
Kelly being present at that apartment, although she had told
him that the apartment belonged to Reaves.
Garrett knocked on the door and identified himself as a
police officer, Reaves allowed Garrett to enter the
apartment. Reaves told Garrett that he did not know Kelly.
Garrett asked for Reaves's identification to know with
whom he was speaking. When he ran Reaves's license
through dispatch, Garrett learned that Reaves had an