UNITED STATES COURT OF APPEAL IN AND FOR THE SIXTH CIRCUIT JOHNATHAN MICHAEL ALEXANDER, Petitioner/Defendant, -Vs- Case No. UNITED STATES OF AMERICA, Respondents/Plaintiffs, MOTION FOR CERTIFICATE APPEAL 28 U.S.C. SECTION 2255 COMES NOW, the petitioner/defendant acting in Pro-Se petitioning this Honorable Court for a Certificate of Appeal. Defendant Johnathan Michael Alexander, moves this Court to grant leave and permit the filing of a motion to vacate, correct, or set aside his sentence under 28 U.S.C. 2255, This request for leave to file a out of time 2255 motion should he granted. A COA is a jurisdictional pre-requisite to review. (Miller-El v. Cockrell 537 U.S. 322, 336, 123 1029, 154 2d 931.) A COA can only be issued if the petitioner/defendant establishes a "substantial showing of a nial of a constitutional ri ht." Petitioner here in the Dase 3:06-cr-00134 Document 36 Page 1 of 9 PageID #282 instant matter contends his due process rights have been violated which resulted in the erroneous conviction of an innocent man. See Miller, 141 F.3d at 978 (citing Schlup v. Delo, 513 U.S. 298, 323, 329 ll5 851, 130 L. Ed. 2d 808 (1995). Although section 2255 requires that the AEDPA statute of limitations is met within one year of a prisoner's finalized conviction, this court nonetheless has the discretion to permit a filing after that time period has expired, pursuant to the doctrine of equitable tolling. Taliani v. Crans, 189 F.3d 597, 598 (7th Cir 1999) one year deadline is not jurisdictional and therefore equitable tolling is available). STATEMENT OF PREFERENCE The petitioner/defendant ask this court to liberally construe this motion in light of the Supreme Court ruling in Hains V. Derner, 404 U.S. 459, 30 L. Ed 652 (1972), which allows a pro- se litigant liberal aids especially when one is in prison filing in his own behalf. Petitioner/defendant would request that he not be barred from an appropriate remedy because he may mis-style his motions. "See: United States V. Morgan, 346 F. 2d The court should construe it as whatever proceedings are proper under the circumstances and decide it on its own merit. The defendant does not challenge the Constitutionality of the guilty plea that he entered into. The petitioner pled Case 3:06-cr-00134 Document 36 Filed Page 2 of 9 Page|D 83 guilty to the charge of ex-felon in possession of a firearm. This plea was entered in good faith and the defendant has willingly accepted the full responsibility for his actions. CASE HISTORY Petitioner/defendant Alexander was convicted of possession of a firearm by a convicted felon in violation of title 18 U.S.C. 922 (G) (1). Petitioner was sentenced to 180 months in prison after the United States District Court, Eastern District of Tennessee, ascertained that petitioners guilty plea was valid and accepted. As a result of the court accepting the petitioners guilty plea, the court also accepted the Pre Sentencing Investigation report as being true and correct in depicting the petitioners prior criminal history. The attorney of record never objected to the information contained in the PSI report and the petitioner was consequently charged as a career offender CAUSE OF ACTION ACTUAL INNOCENCE INEFFECTIVE ASSISTANCE OF COUNSEL RESPONSE TO POINT PETITIONER WAS 18 years of age and charged with (3) counts of breaking and entering, (2) two counts of larceny, and one (1) count of attempted larceny. All these counts were classified as class felonies in the state of North Carolina and carry a maximum punishment of thirty (30) months each with the exception of the attempted larceny that carries a maximum punishment of fifteen (15) Case 3:06-cr-00134 Document 36 Filed Page 3 of 9 PageID 84 months. The maximum punishment possible is one hundred sixty five (165) months. In the instant matter petitioner/defendant Jonathan Michael Alexander pled guilty to the following sentences:Defendant's prior convictions occurred in the same locality and were of the same crime spree that with respect to the offenses of a character for which 3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions and were part of the same course of conduct or common scheme or plan as the same offenses of conviction. Defendant Johnathan Michael Alexander entered a guilty plea on May 27, 2002 and all of the criminal charges were consolidated. Enclosed is a copy of the transcript of the plea. This is marked as exhibit paragraph 14. Also enclosed is a copy of the Judgement sentencing the defendant to a term of eight (8) months minimum for a term of (10) months maximum this is marked as Exhibit paragraph 6. The defendant received two ten (10) month sentences and two eight (8) month sentences and was given a 36 month probation. The other counts were dismissed. Petitioner/defendant asserts that the district court erred in alternatively finding that petitioner/defendant is a defacto career offender. In light of the Fourth Circuit Court of Appeals decision in United States v. Rivers, 595 F. 3d 558 2010 is appliciable to the instant matter. Petitioner/defendant Alexander are not crimes of violence nor do the sentences imposed exceed the term of one (1) year. The term "two prior felony convictions" means (1) the defendant committed the instant offense of conviction subsequently to sustaining at least two felony convictions of 1 51535 Either of these offenses controlled substance or crime of violence constitute the appropriate criminal offenses in which case the career offender and or the ACCA can be applied. Herein the petitioner/defendant has made a prima facie showing that he is entitled to relief. The new rule of law made retroactive (United States v. Simmons, No. O8-4475, 2011 U.S. App. Lexis 2989, 2011 WL 54625 "Feb CONCLUSION Further, Petitioner/Defendant prays this Honorable Court will liberally construe the pleadings of this pro-se litigant and give his issues full consideration, even though his unartful pleadings may not meet the exacting standards of counsel, and grant such relief as deemed appropriate in the premises. The petitioner/defendant should be granted an evidentiary hearing to prove the inadequacy of the record and substantiate his claim that the attorney of record was ineffective in his representation of the petitioner/defendant at the time the guilty plea was initiated. Petitioner attorney made no objections or investigations of the predicates used for the enhancement purposes. Upon review of the records the petitioner cause of action is clearly documented with facts of the records. RELIEF Case 3:06-cr-00134 Document 36 Filed Page 5 of 9 Page|D 86 WHEREFORE, in light of the above, Petitioner respectfully requests that his request for relief is granted. Sentence vacated and set aside. Respectfully Submitted By, Joh than ael >>exa der .f I Case 3:06-cr-00134 Document 36 Filed Page 6 of 9 PageID 87 CERTIFICATE OF SERVICE IT IS CERTIFIED THAT A TRUE AND CORRECT COPY OF THE FOREGOING PETITION FOR CERTIFICATE OF APPEAL WAS SENT TO THE UNITED STATES COURT OF APPEALS IN AND FOR THE SIXTH CIRCUIT, AND THE UNITED STATES DISTRICT COURT FOR KNOXVILLE TENESSEE, ON THIS OF Case 3:06-cr-00134 Document 36 Filed Page7of9 Page|D 88 STATE OF NORTH CAROLINA (HCRS058372 51 IREDELL Count STATESVILLE Seat of Court In The General Co NOTE: his form rs to be used for (1) felony offense(s), and (2) misdemeanor offense(s), which are urt of Justice consolidated for judgment with any felony offenseisl. Lise AOC-CR-310 for DWI ij District Superigr Court Division STATE vsnsus Name Omefendam A JUDGMENT suspsnonvc sentence - FELDNY INIPOSING AN INTERMEDIATE PLINISHNIENT DOB lj ||v|Pos|Nc A corvnviunitv PUNISHMENT SENTENCING) 05/19/1931 ds. 1sA~1341, -1342, -1343, -1346 Attorney For State Attorney For Defendant Defi Found Def Waived WINTHROP SAMUEL Appointed Ei Retained The defendant pled guilty to: ij was found guilty by a jury of: pled no contest to: File No.ls) Offense Description offenee Date ct, otcnsosszm BREAKING AND OR ENTERING (P) 09/01/2001 01CRS058372 52 LARCEN AFTER 09/01/2001 The Court: 1. has determined, pursuant to G.S. 15A-1340.14-, the prior record points of the defendant to be 3 PWGR Cl 1 E111 DV 2. makes no prior record level finding because none is required. RECORD II IV EVE The ili makes no written findings because the prison term imposed is within the presumptive range of sentences authorized under G.S. 15A-134O.17lel. 2. makes the Findings of Aggravating and Mitigating Factors set forth on the attached AOC-CR-605. 3. makes the Findings of Extraordinary Mitigation set forth on the attached AOC-CR-606. 4. finds the defendant has provided substantial assistance pursuant to G.S. 90-95lhll5). 5. finds enhanced punishment from a Class A1 or Class I misdemeanor to a Class I felony. lj ss. eo-esleirsi ldrugsl; Ll c.s_ 14-sic) (hate Crime). 6. imposes the punishment pursuant to a plea arrangement as to sentence under Article 58 of G.S. Chapter 15A. 7. finds the above designated offenseslsl is a reportable conviction involving a minor. G.S. 14-208.6. 8. finds the defendant is classified as a sexually violent predator. G.S. 14-208.20. The Court, having considered evidence, arguments of counsel and statement of defendant, finds that the defendant's plea was fieely, voluntarily, i I .ftff re s# .sg rders th above for `ud ment and the defendant be im risoned I - in the custody of N.C. DOC. 'Li This sentence shall run at the expiration of sentence imposed in file number The defendant shall be given credit for days spent in the confinement prior to the date of this Judgment as a result of this s) to be ed toward the sen ce imposed above.E imprisonment required for special prob on ort -603, ge Two. With ij Without* the consent of the defendant and subject to the conditions set out below, the execution of this sentence is suspended and the defendant is placed on Supervised unsupervised probation for 36 m0mh5_ For offenses committed on or after January 1, 7.9.9 7, per repeal of defendantls consent is not needed.) 1- The Court finds that 3 IODQGF shorter period of probation is necessary than that which is specified in G.S. 2. The Court finds that it is NOT appropriate to delegate to the Division of Adult Probation and Parole in the Department of Correction the authority to impose any of the requirements in G.S. 15A-1343.2lel if the offender is sentenced to a community punishment, 1: G.S. if the offender is sentenced to an intermediate punishment. 3. The above period of probation shall begin when the defendant is released from incarceration in the case referred to below. 4. The above perioci of probation shall begin at the expiration of the sentence in the case referred to below. (NOTE: L/lst frie number, date, county and court in which prior sentence imposed. File Number i Offense County Court Dare I Set forth in me number IVIONETAFW CONDITIONS The defendant shall pay to the Clerk of Superior Court the "Total AmounE'Que" shown below, plus the probation supervision fee, pursuant to a Sghedule determined by the probation officer. i set out by the court as follows: Costs Fine Restitution Atrorney's Fee Community Service Fee Total Amount Due 160.00 0.00 4 524.95 300.00 100.00 5 084.95 See attached "Restitution Worksheet, Notice And Order (Initial Sentencing)/' AOC-CFR-611, which is incorporated by reference. All payments received by the clerk shall be distributed pro rata among the persons entitled to restitution in this priority: first among all G.S. 7A-304ld) priorities and before payment of community service and probation supervision fees. LJ Upon payment of the "Total Amount Due", the probation officer may transfer the defendant to unsupervised probation. AOC-CR-503, Rev. 2/2000 Admini?rative Document 36 Filed Page 8 of 9 PageID 89 Material opposite unmarked squares is to be disregarded as surplusage. 14. lffapp/feeble) The prosecutor and your lawyer have informed the Court that these are all the terms Answers and COf`ldltiOnS of \/Our |982 (See attachment for additional plea arrangements, including voluntary dismissal .I A Juli f-rw( |75 /gvfe/1/if -fa/'it an Lam. ia) is this correct as being your full plea arrangement? ('l4al (bl Do you now personally accept this arrangement? (1 4b) i5. {Other than the plea arrangement between you and the prosecutor) has anyone made any (15) promises or threatened you in any way to cause you to enter this plea against your wishes? 16. Do you enter this plea of your own free will, fully understanding what you are doing?~ (16) Z0 17. Do you have any questions about what has just been said to you or about anything else (17) M6 connected to your case? I have read or have heard all of these questions and understand them. The answers shown are the ones I gave in open court and they are true and accurate. Neither my lawyer nor anyone else has told me to give false answers in order to have the Court accept my plea in this case. The conditions of the plea as stated above, if any, are accurate. Date SWORN AND SUBSCRIBED T0 BEFORE _.Deputy CSC [Il Assistant CSC Ei Clerk Of Superior Court an We CERTIFICATION sv LAWYER Fon DEFENDANT As lawyer for the defendant named above, hereby certify that the conditions stated above, if any, upon which the defendant's plea was entered are correct and they are agreed to by the defendant and myself. I urther certify that I have fully explained to the defendant the nature and elements of the chargelsl to which the defendant is gf-adin . Dare Nam avy er For De endant (Type Or Prin I endant 2 - 21 0 2 I ATIG Eff FROSE QR As prosecutor for this Prosecutorial District, I hereby certify tt?t the conditions stated above, if any ar the terms agreed to by the defendant and hislher lawyer and myself for the entry of the plea by the def the charg s) in this case. Date Name secu (T Or Print/ 4 2- FLEA ADJUDICATION Upon consideration of the record proper, evidence presented, answers of defendant, and statements of the lawyer for the defendant and the District Attorney, the undersigned finds: 1 That there is a factual basis for the entry of the plea. 2. The the defendant is satisfied with his/her lawyer. 3. That the defendant is competent to stand trial and that the plea is the informed choice of the defendant and is made freely, voluntarily and understandingly. The defendant's plea is hereby accepted by the Court and is ordered recorded. iff Name Presiding Judge (Type Or Print) Signature Of Presidin - ge $2 wt an 0 1 AOC-CR-300, Side Two, Rev. 2/2000 Administrative Office of the Courts Case 3:06-cr-00134 Document 36 Filed Page 9 of 9 PagelD 90