United States District Court, M.D. Alabama, Southern Division
QUINCY B. JONES, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
KEITH WATKINS UNITED STATES DISTRICT JUDGE.
November 2018, Plaintiff Quincy B. Jones moved to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
(No. 18-cv-988, Doc. # 1.) The court entered an Order and Final
Judgment dismissing this action for lack of jurisdiction.
(No. 18-cv-988, Docs. # 3, 4.) Mr. Jones objects to
dismissal. (No. 18-cv-988, Doc. # 7.) But for the reasons
below, those objections are due to be overruled; the Order
and Final Judgment dismissing this action are due to remain
in full force and effect.
September 2011, Mr. Jones pleaded guilty to conspiring to
possess (with intent to distribute) a controlled substance in
violation of 21 U.S.C. § 846. (No. 11- cr-4, Doc. #
219.) And in September 2012, he pleaded guilty to using a
telephone with intent to commit a murder for hire, a
violation of 18 U.S.C. § 1958(a). (No. 12-cr-156, Doc. #
9.) His pleas were made in accordance with plea agreements in
which he generally waived his rights to appeal and to
collateral attack. (No. 11-cr-4, Doc. # 218, at 6; No.
12-cr-156, Doc. # 8, at 8.) The two criminal cases were
consolidated for sentencing, which was in November 2012.
the applicable sentencing guidelines, the court found that
Mr. Jones's base offense level was 37. See U.S.
Sentencing Commission, Sentencing Guidelines
§§ 2A1.5(a)-(b)(1), 2E1.4, 3D1.2 (Nov. 2012)
(“U.S.S.G.”). The court then granted a
three-level reduction for acceptance of responsibility and a
motion for a three-level downward departure. This left Mr.
Jones with a total offense level of 31. (No. 11-cr-4, Doc. #
325, at 31; No. 12-cr-156, Doc. # 20, at 31.)
court also found Mr. Jones had a criminal history category of
VI. (No. 11-cr-4, Doc. # 325, at 29-31; No. 12-cr-156, Doc. #
20, at 29-31.) That was based on the Presentence
Investigation Report's calculation that Mr. Jones had 15
criminal history points. (No. 11-cr-4, Doc. # 319, at 19-22;
No. 12-cr-156, Doc. # 18, at 19- 22.) Putting together Mr.
Jones's criminal history category and total offense
level, the court found that his sentencing guideline range
was from 188 to 235 months.
making these calculations, the court sustained an objection
to treating Mr. Jones as a “career offender”
under the guidelines. See U.S.S.G. § 4B1.1. One
supposed predicate conviction for sentencing Mr. Jones as a
career offender was his 2001 conviction for robbery - a crime
he committed when he was seventeen. Under United States
v. Wilks, 464 F.3d 1240 (11th Cir. 2006), and United
States v. Pinion, 4 F.3d 941 (11th Cir. 1993), the court
thought it would be justified in using that 2001 robbery
conviction to sentence Mr. Jones as a career offender.
Cf. United States v. Elliot, 732 F.3d 1307, 1313
(11th Cir. 2013) (per curiam) (holding a “youthful
offender” adjudication is a “conviction”
for purposes of the career offender enhancement). But because
Mr. Jones had a base offense level of 37 and a criminal
history category of VI without the career offender
enhancement, there was no need for the enhancement. It would
not have increased Mr. Jones's guideline range to find
that he was a career offender. As a result, the court
sustained the objection and found Mr. Jones was not a career
offender. (No. 11-cr-4, Doc. # 325, at 30; No. 12-cr-156,
Doc. # 20, at 30.)
court ultimately sentenced Mr. Jones to 200 months in prison
for the drug conspiracy conviction, which ran concurrently
with a 120-month sentence for the murder-for-hire conviction.
(No. 11-cr-4, Doc. # 317, at 2; No. 12-cr-156, Doc. # 16, at
Jones filed no direct appeal. But about a year after
sentencing, Mr. Jones filed two § 2255 motions. He
argued, among other things, that his Sixth Amendment right to
effective assistance of counsel had been violated.
(See No. 13-cv-801, Doc. # 1-1, at 13, 19-20, 22-24;
No. 13-cv-803, Doc. # 1-1, at 4, 9-10.) Two magistrate judges
filed Recommendations, and both concluded Mr. Jones was not
entitled to relief under the Sixth Amendment. (No. 13-cv-801,
Doc. # 10, at 6-13; No. 13-cv-803, Doc. # 11, at 7-9.) Mr.
Jones did not file objections to those Recommendations.
(Cf. No. 11-cr-4, Doc. # 362; No. 12-cr-156, Doc. #
33.) In 2015, the court adopted both Recommendations and
entered Final Judgment dismissing Mr. Jones's motions
with prejudice. (No. 13-cv-801, Docs. # 11, 12; No.
13-cv-803, Docs. # 12, 13.)
November 2018, Mr. Jones filed this § 2255 motion. (No.
18-cv-988, Doc. # 1.) He argues that since his attorney did
not object to the court's finding that he had a criminal
history category of VI, he was deprived of his Sixth
Amendment right to effective assistance of counsel.
(See No. 18-cv-988, Doc. # 1, at 4-7.) The
magistrate judge recommended dismissing this action for lack
of jurisdiction since Mr. Jones had not received permission
from the Eleventh Circuit to file a second or successive
§ 2255 motion. (No. 18-cv-988, Doc. # 2.) The court did
not receive timely objections to the Recommendation, and on
April 23, 2019, it entered an Order and a Final Judgment
dismissing this action. (No. 18-cv-988, Docs. # 3, 4.) But on
May 6, 2019, Mr. Jones asserted that he had not received the
Recommendation and was thus unable to file objections. (No.
18-cv-988, Doc. # 5.) The court granted leave to file
objections on or before May 28, 2019, which Mr. Jones did.
(No. 18-cv-988, Docs. # 6, 7.) Those objections argue that
the Supreme Court's decisions in Johnson v. United
States, 135 S.Ct. 2551 (2015), and Sessions v.
Dimaya, 138 S.Ct. 1204 (2018), apply retroactively to
him. (No. 18-cv-988, Doc. # 7, at 1-3.)
on April 16, 2019, Mr. Jones filed another § 2255
motion. (No. 19-cv-289, Doc. # 1.) In that motion, he also
argued that Johnson and Dimaya apply
retroactively to him. (No. 19-cv-289, Doc. # 1, at 1.) But on
April 26, 2019, the magistrate judge recommended dismissal
because the Eleventh Circuit had not given permission for a
second or successive motion. (No. 19-cv-289, Doc. # 2.) Mr.
Jones did not object to the Recommendation. The court adopted
the Recommendation and dismissed the action on May 28, 2019.
(No. 19-cv-289, Docs. # 3, 4.) As it turns out, Mr. Jones had
applied for permission from the Eleventh Circuit - a request
that court received on May 14, 2019. But on June 4, 2019, the
Eleventh Circuit denied permission for Mr. Jones to file a
second or successive motion. In re Jones, No.
19-11870, slip op. at 5 (11th Cir. June 4, 2019) (per
law is wary of second or successive motions by federal
prisoners.” In re Garrett, 908 F.3d
686, 688 (11th Cir. 2018). To file a second or successive
§ 2255 motion, therefore, a prisoner must receive
permission “from the appropriate court of
appeals.” Id. The court of appeals may not
grant leave unless the motion contains:
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would ...