govinfo:USCOURTS-laed-2_09-cr-00398-4

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
 
UNITED STATES OF AMERICA 
 
 
 
  CRIMINAL  ACTION 
 
v. 
 
 
 
  NO.  09-0398 
 
THERON JONES 
 
 
 
  SECTION : “J” 
ORDER & REASONS 
 Before the Court is a  pro se Motion to Vacate, Correct, or Set Aside Sentence 
Pursuant To 28 U.S.C. § 2255 and United States v. Davis, 139 S. Ct. 2319 (2019) (Rec. 
Doc. 577) filed by Petitioner Theron Jones, and an opposition thereto (Rec. Doc. 575) 
filed by the Government . Having considered the motion and legal memoranda, the 
record, and the applicable law, the Court finds that the motion should be DENIED. 
FACTS AND PROCEDURAL BACKGROUND 
 Theron Jones seeks to collaterally challenge the validity of his conviction and 
sentence imposed on Count 23 based on the newly recognized right announced by the 
Supreme Court in United States v. Davis , 139 S. Ct. 2319 (2019) . The collateral 
challenge waiver containe d in his plea agreement with the Government forecloses 
relief.   
 On April 27, 2011, Theron Jones pled guilty to racketeering, drug, and firearm 
offenses contained in the Superseding Indictment (Rec. Doc. 31) arising out of conduct 
during his membership in  the New Orleans Central City “Josephine Dog Pound” 
gang. (Rec. Doc. 243). Specifically, Jones pled guilty to four counts of the Superseding 
Indictment: Count 1 (participating in a RICO conspiracy, in violation of 18 U.S.C. § 
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1962(d)); Count 2 (conspiracy to distribute 280 grams or more of cocaine base ("crack") 
and a quantity of cocaine hydrochloride, heroin, and ma rijuana, in violation of 21 
U.S.C. §§ 841(a)(1), (b)(1)(A), (b)(1)(C), (b)(1)(D), and 846); Count 3 (conspiracy to 
possess firearms in furtherance of a crime of violence and  drug trafficking crime, in 
violation of 18 U.S.C. § 924(o)); and Count 23 (using and carrying a firearm during 
and in relation to a crime of violence and drug trafficking crime, in violation of 18 
U.S.C. § 924(c)(1)(A) and (c)(2)). At the time of his plea, Jones swore that the facts 
contained in the Factual Basis were true and correct. (Rec. Doc. 451).  
 The plea agreement Jones signed outlined his appellate and post -conviction 
waivers, along with the maximum penalties he faced (including a mandatory 
minimum of 10 years imprisonment and a maximum of life imprisonment; a five-year 
period of supervised release; a $4,000,000 fine; and a $400 special assessment fee).   
(Rec. Doc. 242). Pursuant to Rule 11(c)(1)(C), in the  parties’ plea bargain, the 
Government and Jones agreed that Jones should be sentenced to a specific sentence 
of 20 years ’ imprisonment, notwithstanding the higher maximum penalty he faced .  
The parties agreed that this specific 20-year sentence was reasonable because Jones 
“did not fire a weapon during the murder of Herbert Lane and because of his lack of 
criminal convictions.” Id. In exchange for his plea of guilty, the Government agreed 
that it would not charge Jones with additional drug trafficking crimes, that it would 
request dismissal of Count 24 (a second charge of using and carrying a firearm during 
and in relation  to a crime of violence and drug trafficking crime, in violation of 18 
U.S.C. § 924(c)(1)(A) and (c)(2), conviction of which would have mandated an 
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additional 25-year consecutive sentence), and that Jones was entitled to a three-level 
reduction in his sentencing guideline. Id. 
 Notably, as part of the plea bargain, Jones waived his right to appeal  or to 
collaterally challenge his conviction or sentence in any collateral proceeding; to this 
effect, page 3 of the plea agreement provides: 
Except as otherwise provided in this paragraph, the defendant 
hereby expressly waives his rights to appeal from his conviction 
and/or his sentence, including but not limited to any appeal 
rights conferred by Title 28, United States Code, Sections 1291, 
and by Title 18, United States Code, Section 3742.  The 
defendant further waives his right to contest his conviction 
and/or his sentence in any collateral proceeding, including 
proceedings brought under Title 28, United States Code, Section 
2241 and Title 28,  United States Code, Section 2255, on any 
ground, except that the defendant may bring a post conviction 
claim if the defendant establishes that ineffective assistance of 
counsel directly affected the validity of this waiver of appeal 
and collateral challenge rights or the validity of the guilty plea 
itself. 
 
(Rec. Doc. 242) (emphasis in original). 
 In the United States Probation Office’s Pre-Sentence Investigation Report, it 
was determined that Jones had a Category II Criminal History with a total offense 
level of 42, placing Jones in an advisory  guideline range between 360 months to life 
imprisonment, well above his agreed upon sentence of 240 months.  This Court 
accepted the Rule 11(c)(1)(C) plea agreement, and  on November 22, 2011, sentenced 
Jones to the stipulated sentence of 240 months in prison (comprised of 180 months as 
to each of Counts 1, 2,  and 3, to be served concurrently, plus 60 months as to Count 
23, to be served consecutively to Counts 1, 2, and 3)  in accordance with the parties' 
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agreement. (Rec. Docs. 386, 388).   
 Jones did not appeal his conviction or sentence. However, he previously 
requested relief under 28 U.S.C. § 2255, claiming (among other things) ineffective 
assistance of counsel due to counsel’s failure to perfect his requested appeal.  (Rec. 
Doc. 479). Determining that Jones’s counsel’s failure to file a requested notice of 
appeal constitutes per se ineffective assistance of counsel, t he Court dismissed 
without prejudice the habeas petition and ordered the Clerk of Court to reinstate 
Jones’s criminal judgment to allow him to pursue an out -of-time appeal. (Rec. Doc. 
501). Following issuance of the reinstated judgment (Rec. Doc. 502), Jones appealed.  
(Rec. Doc. 504). On October 31, 2014, the Fifth Circuit remanded for this Court to 
determine in the firs t instance  whether the tardy  notice of appeal was due to 
excusable neglect or good cause. (Rec. Doc. 516). Upon referring the issue for hearing 
and recommendation, the magistrate judge recommended that the Court determine 
that the untimely notice of appe al was due to excusable neglect (Rec. Doc. 518); the 
Court adopted the Report and Recommendation (Rec. Doc. 519) , and the matter was 
returned to the Fifth Circuit as ordered. Ultimately, on October 5, 2015, the Fifth 
Circuit granted Jones’s counsel’s moti on for leave to withdraw from the 
representation and dismissed Jones’s appeal after concurring with counsel’s 
assessment that the appeal presents no nonfrivolous issue for appellate review.  
(Rec. Doc. 531-1). 
 On July 2, 2020, Jones filed a motion request ing an extension of time within 
which to file a habeas petition pursuant to 28 U.S.C. § 2255 so that he  later may 
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pursue a claim under United States v. Davis, 139 S. Ct. 2319 (2019).  Initially, the 
Court issued a briefing order and then granted the Govern ment’s motion requesting 
an extension of its opposition deadline.  (Rec. Doc. 567, 571).  On September 28, 
2020, the Court issued an order recharacterizing Jones’s motion seeking an extension 
of time to file a motion to vacate as an initial motion to vacat e, ordered the Clerk’s 
Office to redesignate the pleading  as such, and administered the requisite warning 
under Castro v. United States, 540 U.S. 375 (2003), advising Jones he must either 
withdraw his recharacterized motion to vacate or amend it so that it  contains any 
and all § 2255 claims he believes he has in order to avoid future restrictions on second 
or successive motions to vacate. (Rec. Doc. 576).  On January 31, 2022, this case was 
reassigned to this Section of Court. (Rec. Doc. 590).   
 The Government does not challenge the timeliness of Jones’s Davis claim; 
rather, the Government contends that the claim fails on the merits; should be denied 
as procedurally defective; and is barred by the collateral review waiver in the parties’ 
plea agreement.  (Rec. Doc. 5 75). Having failed to respond  to the Court’s order or 
otherwise file a reply in further support of his recharacterized motion to vacate, the 
Court considers the recharacterized habeas petition and the Government’s opposition 
thereto.  
LEGAL STANDARD 
 A petitioner may file a habeas corpus petition pursuant to 28 U.S.C. § 2255, 
claiming a right to release from custody on the ground that a sentence ordered by a 
federal court "was imposed in violation of the Constitution or the laws of the United 
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States." 28 U.S.C. § 2255 . “Relief under 28 U.S.C. § 2255 is reserved for 
transgressions of constitutional rights and for a narrow range of injuries that could 
not have been raised on  direct appeal and would, if condoned, result in a complete 
miscarriage of justice.” United States v. Gaudet , 81 F.3d 585, 589 (5th Cir. 1996)  
(citations and internal quotation marks omitted). A claim of error that is neither 
constitutional nor jurisdictional is not cognizable in a § 2255 proceeding unless the 
error constitutes a “fundamental error” that “renders the entire proceeding irregular 
or invalid.” United States v. Addonizio, 442 U.S. 178, 185 (1979).    
 The Court "may entertain and determine such motion without requiring the 
production of the prisoner at the hearing." 28 U.S.C. § 2255. Having considered the 
record, the motions, and t he government’s response, the Court finds that the record 
is adequate to address the petitioner’s claims and to dispose of them as a matter of 
law. Accordingly, no evidentiary hearing is necessary. See United States v. Walker, 
68 F.3d 931, 934 (5th Cir. 1995)  (“if on th[e] record we can conclude as a matter of 
law that [the petitioner] cannot establish one or both of the elements necessary to 
establish his constitutional claim, then an evidentiary hearing is not necessary  . . . 
.”).    
 A habeas petitioner  has the burden of establishing his claims by a 
preponderance of the evidence. Wright v. United States , 624 F.2d 557, 558 (5th Cir. 
1980) (citations omitted). If the Court finds that the petitioner is entitled to relief, it 
“shall vacate and set the judgme nt aside and shall discharge the prisoner or 
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resentence him or grant a new trial or correct the sentence as may appear 
appropriate.” 28 U.S.C. § 2255. 
 Where the petitioner collaterally challenges convictions or sentences that 
resulted from a plea bargain, the petitioner knowingly and voluntarily waived as part 
of the plea deal collateral review of his conviction and sentence, the government 
timely seeks enforcement of the collateral review waiver, and the plain language of 
the collateral review waiver app lies, the Court must enforce the waiver as written.  
See United States v. Barnes, 953 F.3d 383, 386 (5th Cir. 2020) (rejecting as foreclosed 
by precedent Barnes’s argument that he cannot waive his right to challenge an illegal 
or unconstitutional sentence and reciting the only two exceptions to the general rule 
that knowing and voluntary collateral review waivers are enforceable: ineffective 
assistance of counsel and sentences exceeding the statutory maximum); see also 
United States v. Potter, No. 13-141, 2015 WL 3486446, at *1 (E.D. La. June 1, 2015)  
(Feldman, J.) (summarizing authorities holding that where the record contains no 
indication that ratification of a plea agreement and accompanying appellate and 
collateral challenge waiver was not voluntary or kn owledgeable, the defendant will 
be held to the bargain he made). This is so regardless of whether the petitioner’s 
asserted habeas grounds for relief implicate newly recognized changes in law, even 
those based on new retroactive constitutional rules of la w. See United States v. 
Caldwell, 38 F.4th 1161, 1162 (5th Cir. 2022) (reversing district court’s order granting 
habeas relief to petitioner seeking relief under United States v. Davis; holding that 
the petitioner’s collateral review plea waiver precluded collateral attack under § 
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2255); accord United States v. Brooks, No. 20 -10401, 2022 WL 2871200, at *2 (5th 
Cir. July 21, 2022)  (unpublished, per curiam)  (affirming district court’s decision to 
enforce plea agreement’s collateral challenge waiver and to dism iss the habeas 
motion seeking relief under Davis; specifically noting that “timely invocation of 
[petitioner’s] waiver resolves this case” and this “waiver was part of a plea agreement 
that provided him with major benefits[.]”). 
 In determining that the go vernment’s timely invocation of a valid collateral 
challenge waiver contained in a plea agreement forecloses habeas relief predicated 
on new constitutional rules like those articulated in Davis, the Fifth Circuit in 
Caldwell cited Grzegorczyk v. United States, 142 S. Ct. 2580 (2022). There, in denying 
a writ of certiorari, “five Supreme Court justices recently reaffirmed[ that] plea 
waivers such as the one entered here preclude[ ] any argument based on the new 
caselaw.” Caldwell, 38 F.4th at 1162 (internal quotations omitted). Other circuits are 
in accord with this understanding of appeal waivers and their preclusive effect on 
motions seeking the benefit of later changes in law. See, e.g., King v. United States,  
41 F.4th 1363, 1370 (11th Cir. 2022)  (holding that petitioner’s Davis claim is no 
exception to the rule that “a defendant that waives the right to collaterally attack his 
sentence is bound by that decision”); Portis v. United States, 33 F.4th 331, 335, 338 
(6th Cir. 2022) (observing that the “principle that future changes in law do not vitiate 
collateral-challenge waivers is mainstream” and dismissing Davis challenge as 
waived); United States v. Goodall , 21 F.4th 555, 563- 64 (9th Cir. 2021) (noting that 
while “there always remains a chance the law could change in the defendant’s favor,” 
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when the defendant waives his right to appeal, he “knowingly and voluntarily 
assumes that risk because he receives a presumably favorable deal under exi sting 
law.”); Oliver v. United States, 951 F.3d 841, 844- 45 (7th Cir. 2020)  (holding that 
Davis challenge failed to “satisfy any of [its] recognized bases for avoiding a valid 
collateral-attack waiver,” including a statutory-maximum exception). 
 To be sure, “a voluntary plea of guilty intelligently made in the light of the then 
applicable law does not become vulnerable because later judicial decisions indicate 
that the plea rested on a faulty premise.” Barnes, 953 F.3d at 387 (quoting Brady v. 
United States, 397 U.S. 742, 757 (1970)). A criminal defendant entering a knowing 
and voluntary plea waiver of appellate and collateral challenge rights “needn’t have 
understood all the possible eventualities that could, in the future, have allowed him 
to challenge his conviction or sentence. His waiver only need[] be ‘knowing,’ not ‘all-
knowing.’” Id. at 388 (observing that “[m]ost other circuits have reached the same 
conclusion when considering appellate or collateral -review waivers in the context of 
Johnson-based challenges). 
 Some circuits recognize a “miscarriage of justice” exception to appellate or 
collateral-review waiver. See, e.g., United States v. Cudjoe, 634 F.3d 1163, 1167 (10th 
Cir. 2011)  (defining circumstances qualifying as miscarriage of justice, incl uding 
where the district court relied on an impermissible factor like race; ineffective 
assistance of counsel in negotiating the waiver renders the waiver invalid, the 
sentence exceeds the statutory maximum, or the waiver was “otherwise unlawful”). 
However, absent such exceptional circumstances being squarely invoked or any 
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relevant factor clearly implicated, the Fifth Circuit has thus far declined to either 
adopt or reject the exception. See Barnes, 953 F.3d at 389 (deeming insufficient 
briefing directed to the exception to constitute waiver); see also United States v. 
Guinn, No. 21-60550, 2022 WL 340591, at *2 (5th Cir. Feb. 4, 2022) (unpublished, per 
curiam) (dismissing appeal because petitioner waived his right to bring a 
postconviction challenge and decl ining to consider inadequate briefing concerning 
whether miscarriage of justice exception to the enforceability of the collateral review 
waiver would apply), petition for cert. docketed on June 28, 2022. 
DISCUSSION 
 There is no dispute that Jones agreed to waive his right to collaterally 
challenge his convictions and sentence. The Government moves to enforce as written 
the waiver, which the Government submits bars his Davis claim pressed here in a 
collateral challenge. For his part, Jones does not challenge the validity of this waiver. 
The Court finds that the collateral -review waiver must be enforced as written and 
thus the Court  does not reach the merits of Jones’s pro se  collateral challenge 
invoking Davis. 
 “[I]t makes considerable sense to address the enforceability of a clearly worded 
collateral-challenge waiver before turning to the merits” of a habeas petition. See 
Portis, 33 F.4th at 338 (“What is the point of having such provisions in a plea 
agreement if they are not enforced at the outset?”). Here, Jones waived his right to 
collaterally challenge his convictions and sentence “on any ground” except for 
exceptions not implicated here. (Rec. Doc. 242). He is bound by that decision, just like 
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the Government is bound by its decision to agree to a 20-year prison sentence and its 
decision to seek to dismiss Count 24  of the superseding indictment , which at that 
time, upon conviction, would have mandated an additional 25 -year consecutive 
sentence. Jones’s plea agreement, and its accompanying waiver of collateral -review 
challenges, is enforceable and precludes his habeas petition. See Caldwell, 38 F.4th 
at 1162 (re versing the district court’s decision to grant habeas relief under Davis 
because the petitioner’s “plea waiver bars this collateral attack under § 2255.”).  
 Because Jones’s post-conviction waiver bars his Davis claim and enforcement 
of the waiver would not result in a miscarriage of justice because the government 
agreed to dismiss a charge that would have mandated an additional 25-year sentence 
in exchange for Jones’s knowing and voluntary plea, Jones  is not entitled to post -
conviction relief. In light of the recent and unequivocal chorus  of binding and 
persuasive authorities holding that valid, clearly-worded collateral challenge waivers 
timely invoked by the Government, are enforceable as a matter of law and apply by 
their terms to preclude collateral challenges predicated even on subsequent changes 
in law, the Court so holds and this forecloses a review of the merits of Jones’s Davis 
claim. 
 
 
 
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CERTIFICATE OF APPEALABILITY 
 Rule 11 of the Rules Governing Section 2255 Proceedings states: 
The district court must issue or deny a certificate of appealability when 
it enters a final order adverse to the applicant. Before entering the final 
order, the court may direct the parties to submit arguments on whether 
a certificate should issue. 
A court may issue a certificate of appealability only if the petitioner makes “a 
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).  
To obtain a certificate of appealability, the petit ioner must show “that reasonable 
jurists could debate whether (or, for that matter, agree that) the petition should have 
been resolved in a different manner or that the issues presented [are] ‘adequate to 
deserve encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 
(2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Because Jones does not 
dispute that he entered into a valid plea agreement in which he waived his right to 
collaterally challenge his conviction and sentence, he  has not made a substantial 
showing of the denial of a constitutional right. 
CONCLUSION 
 Accordingly, 
 IT IS HEREBY ORDERED that the pro se Motion to Vacate, Correct, or Set 
Aside Sentence Pursuant To 28 U.S.C. § 2255 and United States v. Davis, 139 S. Ct. 
2319 (2019) filed by Petitioner Theron Jones (Rec. Doc. 577)  is DENIED and an 
evidentiary hearing is not required.  
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 IT IS FURTHER ORDERED  that a certificate of appealability is DENIED 
because Petitioner has failed to demonstrate a substantial showing of the denial of a 
constitutional right. 
 New Orleans, Louisiana, this 24th day of August, 2022. 
 
 
 
 
CARL J. BARBIER 
UNITED STATES DISTRICT JUDGE 
 
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