United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
F. BIVINS UNITED STATES MAGISTRATE JUDGE
before the Court is Petitioner Jesse Jackson's
“Writ of Error Coram Nobis” and supplement
thereto. (Docs. 216, 220). Also pending before the Court are
the Government's Motion to Dismiss and Jackson's
response in opposition. (Docs. 222, 223). This action has
been referred to the undersigned Magistrate Judge for a
report and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B) and Rule 8(b) of the Rules Governing Section
2255 Cases and is now ready for consideration.
undersigned has conducted a careful review of the record and
finds that no evidentiary hearing is required to resolve this
case. See Kelley v. Sec'y for Dep't of
Corr., 377 F.3d 1317 (11th Cir. 2004). Following a
complete review of this action, the undersigned recommends
that the Government's Motion to Dismiss be
GRANTED, and that this action be
DISMISSED. The undersigned further
recommends that in the event Jackson files a certificate of
appealability and seeks to appeal in forma pauperis,
said requests should be DENIED.
was charged in a federal indictment with conspiracy to
possess with the intent to distribute cocaine, in violation
of 21 U.S.C. § 841(a)(1) (count one); conspiracy to
possess with the intent to distribute crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (count two);
possession with the intent to distribute crack cocaine, in
violation of 21 U.S.C. § 841(a)(1) (counts three and
four); using and carrying a firearm in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
(count five); and possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) (count
six). (Doc. 1-3 at 1-4). On July 12, 2007, Jackson's
appointed counsel advised the Court of Jackson's desire
to enter into a counseled plea agreement. (Doc. 47). In the
plea agreement, Jackson agreed to plead guilty to counts two
(conspiracy to possess with the intent to distribute crack
cocaine) and five (using and carrying a firearm in
furtherance of a drug trafficking crime) of the indictment.
(Doc. 59 at 1-2).
of the plea agreement, Jackson agreed to waive his right to
challenge, in a direct appeal or a collateral attack, any
sentence imposed in his case or the manner in which it was
determined, except that Jackson reserved his right to
challenge any sentence imposed in excess of the statutory
maximum, any sentence which constituted an upward departure
from the guideline range, and any claim of ineffective
assistance of counsel. (Id. at 10). In return, the
Government agreed that it would not bring any additional
charges against Jackson related to the facts underlying the
indictment and that it would move to dismiss the remaining
counts against Jackson. (Id. at 5). The Government
also agreed that if, in its sole discretion, Jackson
provided substantial assistance in the investigation or
prosecution of another criminal offense, the Government would
move for a downward departure in accordance with U.S.S.G.
§ 5K1.1 or would file a Rule 35 motion pursuant to the
Federal Rules of Criminal Procedure. (Id. at 7). The
Government further agreed that if Jackson's cooperation
did not amount to substantial assistance, as determined
solely by the Government, the Government would recommend that
Jackson be sentenced at the low end of the sentencing
guidelines range. (Id. at 8).
19, 2007, Jackson entered a plea of guilty to counts two and
five of the indictment. (Docs. 65, 190). Jackson was
sentenced, on December 18, 2007, to two-hundred and forty
(240) months' imprisonment on count two (drug
conspiracy), to be followed by a consecutive term of sixty
(60) months' imprisonment on count five (possessing a
firearm in furtherance of a drug trafficking crime). (Doc.
200 at 6). On January 8, 2008, the Court entered a judgment
consistent with the pronounced sentence. (Doc. 101).
March 10, 2009, Jackson filed a pro se Motion to
Enforce Plea Agreement. (Doc. 130). Jackson asserted that
“[o]n December 18, 07, the D.A.s office and the
courts agree to give me a 5K1 for the substantial amount of
assistance I provided to the federal agent[, ]” and
asked the Court to enforce the plea agreement between Jackson
and the United States Attorney's Office. (Id. at
1). In its response in opposition, the Government argued that
the plea agreement plainly reserved to it sole discretion to
determine whether Jackson's cooperation amounted to
substantial assistance and merited a motion for downward
departure from the applicable sentencing guideline range.
(Doc. 132 at 1-2). The Court denied Jackson's motion for
the reasons set forth in the Government's response. (Doc.
April 29, 2009, Jackson's attorney filed a Motion to
Reconsider the Court's Order denying Jackson's
pro se Motion to Enforce Plea Agreement. (Doc. 134).
In the motion, Jackson's attorney stated that he had
received a letter from Jackson asking for help in this matter
and had also received a telephone call from “the
investigator responsible for [Jackson's] arrest in the
first instance and also responsible for assuring [Jackson]
his cooperation would be rewarded.” (Id. at
2). In response, counsel for the Government averred that it
would “continue to investigate the timing of
[Jackson's] pre-indictment activity to determine whether
a Rule 35 is appropriate, ” but nevertheless maintained
that the Court had no authority to intervene in its decision
as to whether to file a substantial assistance motion absent
an allegation of unconstitutional motive. (Doc. 138 at 2). In
denying Jackson's Motion to Reconsider, the Court found
that Jackson had failed to demonstrate that the Government
manifested a “constitutionally impermissible
motivation” in refusing to move for a reduction in his
sentence. (Doc. 139).
October 28, 2011, Jackson filed a pro se
“Motion for Reduction of Sentence Pursuant to the Fair
Sentence Act and the Retroactivity Amendment 750 U.S.C.
§ 3582(c)(2) & 3553(a)[.]” (Doc. 164).
Jackson's motion was denied on the ground that the Fair
Sentencing Act's reduction or elimination of the
statutory minimum sentence with regard to certain quantities
of crack cocaine did not apply to defendants, such as
Jackson, whose criminal conduct occurred before August 2010.
(Doc. 167 at 1). Jackson then filed a motion for
reconsideration (Doc. 173), which was denied on December 17,
2012. (Doc. 174).
October 3, 2014, Jackson initiated a pro se appeal
from the sentence imposed by the Court. (Doc. 178).
Subsequent thereto, Jackson's counsel filed a brief
pursuant to Anders v. State of Cal., 386 U.S. 738
(1967), asserting the lack of arguable meritorious issues of
on appeal and requesting permission to
withdraw. See No. Merit Brief Filed
Pursuant to Anders v. Cal., United States v. Jackson, No.
14-14732 (11th Cir. Mar. 3, 2015), 2015 WL 1138619. In an
Order dated July 7, 2015, the Eleventh Circuit held that an
examination of the entire record revealed no arguable issues
of merit; thus, Jackson's convictions and sentences were
affirmed, and his defense counsel's request to withdraw
was granted. (Doc. 210 at 2).
14, 2015, Jackson filed another pro se Motion for
Reduction of Sentence, this time on the basis of the
retroactive application of Amendment 782 to the United States
Sentencing Guidelines, which lowered the federal sentencing
guideline ranges for drug quantities by two levels. (Doc.
211). The Court denied Jackson's motion because Jackson
was sentenced to a statutory minimum sentence of 240 months
due to his prior conviction for a felony drug offense, and
even though Amendment 782 nominally reduced his guideline
range, by law, his actual guideline range could not fall
below the statutory minimum. (Doc. 213) (citing U.S.S.G.
then filed the pending Writs of Error Coram Nobis on March 3,
2016, and December 1, 2016. (Docs. 216, 220). As noted in the
Court's Order dated April 28, 2017, a writ of error coram
nobis is not a remedy available to in-custody petitioners
seeking to attack their federal convictions; thus, the Court
construes Jackson's filings (Docs. 216, 220) collectively
as a habeas petition pursuant to 28 U.S.C. § 2255.
(See Doc. 221 at 1-2).As best the Court can discern,
Jackson appears to raise three related claims. Jackson's
first and primary claim is that the Government breached its
plea agreement with him by refusing to file a motion to
reduce his sentence pursuant to U.S.S.G. § 5K1.1 or Fed.
R. Crim. P. 35, despite his substantial assistance (prior to
his federal indictment) of participating in two controlled
drug purchases that led to the arrest, indictment, and
successful prosecution of five individuals. (Doc. 216 at
15-16). Second, Jackson claims his attorney was ineffective
because he failed to mention in the post-conviction Motion to
Reconsider filed on Jackson's behalf on April 29, 2009,
that Jackson had performed two successful “controlled
buys” prior to his federal indictment, and instead
mentioned “only the praise offered by Officer Stone
without an affidavit by Officer Stone.” (Id.
at 65). Third, Jackson claims his attorney was ineffective at
sentencing on December 18, 2007, because he failed to
specifically bring the two controlled buys to the Court's
attention despite the fact that Jackson repeatedly requested
him to do so. (Id. at 66). Jackson seeks to have his
sentence for count two reduced. (Id. at 84).
response, the Government seeks dismissal of Jackson's
habeas petition as time-barred under the relevant statute of
limitations and as procedurally defaulted due to
Jackson's failure to raise these claims on direct appeal.
(Doc. 222 at 2-3). The Government also argues that
Jackson's claims fail on the merits because he has not
established that the Government's decision not to file a
substantial assistance motion was based on an
unconstitutional motive. (Id. at 3). In his reply,
Jackson does not dispute that his petition is untimely under
§ 2255. He instead argues that “[t]his is not a
2255 as the Assistant United States Attorney . . . claims.
Petitioner is filing a Writ of Error Coram Nobis. It is
without time limitation.” (Doc. 223 at 3). For the
reasons set forth below, the undersigned finds that
Jackson's petition is time-barred and accordingly