United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT COURT JUDGE
the Court is Movant Jabril Jones's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (the “§ 2255
Motion”). (§ 2255 Mot., ECF No. 1.) Also before
the Court are Jones's six supplements and amendments to
his original § 2255 Motion, filed without leave (ECF
Nos. 7, 9, 18-19, 21-22); Jones's three motions to amend
his original § 2255 Motion (ECF Nos. 12, 15-16); and
Jones's motion for relief from judgment under Federal
Rule of Civil Procedure 60(b) (ECF No. 14).
following reasons, the § 2255 Motion is DENIED.
Jones's request for relief under Johnson v. United
States, 135 S.Ct. 2551 (2015), motions to amend, and
motion for relief under Rule 60(b) are also DENIED.
September 30, 2009, a grand jury returned an indictment
charging Jones with one count of knowingly possessing a
firearm after having been convicted of a crime punishable by
imprisonment for a term exceeding on year, in violation of 18
U.S.C. § 922(g). (Indictment, Cr. ECF No.
The factual basis for that charge is stated in the
Presentence Investigation Report (“PSR”):
The Offense Conduct
4. On Friday July 3, 2009, John Novotny was walking eastbound
on Brooklyn Street in Memphis, Tennessee, when a male armed
with a chrome revolver came up from behind him and stated
"drop it off." Novotny turned around and observed
he was being threatened at gunpoint. Novotny stated he did
not have any money and the male threatened to shoot him.
Novotny tried to run away and threw two liquor bottles at the
male suspect who then shot Novotny in the back and fled the
scene. Novotny was transported to the MED in critical
condition. Upon further investigation, Jabril Sidney
Jones was developed as a suspect. Investigating
officers went to 1227 Garfield and made contact with Geneva
Smith who was Jones' girlfriend. Smith
advised that Jones was hiding in the rear of
the home, but upon searching, officers were unable to locate
Jones who had fled out the back door. Upon
questioning, Geneva Smith reported that Jabril
Jones came home and stated "I fucked up, I
fucked up." Jones told her that he
tried to rob a man and ended up shooting him because he had a
bottle and attempted to throw it at him. Smith indicated that
she knew Jones to have a .40 caliber and a
revolver. She reported that Jones had
indicated he was going to attempt to retrieve or destroy the
video from a convenience store where he first observed the
victim with money.
5. On Saturday, July 4, 2009, John Novotny positively
identified Jabril Sidney Jones from a photo
lineup as the person responsible for the shooting. Police
officers returned to 1227 Garfield to locate
Jones. Officers made contact with Geneva
Smith, and discovered that Jabril Jones was
hiding in the attic. After several minutes of talking with
Jones, officers finally convinced him to
come down from the attic and he was taken into custody
without incident. After taking Jones into
custody, officers searched the residence and found a
silver/chrome Smith and Wesson .38 caliber revolver and 27
.38 caliber rounds of ammunition hidden in the lining of the
couch. Geneva Smith told officers that the .38 caliber
revolver belonged to Jones who had put it in
6. A federal agent subsequently examined the Smith and Wesson
.38 caliber revolver (serial #58084) which was recovered from
the couch at 1227 Garfield on July 4, 2010. The agent
determined that the revolver had not been manufactured in the
State of Tennessee. It was further confirmed that
Jabril Jones had a conviction for a felony
prior to July 3, 2000.
(PSR ¶¶ 4-6.)
September 15, 2010, a jury convicted Jones of violating 18
U.S.C. § 922(g). (Cr. ECF No. 34.) At sentencing, the
Court determined that Jones's base offense level was 37
and his criminal history category was IV. (See PSR
¶ 60.) Jones was sentenced to the statutory maximum of
120 months in prison followed by three years of supervised
release. (Judgment, Cr. ECF No. 46.)
April 22, 2016, Jones filed a notice of appeal. (Cr. ECF No.
63.) On April 28, 2016, the Court of Appeals for the Sixth
Circuit dismissed Jones's appeal as untimely. (Cr. ECF
No. 64 at 111.)
September 19, 2016, Jones filed this § 2255 Motion. (ECF
No. 1.) Jones filed supplements without leave on October 11,
2016 (ECF No. 7) and November 4, 2016 (ECF No. 9).
November 7, 2016, the Court directed the Government to
respond to Jones's § 2255 Motion. (ECF No. 10.) The
Government filed its response on November 9, 2016. (ECF No.
November 14, 2016, Jones filed a motion to amend. (ECF No.
12.) On November 21, 2016, Jones filed a motion for relief
from judgment under Federal Rule of Civil Procedure 60(b).
(ECF No. 14.) The same day, Jones filed a notice of
amendment. (ECF No. 15.) On November 28, 2017, Jones filed a
second notice of amendment. (ECF No. 16.) The Court construes
Jones's notices of amendment as motions to amend.
December 7, 2016, Jones filed a reply to the Government's
response to his § 2255 Motion. (ECF No. 17.)
filed two affidavits: one on April 24, 2017 and the other on
April 26, 2017. (ECF Nos. 18-19.) He filed supplemental
arguments on May 16, 2017 (ECF No. 21), and on May 18, 2016
(ECF No. 22).
Section 2255 Motion
seeks relief under 28 U.S.C. § 2255. (§ 2255 Mot.)
Under § 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
sentence was in excess of the maximum authorized by law . . .
may move the court which imposed the sentence to vacate, set
aside or correct the sentence.
28 U.S.C. § 2255(a).
succeed on a § 2255 motion, a prisoner in custody must
show ‘(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.'” McPhearson v.
United States, 675 F.3d 553, 558-59 (6th Cir. 2012)
(quoting Mallett v. United States, 334 F.3d 491,
496-97 (6th Cir. 2003)).
prisoner must file his § 2255 motion within one ...