USA v. Jones

IN THE UNITED STATES DISTRICT COURT
FOR WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CRIMINAL CASE NO. 1:19-cr-00067-MR-WCM
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
JAMES KEVIN JONES, )
)
Defendant. )
________________________________ )
THIS MATTER is before the Court on initial review of Defendant’s
original and Amended Pro Se Motions to Vacate Sentence under 28 U.S.C.
§ 2255. [Docs. 40, 42].
I. BACKGROUND
On July 17, 2019, Defendant James Kevin Jones (“Defendant”) was
charged in a Bill of Indictment with three counts of distribution of
methamphetamine in violation of 21 U.S.C. § 841(a)(1) (Counts One, Two,
and Six); two counts of possession of methamphetamine with the intent to
distribute in violation of 21 U.S.C. § 841(a)(1) (Counts Three and Seven);
one count of possession of a firearm in further of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A) (Count Four); and one count of being a
felon-in-possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count
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Five). [Doc. 1: Bill of Indictment]. Defendant agreed to plead guilty to Count
Three and the Government agreed to dismiss the remaining Counts. [Doc.
14: Plea Agreement]. Among other things, the parties also agreed that the
career offender guideline, U.S.S.G. §4B1.1, may be used in determining
Defendant’s sentence if warranted by Defendant’s criminal history. [Id. at ¶
8(f)].
Before sentencing, a probation officer prepared a Presentence
Investigation Report (PSR). [Doc. 23: PSR]. In the PSR, the probation
officer set out Defendant’s extensive criminal history, including several North
Carolina controlled substance offenses that were consolidated for judgment
and for which Defendant was sentenced to 14 to 17 months’ incarceration,
as well as convictions for Sell or Deliver Counterfeit Controlled Substance
and Possession With Intent to Sell/Distribute Counterfeit Controlled
Substance (“PWISDCCS”), which were also consolidated for judgment and
for which Defendant received a suspended sentence of 4 to 14 months’
imprisonment and 18 months’ supervised probation. [Id. at ¶¶ 64-65, 68].
On December 17, 2015, Defendant’s suspended sentence was activated
when his probation was revoked for various probation violations, and he was
sentenced to a term of 4 to 14 months’ imprisonment. [Id. at ¶ 68].
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Based on Defendant’s criminal history, the probation officer
recommended that Defendant was a career offender, U.S.S.G. §4B1.1(a)(2),
with an offense level of 34, U.S.S.G. §4B1.1(b)(2). [Id. at ¶ 39]. After a
reduction of three levels for acceptance of responsibility, the probation officer
recommended a total offense level of 31. [Id. at ¶ 42]. Based on Defendant’s
total offense level of 31 and criminal history category of six, the probation
officer recommended a guidelines range of 188 to 235.1 [Id. at ¶¶ 42, 75,
136]. The Court adopted the PSR as written and sentenced Defendant to a
term of imprisonment of 188 months. [Doc. 27 at 2: Judgment; Doc. 28:
Statement of Reasons]. Judgment on Defendant’s conviction was entered
on March 25, 2020. [Id. at 1]. Defendant did not file a direct appeal.
On or about March 10, 2026, Defendant filed a pro se motion to vacate
under § 2255, which was not signed under penalty of perjury or on the proper
form. [Doc. 40; see Doc. 40-2]. On this Court’s Order to correct these
deficiencies, Defendant filed the pending pro se Amended Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. [Docs. 41, 42]. As grounds for relief, Defendant argues
that one of the charges used for the career offender enhancement was not
1 Without the career offender enhancement, Defendant’s total offense level would have
been 27, yielding a guidelines range of 130 to 162.
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a Schedule II Controlled Substance “of any kind.” [Doc. 42 at 4]. Defendant
further contends that his conviction for PWISDCCS does not qualify as a
career offender predicate under United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc),2 and U.S.S.G. §4B1.2(b). [Doc. 42-1 at 1-3].
Defendant argues that if his attorney had objected to the career offender
designation under Simmons the Court would have rejected the
enhancement. [Id. at 3].
Defendant contends that his motion is not barred by AEDPA’s one-
year limitations period because “new information was brought just recently
to [his] attention.” [Id. at 11]. For relief, Defendant asks that his sentence be
vacated and that he be resentenced without the career offender designation.
[Doc. 42-1 at 8].
II. STANDARD OF REVIEW
A federal prisoner claiming that his “sentence was imposed in violation
of the Constitution or the 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
2 In Simmons, the Fourth Circuit held that, for a prior felony conviction to serve as a
predicate offense for sentencing enhancement under the Controlled Substances Act, the
individual defendant must have been convicted of an offense for which that defendant
could be sentenced to a term exceeding one year. Simmons, 649 F.3d at 243.
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collateral attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.” 28 U.S.C. § 2255(a).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along with “any
attached exhibits and the record of prior proceedings . . .” to determine
whether the petitioner is entitled to any relief on the claims set forth therein.
After examining the record in this matter, the Court finds that Petitioner’s
motion can be resolved without an evidentiary hearing based on the record
and governing law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir.
1970).
III. ANALYSIS
In 1996, Congress enacted the Antiterrorism and Effective Death
Penalty Act (the “AEDPA”). Among other things, the AEDPA amended 28
U.S.C. § 2255 by imposing a one-year statute of limitations period for the
filing of a motion to vacate. Such amendment provides:
A 1-year period of limitation shall apply to a motion
under this section. The limitation period shall run
from the latest of-
(1) the date on which the judgment of conviction
becomes final;
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
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removed, if the movant was prevented from making
a motion by such governmental action;
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2255(f).
Defendant’s conviction here became final for purposes of Section
2255(f)(1) on April 8, 2020, when his deadline to appeal expired. See Fed.
R. App. P. 4(b)(1)(A); United States v. Clay, 537 U.S. 522, 524-25 (2003)
(when a defendant does not appeal, his conviction becomes final when the
opportunity to appeal expires). Defendant, however, did not file the instant
motion to vacate until March 10, 2026, nearly six years after his conviction
became final. As such, Defendant’s motion is untimely unless he is entitled
to equitable tolling. See 28 U.S.C. § 2255(f)(1).
To be entitled to equitable tolling, “an otherwise time-barred petitioner
must present ‘(1) extraordinary circumstances, (2) beyond his control or
external to his own conduct, (3) that prevented him from filing on time.’”
United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (quoting Rouse v.
Lee, 339 F.3d 238, 246 (4th Cir. 2003), cert. denied, 541 U.S. 905, 124 S.
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Ct. 1605 (2004)). A petitioner must show he has been “pursuing his rights
diligently.” Holland v. Florida, 560 U.S. 631, 649 (2010). Further, equitable
tolling is limited to “rare instances – where due to circumstances external to
the party’s own conduct – it would be unconscionable to enforce the limitation
period against the party and gross injustice would result.” Whiteside v.
United States, 775 F.3d 180, 184 (4th Cir. 2014) (quoting Rouse v. Lee, 339
F.3d 238, 246 (4th Cir. 2003)).
Here, Defendant contends that the one-year limitations period does not
bar his motion because he only recently learned of “new information.” [Doc.
42 at 12]. Defendant has plainly failed to show that he is entitled to equitable
tolling. Defendant does not show that he was prevented from filing on time
due to extraordinary circumstances, that he was pursuing his rights diligently,
or that enforcing the limitations period against him would cause gross
injustice. Because Defendant addressed the timeliness issue in his motion
to vacate, the Court need not provide Defendant any additional opportunities
to address this issue. See Whitener v. United States, No. 3:14-cv-600-MOC,
2014 WL 7339188 (Dec. 23, 2014); Cureton v. United States, 2007 WL
1651437, n.1 (W.D.N.C. June 2, 2007). As such, Defendant’s claim is
untimely under § 2255(f). The Court will, therefore, dismiss Defendant’s
motion to vacate on initial review.
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IV. CONCLUSION
For the reasons stated herein, Defendant’s Amended Section 2255
motion is untimely and is denied and dismissed with prejudice. The Court
will dismiss Defendant’s original Section 2255 motion as moot.
The Court further finds that Defendant has not made a substantial
showing of a denial of a constitutional right. See generally 28 U.S.C. §
2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (to
satisfy § 2253(c), a “petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85
(2000)). Defendant has failed to demonstrate both that this Court’s
dispositive procedural rulings are debatable, and that the Motion to Vacate
states a debatable claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. at 484-85. As a result, the Court declines to issue a
certificate of appealability. See Rule 11(a), Rules Governing Section 2255
Proceedings for the United States District Courts, 28 U.S.C. § 2255.
ORDER
IT IS, THEREFORE, ORDERED that Defendant’s Amended Motion to
Vacate Sentence under 28 U.S.C. § 2255 [Doc. 42] is DENIED and
DISMISSED WITH PREJUDICE.
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IT IS FURTHER ORDERED that Defendant’s Motion to Vacate
Sentence under 28 U.S.C. § 2255 [Doc. 40] is DISMISSED as moot.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court declines to
issue a certificate of appealability.
IT IS SO ORDERED. Signed: April 25, 2026
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