govinfo:USCOURTS-kywd-1_23-cr-00048-0

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
BOWLING GREEN DIVISION 
 
AARON DALE MCKINNEY MOVANT/DEFENDANT 
 
v. CRIMINAL ACTION NO. 1:23-CR-48-GNS 
 
UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF 
 
MEMORANDUM OPINION 
 
Movant Aaron Dale McKinney filed a pro se motion to vacate, set aside, or correct his 
sentence under 28 U.S.C. § 2255 (DN 52).1 In the motion, McKinney maintains that he is entitled 
to release at this time. The Court directed the United States to file a response (DN 56). The United 
States filed a response (DN 58), and McKinney filed a reply (DN 76). 
 The motion is currently before the Court for preliminary consideration under Rule 4 of the 
Rules Governing Section 2255 Cases in the United States District Courts. Under Rule 4(b), “[i]f 
it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that 
the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to 
notify the moving party.” For the reasons that follow, the motion will be denied. 
I. 
 As background, McKinney pleaded guilty to possession of a firearm by a prohibited person 
(DN 34). On January 31, 2025, this Court sentenced him to a term of 71 months of imprisonment, 
which was adjusted downward by 23 months and 9 days to reflect time served in Metcalfe County 
for a total of 47 months and 21 days of imprisonment (Id.). The Court imposed the federal sentence 
 
1 McKinney actually filed two § 2255 motions (DN s 51 and 52 ). In his reply (DN 76), McKinney clarifies that his 
second § 2255 motion (DN 52) replaced his first § 2255 motion (DN 51). Therefore, the Court will only address the 
second-filed § 2255 motion herein, but the determination applies to both pending motions. PageID #:
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to run concurrently with any undischarged term of state imprisonment imposed by the Metcalfe 
and Barren Circuit Courts (Id.). 
II. 
 In support of the § 2255 motion, McKinney states as follows: 
I took 10 years in state is same arrest as this. Was sent back to County Jail Feb. 4, 
2025 told by Marshalls don’t owe you anything else since the judge ran it 
concurrent with state. Completed SAP program in state. Made parole and lawyer 
telling me should be released since this is run – concurrent to state charge 00193 & 
00037. Att orney also came to County Jail in Feb . 4, 2025, saying I do not owe 
federal sentence.2 
 
(DN 52). 
 In the Uni ted States’s response to th e motion, it argues that as part of McKinney’s plea 
agreement he waived his right to contest or collaterally attack his conviction and the resulting 
sentence under 28 U.S.C. § 2255 unless the motion was based on claims of ineffective assistance 
of counsel or prosecutorial misconduct (DN 58). The Un ited S tates argues that McKinney’s 
waiver in the plea agreement is valid and that Mc Kinney is limited to claims of ineffective 
assistance of counse l and/or p rosecutorial immunity. (Id.). Because the instant § 2255 motion 
does not raise either of these grounds, the United States argues that the motion should be denied 
(Id.). 
 McKinney filed a reply, in which he states as follows: 
After the sentencing in both Federal and State Court, the advise from counsel was 
that the remaining 41 months 21 days were to be run concurrent with the state cases. 
Barren County Circuit Court had a 5 year sentence imposed, with 529 days credited 
to the sentence. This jailtime credit given by the State judge was credited to the 
sentence that was ordered to run concurrent with the state sentence. This resulted 
in 1 year 154 days not being calculated into the time the Petitioner has served, as 
all the sentences were ordered to run concurrent. 
 
 
2 In addition to the instant § 2255 motion, McKinney has filed three other motions raising the same argument–a motion 
to correct a clerical error pursuant to Rule 36 (DN 54) ; a motion for clarification of sentence (DN 63); and a motion 
for compassionate release under 18 U.S.C. § 72 (DN 72). PageID #:
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Counsel failed to correct any of these calculations. This not only meets the 
performance prong under Strickland,3 but the prejudice prong as well since the 
Petitioner is now incarcerated beyond what the court ’s intentions were. [] When 
properly calculated, the Petitioner ’s sentence would require immediate release, or 
release to a half-way house. 
 
(DN 76). McKinney further states, “Counsel was further ineffective by failing to explain how a 
concurrent sentence works. The advise counsel gave to the Petitioner was that as soon as the state 
sentence concluded the federal sentence would also terminate” (Id.). He continues, “Counsel has 
failed to file on behalf of the Petitioner to ensure that he is not over incarcerated. Counsel has 
failed in his fiduciary duty to the Petitioner and has put his own interest ahead of his client” (Id.). 
III. 
McKinney pleaded guilty under Rule 11(c)(l)(B) of the Federal Rules of Criminal 
Procedure to possession of a firearm by a prohibited person in violation of 18 U.S.C. §§ 922(g)(l) 
and 924(a)(8) (DN 24). The plea agreement provided, “The Defendant is aware of his right to 
contest or collaterally attack his conviction and the resulting sentence under 28 U.S.C. § 2255 or 
otherwise. Unless based on claims of ineffective assistance of counsel or prosecutorial 
misconduct, Defendant knowingly and voluntarily waives any collateral attack argument” (Id.). 
 “It is well-settled that a knowing and voluntary waiver of a collateral attack is enforceable.” 
Slusser v. United States , 895 F.3d 437, 439 (6th Cir. 2018) (citing Watson v. United States , 
165 F.3d 486, 489 (6th Cir. 1999)); see also United States v. Morrison, 852 F.3d 488, 490 (6th Cir. 
2017) (“We will enforce an appeal waiver included in a plea agreement when the agreement is 
made knowingly and voluntarily.”) (citations omitted). McKinney makes no argument that his 
waiver was not knowing and voluntary. At the change -of-plea hearing, the Court found that 
 
3 McKinney cites Strickland v. Washington, 466 U.S. 668 (1984), which provides that to prove ineffective assistance 
of counsel, a defendant must prove that counsel performed in an objectively deficient manner and that the deficient 
performance was prejudicial. Id. at 687. PageID #:
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McKinney was competent to enter his plea and that the plea was knowing, voluntary, and with the 
advice of counsel (DN 25). McKinney advised the Court that he understood and waived his 
constitutional rights as described in the agreement. Therefore, McKinney is barred by the waiver 
provision from bringing the instant § 2255 motion. See, e.g., United States v. Cannon, No. 1:18-
cr-454, 2024 U.S. Dist. LEXIS 116397, at *7 (N.D. Ohio July 1, 2024) (plea agreement’s waiver 
provision forfeiting right to collaterally attack his conviction or sentence barred the movant’s 
§ 2255 motion). 
 In his reply, McKinney for the first t ime attempt s to cast his argument as a claim for 
ineffective assistance o f counsel. However, “[i]t is well -established that a party, including a 
movant in a motion under § 2255, may not raise an argument for the first time in a reply brief. ” 
United States v. Jones, No. 5:14-CR-119-JMH, 2018 U.S. Dist. LEXIS 178459, at *13 (E.D. Ky. 
Oct. 17, 2018) (citations omitted) ; see also Rule 2(b)(1) of the Rules Governing Section 2255 
Proceedings for the United States District Courts (The motion must “specify all the grounds for 
relief available to the moving party. ”). Therefore, the Court declines to address the arguments 
raised in the r eply because they were waived and the government has had “no opportunity to 
respond to these new claims.” United States v. Jones, 2018 U.S. Dist. LEXIS 178459, at *13. 
Moreover, the Court notes that even if McKinney had not waived his right to collaterally 
attack his sentence, his motion is improper. Plaintiff requests recalculation of his sentencing credit. 
Claims challenging the execution of a prisoner’s sentence by the Bureau of Prisons, including the 
calculation of credit for time served, are not brought before the sentencing court under 28 U.S.C. 
§ 2255 but are properly brought as a habeas action under 28 U.S.C. § 2241 in the judicial district 
in which the prisoner is confined. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001) 
(“Section 2255 is the primary avenue for relief for federal prisoners protesting the legality of their PageID #:
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sentence, while § 2241 is appropriate for claims challenging the execution or manner in which the 
sentence is served ”); see also Capaldi v. Pontesso , 135 F.3d 1122, 1123 (6th Cir. 1998).
Accordingly, McKinney’s challenge to the execution of his sentence may not be brought under 
§ 2255.
For these reasons, the Court will deny the § 2255 motion and dismiss this action by separate 
Order.
IV.
In the event McKinney appeals this Court’s decision, he is required to obtain a certificate 
of appealability. 28 U.S.C. § 2253(c)(1)(B); Fed. R. App. P. 22(b). A district court must issue or 
deny a certificate of appealability and can do so even though the movant has yet to make a request 
for such a certificate. Castro v. United States, 310 F.3d 900, 903 (6th Cir. 2002).
When a district court denies a motion on procedural grounds without addressing the merits 
of the motion, a certificate of appealability should issue if the movant shows “that jurists of reason 
would find it debatable whether the motion states a valid claim of the denial of a constitutional 
right and that jurists of reason would find it debatable whether the district court was correct in its 
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a plain procedural bar is 
present and the district court is correct to invoke it to dispose of the matter, a reasonable jurist 
could not conclude either that the court erred in dismissing the motion or that the movant shou ld 
be allowed to proceed further. Id. at 484. In such a case, no appeal is warranted. Id. This Court 
is satisfied that no jurists of reason could find its procedural ruling to be debatable. Thus, no 
certificate of appealability is warranted in this case.
Date:
cc: Movant, pro se
United States Attorney
4416.010
June 12, 2026 PageID #:
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