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United States v. Sexton

United States District Court, E.D. Kentucky, Northern Division, Covington

July 8, 2019




         Defendant/Movant Johnathan Sexton (a federal inmate) filed a pro se motion[1] 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[2], the undersigned hereby RECOMMENDS that Sexton's §2255 request for relief be DENIED.


         On 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.

         On 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.

         The 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).

         Sexton 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. at 6].

         Now, in this instant § 2255 action, filed on June 20, 2019, [3] he 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.


         It is 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. § 2255(a).

         In 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 Cir. 1990)).

         III. ANALYSIS

         Sexton brings three claims in his § 2255 motion. As described closely below, all of these claims fail here, providing this petitioner no habeas relief.

         Ground 1 has already been reviewed on appeal.

         First, 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.[4] 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).

         Procedural default of grounds 2 & 3.

         In 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 ...

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