United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
James J'Mori Jones, a federal prisoner, filed a motion
and memorandum (Docs. 52, 53) seeking to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner was the subject of a superseding indictment on
August 26, 2013, charging him with possession of a firearm by
a convicted felon, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2) (Count One); possession of an
unregistered firearm, in violation of 26 U.S.C. §§
5861(d) and 5871 (Count Two); possession of a controlled
substance with the intent to distribute, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(C) (Count Three); and
possessing a firearm in furtherance of a drug trafficking
offense, in violation of 18 U.S.C. § 924(c)(1)(B)(i)
(Count Four). (Doc. 14.) On December 11, 2013, Petitioner was
convicted after a jury trial of Count One, possession of a
firearm by a convicted felon, and was acquitted of Counts
Three and Four. (Doc. 25.) He was sentenced to fifty-four
months of imprisonment. (Doc. 30.) His appeal was
unsuccessful. See United States v. Jones, 622
Fed.Appx. 195, 198 (4th Cir. 2015). Petitioner next filed the
instant § 2255 motion and memorandum. (Docs. 52, 53.)
The Government filed a response. (Doc. 57.) Petitioner, in
turn, filed a reply. (Doc. 60.) The matter is now before the
Court for a ruling. See Rule 8, Rules Governing Section 2255
raises two grounds for relief. First, Petitioner contends
that counsel materially misadvised him, to his prejudice,
during the plea stage. (Pet'r's Mem. (Doc. 53) at 5
(“Absent counsel's advice, Petitioner would have
accepted a plea that would have been accepted by the court,
and the resulting sentence would have been less severe than
the one imposed[.]”).) Second, Petitioner contends that
he is actually innocent of constructively possessing the
firearm. (Id. at 10.) As explained further below,
the latter ground for relief has no merit and the former
ground for relief requires an evidentiary hearing.
Petitioner has not demonstrated his actual innocence
Petitioner's second ground for relief can easily be
resolved, the court addresses it first. Specifically,
Petitioner contends the firearm charged in the §
922(g)(1) violation in Count One belonged to someone else and
that he “is actually innocent of constructively
possessing a firearm.” (Pet'r's Petition (Doc.
52), Ground Two.) Petitioner contends that there was
insufficient evidence of constructive possession of the
firearm. (Id.; Pet'r's Mem. (Doc. 53) at
10.) Petitioner contends too that his admission to a police
officer that the firearm was his was insufficient for his
conviction since there was no corroborating evidence.
(Pet'r's Mem. (Doc. 53) at 11.)
raised this issue on appeal. The United States Court of
Appeals for the Fourth Circuit rejected this issue as
meritless. Specifically, that court reasoned:
During a police search of a home belonging to a friend of
Jones, officers found a shotgun in the kitchen closet. Jones
was present at the time of the search. When the shotgun was
discovered, Jones stated that the gun was his. Officers never
had the gun checked for fingerprints or tested for DNA. At
trial, Jones testified that he lied to police when saying the
gun was his because he did not want his friend to get in
We review challenges to the sufficiency of evidence de novo.
United States v. Roe, 606 F.3d 180, 186 (4th Cir.
2010). “The standard for reversing a jury verdict of
guilty is a high one: the Court does so only where the
prosecution's failure is clear.” United States
v. Perry, 757 F.3d 166, 175 (4th Cir. 2014) (internal
quotation marks omitted), cert. denied, ___ U.S. ___, 135
S.Ct. 1000, 190 L.Ed.2d 875 (2015). “The jury's
verdict must be upheld on appeal if there is substantial
evidence in the record to support it, where substantial
evidence is evidence that a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of
a defendant's guilt beyond a reasonable doubt.”
Id. (internal quotation marks omitted). In assessing
evidentiary sufficiency, the evidence and reasonable
inferences drawn therefrom are viewed in the light most
favorable to the Government. Id. We do not reassess
the jury's determinations of witness credibility.
United States v. Kelly, 510 F.3d 433, 440 (4th Cir.
Jones conceded at trial that he told police the gun was his,
which was supported by the officer's testimony.
Additionally, the officer testified that Jones later endorsed
his admission at the sheriff's office. In reaching its
verdict, the jury made a credibility determination as to the
inconsistency between Jones's statement to police and his
trial testimony, a determination that is not subject to our
review. Therefore, Jones has not established that the
evidence was insufficient.
Jones, 622 Fed.Appx. at 197 (footnote omitted).
raised and fully addressed on direct appeal cannot be
reargued in a collateral proceeding. See Boeckenhaupt v.
States, 537 F.2d 1182, 1183 (4th Cir. 1976). The court
concludes that this issue was raised and fully addressed on
direct appeal. This court cannot overrule the Fourth Circuit
on this issue and, therefore, this issue cannot be reargued
in this proceeding. Nevertheless, even if the court could
address this issue, it would reach the same conclusions as
the Fourth Circuit for the same reasons expressed by the
Fourth Circuit. Petitioner's arguments to the contrary
are not persuasive. (Pet'r's Reply (Doc. 60) at 6-9.)
Petitioner fails to take into account the requirement that
the evidence, at this stage, be viewed in the light most
favorable to the Government. (See, e.g., Trial Tr. Vol. 1
(Doc. 37) at 44 and 48; Trial Tr. Vol. 2 (Doc. 40) at 106.)
He also fails to take into consideration ...