United States District Court, E.D. Kentucky, Northern Division, Covington
B- ATKINS UNITED STATES MAGISTRATE JUDGE.
Johnathan Sexton (a federal inmate) filed a pro se
motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255. DE 148 (Motion). Per normal
practice, this matter is before the undersigned for a
recommended disposition. Upon full review, and in accordance
with Rule 4(b) of the Rules Governing Section 2255
Proceedings, the undersigned hereby RECOMMENDS that
Sexton's §2255 request for relief be DENIED.
FACTS AND PROCEDURAL HISTORY
December 3, 2012, Sexton pleaded guilty to a one-count
indictment for making false, fictitious, and fraudulent
statements to a federal agency in violation of 18 U.S.C.
§ 1001. [DE 1 (indictment; DE 19 (minute entry for
rearraignment)]. On March 25, 2013, Sexton was sentenced to
nine months of imprisonment and three years of supervised
release. [DE 30 (minute entry for sentencing) DE 32
(judgment)]. This sentence was made consecutive to a state
court, thirty-month sentence, received after being convicted
of possessing weapons while under a disability.
November 26, 2013, in affirming this court's judgment,
the United States Court of Appeals for the Sixth Circuit
noted that Sexton's attorney had filed a motion to
withdraw, as well as an Anders brief, which
“indicat[ed] that there [we]re no colorable issues to
appeal.” [DE 42 (citing Anders v. California,
386 U.S. 738, 744 (1967)]. In reviewing the imposition of the
sentence, the Sixth Circuit: (1) found that the waiver of the
right to appeal in the plea agreement was valid, since entry
of the plea was done voluntarily and while he was competent;
(2) recognized that there were no objections to the
presentence report (PSR); and (3) concluded that the sentence
imposed adequately fell within the applicable guidelines
range [Id. at 2-3]. Sexton did not then seek §
2255 relief. He did, however, file several motions seeking to
modify his sentence, as well as either amend the conditions
of his supervised release or terminate supervised release
altogether. See generally DE 44, 46, 50; 52; 56; 65.
three-year term of supervised release began on February 1,
2016. In August 2017, a summons was issued after the
probation officer alleged that Sexton had violated the
condition of his supervised release requiring him to
“answer truthfully all inquiries by the probation
officer and follow the instructions of the probation
officer.” [DE 69; 70]. This same month, it was also
reported that Sexton had allegedly violated a condition of
his supervised release by committing a new law violation
(e.g., Kentucky Revised Statutes § 525.080).
Ultimately, on November 6, 2018, following several
continuances and motion hearings, the Court revoked
Sexton's supervised release and sentenced him to twelve
months and one day of imprisonment for each violation, to be
served concurrently, and no further supervised release.
See DE 128 (amended judgment).
appealed (DE 130), arguing that “that (1) the
government failed to prove that he committed such conduct in
Kentucky … and (2) even if the government did prove a
violation of Kentucky Revised Statutes § 525.080, the
statute is unconstitutionally vague.” [DE 146 at 3].
After carefully analyzing both claims, the Sixth Circuit
affirmed this court's revocation judgment. [Id.
this instant § 2255 action, filed on June 20, 2019,
raises three arguments. First, he claims that there is no
evidence to show that he committed this new law violation.
[DE 148 at 4-7]. Next, he argues that the court erred in
establishing guilt because it used a “404b
standard.” Id. at 12-15. Finally, he asserts
that a sentencing disparity exists among other, similar
defendants. Id. at 16-18. This matter is ripe for
review and adjudication.
STANDARD OF REVIEW
incumbent upon a federal prisoner seeking relief under 28
U.S.C. § 2255 to show that his conviction was the
product of a fundamental defect in the proceedings, which
necessarily resulted in a complete miscarriage of justice or
an egregious error violative of due process. Gall v.
United States, 21 F.3d 107, 109 (6th Cir. 1994).
Pursuant to § 2255, a petitioner may seek habeas relief
on grounds that his conviction or sentence violated the
Constitution or laws of the United States, the court was
without jurisdiction to impose the sentence, the sentence was
in excess of the maximum authorized by law, or is otherwise
subject to collateral attack. See 28 U.S.C. §
order to prevail on his motion, the petitioner must
demonstrate the existence of an error of constitutional
magnitude, which had a substantial and injurious effect or
influence on the guilty plea or the jury's verdict.
Griffin v. United States, 330 F.3d 733, 737 (6th
Cir. 2006) (citing Brecht v. Abrahamson, 507 U.S.
619, 637 (1993)). If the movant alleges a constitutional
error, he must establish by a preponderance of the evidence
that the error “had a substantial and injurious effect
or influence on the proceedings.” Watson v. United
States, 165 F.3d 486, 488 (6th Cir. 1999) (citing
Brecht, 507 U.S. at 637-38); see also Pough v.
United States, 442 F.3d 959, 964 (6th Cir. 2006).
Alternately, if alleging a non-constitutional error, the
defendant must establish “a fundamental defect which
inherently results in a complete miscarriage of justice . . .
an error so egregious that it amounts to a violation of due
process.” Watson, 165 F.3d at 488 (citing
United States v. Ferguson, 918 F.2d 627, 630 (6th
brings three claims in his § 2255 motion. As described
closely below, all of these claims fail here, providing this
petitioner no habeas relief.
1 has already been reviewed on appeal.
Sexton argues that there is no evidence that he violated
Kentucky's harassing communications statute, KRS §
525.080. [DE 148 at 4-7]. This same claim was considered by
the Sixth Circuit on appeal. See DE 146. Therein, the
Court analyzed the applicable evidence against Sexton,
determining that, based on the preponderance-of-the-evidence
standard, there was indeed sufficient evidence to conclude
that Sexton had committed the offense of harassing
communications, in violation of the challenged statute.
Id. at. 5. Therefore, because a § 2255 motion
may not be employed to relitigate an issue that was raised
and considered on direct appeal- absent highly exceptional
circumstances, such as an intervening change in the
law-Sexton's first claim fails. Wright v. United
States, 182 F.3d 458, 467 (6th Cir. 1999); Jones v.
United States, 178 F.3d 790, 796 (6th Cir. 1999).
default of grounds 2 & 3.
Sexton's final two claims, he argues the court erred in
establishing guilt because it used a “404b standard,
” and also insists that a sentencing disparity exists
among other, similar ...