United States District Court, W.D. Arkansas, Fort Smith Division
MAGISTRATE JUDGE'S REPORT AND
HONORABLE MARK E. FORD, UNITED STATES MAGISTRATE JUDGE
the Court is the Petitioner's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody filed September 29, 2017. (ECF No.
48). No service of the § 2255 motion was authorized and,
therefore, the United States of America has not filed a
response. The matter is ready for Report and Recommendation.
October 28, 1999, Defendant/Petitioner, Tyrone Collins
(“Collins”), represented by the Office of the
Federal Public Defender for the Eastern and Western Districts
of Arkansas, entered a plea of guilty to a single count of
causing the United States Postal Service to deliver a
threatening communication to a judge in violation of 18
U.S.C. § 876. (ECF No. 23).
April 10, 2010, Collins was sentenced to 51 months
imprisonment, three years supervised release, a fine of $2,
000.00, and a $100.00 special assessment. (ECF No. 25). The
sentence was ordered to run consecutively to any other term
of imprisonment to which Collins had previously been
sentenced. (ECF No. 26). The Pre-Sentence Investigation
Report (“PSR”) revealed that, as of the date of
sentencing, Collins was serving a sentence of 30 years in the
Arkansas Department of Correction for kidnaping and rape.
Collins' earliest parole eligibility date is 2018, and he
remains a prisoner of the ADC. (ECF No. 24). No direct appeal
was taken by Collins.
16, 2005, over five years later, Collins filed his pro
se motion pursuant to 28 U.S.C. § 2241. (ECF No.
28). The § 2241 motion raised claims that: (1) his
attorney provided ineffective assistance by failing to file a
motion seeking a mental evaluation of Collins and by
persuading Collins to waive a jury trial by advising him that
he had a huge case load and that Collins' case was taking
up too much time and tax dollars; and, (2) that his plea of
guilty was unlawfully induced and was not made knowingly and
with an understanding of the nature of the charge and the
consequences of the plea. (ECF No. 28).
Government filed a response in which it argued that
Collins' claims were improperly asserted by way of a
petition under 28 U.S.C. § 2241, and that Collins'
claims were barred by limitations. (ECF No. 37).
Collins did not challenge the execution of the sentence, but
instead, he challenged the validity of the conviction and
sentence themselves, his claims could not be considered in
the context of a petition under 28 U.S.C. §
2241, and this Court construed Collins'
claims as a motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255. (ECF No. 42, p. 3).
Collins' filing as a § 2255 motion to be untimely,
the Hon. Bobby E. Shepherd, then U.S. Magistrate
Judge, filed a Report and Recommendation on
October 26, 2005 recommending dismissal. (ECF No. 42). Citing
United States v. Booker, 543 U.S. 220 (2005), and
contending that he “never admitted to past criminal
history, ” Collins objected to the Report and
Recommendation. (ECF No. 43). The Hon. Robert T. Dawson, U.S.
District Judge, entered an Order adopting the Report and
Recommendation in its entirety on November 3, 2005. (ECF No.
45). No appeal from the dismissal of his § 2255 motion
was taken by Collins.
September 29, 2017, nearly 12 years after the dismissal of
his first § 2255 motion, Collins filed the pending
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. (ECF No.
48). As grounds for relief, Collins argues: (1) that by
varying upward the Court violated application of the
Sentencing Guidelines (ECF No. 48, p. 4); (2) that the
Court's above-Guidelines sentence is substantively
unconstitutional because the upward variance was based upon
factors already taken into account by the Guidelines, and the
factors were improperly weighed (ECF No. 48, p. 5); and, (3)
violation of both application and constitutionality of the
Sentencing Guidelines (in effect, a re-statement of his first
two grounds, with the additional argument that the Court
failed to address his objection to the Report and
Recommendation) (ECF No. 48, p. 7). Regarding timelieness,
Collins states, “[a]t the time various 8th Circuit and
U.S. Supreme Court rulings had not been ruled on, now they
have and also have now been newly recognized by both courts
and made retroactively applicable to cases on collateral
review.” (ECF No. 48, p. 11).
did not obtain permission from the Eighth Circuit Court of
Appeals to file a second or successive petition under 28
U.S.C. § 2255.
prisoner in custody under sentence . . . 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 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
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a). “If the court finds that the
judgment was rendered without jurisdiction, or that the
sentence imposed was not authorized by law or otherwise open
to collateral attack, or that there has been such a denial or
infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral attack, the
court shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b). A thorough review of Collins'
§ 2255 motion and the files and records of this case
conclusively shows that this Court is without authority to
consider the motion, and the undersigned recommends dismissal
of Collins' pending § 2255 motion.
§ 2255 Motion is a Second ...