United States District Court, W.D. Tennessee, Western Division
ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255, DENYING CERTIFICATE OF APPEALABILITY CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
JON PHIPPS McCALLA, Chief District Judge.
Before the Court is the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 Motion") filed by Movant, Donald Gibbs, Bureau of Prisons register number XXXXX-XXX, an inmate at the Federal Correctional Institution Medium in Yazoo City, Mississippi. (§ 2255 Mot., Gibbs v. United States, No. 2:14-cv-02402-JPM-dkv (W.D. Tenn.), ECF No. 1.) For the reasons stated below, the Court DENIES Movant's § 2255 Motion.
A. Case Number 10-20053
On January 26, 2010, a federal grand jury returned a two-count indictment against Gibbs. (Indictment, United States v. Gibbs, No. 2:10-cr-20053-JPM (W.D. Tenn.), ECF No. 1.) Count 1 charged that Gibbs, a convicted felon, possessed a Smith & Wesson.40 caliber semi-automatic firearm on or about December 10, 2009, in violation of 18 U.S.C. § 922(g). Count 2 charged that Gibbs, being an unlawful user of and addicted to a controlled substance, possessed a Smith & Wesson.40 caliber semi-automatic pistol on or about December 10, 2009, in violation of 18 U.S.C. § 922(g). The factual basis for these charges is stated in the presentence report ("PSR"), and in part repeated below:
4. According to the investigative file on December 10, 2009, at 3:10 p.m., Memphis Police Officers arrived at 4814 Tulane Road in Memphis, TN after receiving a tip... [that] Donald Gibbs, had an outstanding warrant, and could be found at the location.... The officers entered [Donald Gibb's] room and apprehended Donald Gibbs. As officers were effecting the apprehension, a firearm was observed on the bed, protruding from underneath the pillow where Donald Gibbs had been sleeping. The firearm was found to be a Smith & Wesson.40 caliber pistol (serial #PBV6459) loaded with one round in the chamber and nine rounds in the magazine. Donald Gibbs stated that it was not his firearm. Upon checking, officers discovered that the recovered firearm had been reported stolen out of Southaven, MS.
5. Case investigators confirmed that prior to December 10, 2009, Donald Gibbs had been convicted of a felony. The Smith and Wesson pistol recovered by officers on December 10, 2009 was examined by a federal agent who determined that the firearm had not been manufactured in the State of Tennessee. [I]nformation regarding Donald Gibbs' history of using controlled substances [was later obtained].
(PSR ¶¶ 4-5.)
Pursuant to a written Plea Agreement, Gibbs appeared before this Court on March 3, 2011, to plead guilty to Count 1 of the Indictment. (Min. Entry, United States v. Gibbs, No. 2:10-cr-20053-JPM (W.D. Tenn.), ECF No. 59; Plea Agreement, id., ECF No. 62.) The Plea Agreement provided, in pertinent part, that "[t]he United States agrees to recommend that the court impose a term of 180 months imprisonment." (Plea Agreement at 2, id., ECF No. 62.) At a hearing on June 3, 2011, the Court sentenced Gibbs as an armed career criminal to a term of imprisonment of one hundred eighty months. (Min. Entry, id., ECF No. 65.) Judgment was entered on June 3, 2011. (J. in a Criminal Case, United States v. Gibbs, No. 2:10-cr-20053-JPM (W.D. Tenn.), ECF No. 66.) Gibbs did not take a direct appeal, having waived the right to do so ( see Plea Agreement at 2, id., ECF No. 62.).
B. Case Number 14-2402
On May 29, 2014, Gibbs filed his pro se § 2255 Motion. (§ 2255 Mot., Gibbs v. United States, No. 2:14-cv-02402-JPM-dkv (W.D. Tenn.), ECF No. 1.) The sole issue presented is whether Movant's sentence was imposed in violation of the Sixth Amendment in light of the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013).
II. THE LEGAL STANDARD
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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 sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to ...