United States District Court, D. South Carolina, Florence Division
L. Wooten Chief United States District Judge
matter comes before the Court for consideration of the pro se
petition to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 filed by Petitioner James Eric
Jones. For the reasons stated below, the Court dismisses the
Factual and Procedural History
Government charged Petitioner with being a felon in
possession of a firearm and ammunition, and a jury convicted
him on April 10, 2007 after a two-day trial. ECF Nos. 2, 58.
underlying facts of the case, as set forth in the PSR, are as
On November 1, 2006, at approximately 12:55 a.m., Officer
Bailey with [Mullins Police Department (MPD)], who was on
routine patrol in Mullins, South Carolina, observed a blue
Buick exceeding the posted speed limit of 25 miles per hour,
and swerving recklessly on both sides of Seaboard Avenue. The
officer initiated a traffic stop at Seaboard Avenue and West
Dogwood Street by activating his blue lights. The vehicle
failed to stop, ran a stop sign, and increased its speed
before turning onto Miller's Road.
The chase continued down Miller's Road until the driver
of the vehicle jammed on the brakes and attempted to turn
left onto Davis Lane. Officer Bailey's vehicle struck the
Buick on the driver's side and both vehicles came to a
Officer Bailey observed the passenger of the vehicle as he
crawled through the passenger window of the vehicle and fled
into a nearby wood line. The passenger was . . . never
apprehended and remains unidentified. The driver of the
vehicle, later identified as [Petitioner], also exited the
Buick through the passenger window.
However, instead of attempting to flee, [Petitioner] turned
around and began to fight Officer Bailey.
Officer Bailey and [Petitioner] began to fight on the hood of
the Buick. [Petitioner] was on top of the officer until both
men fell to the ground. Officer Bailey landed on his stomach
and when he stood up, [Petitioner] pushed him against his
patrol vehicle from behind. Officer Bailey pulled out his
pepper spray. At that time, [Petitioner] put a firearm to the
left side of Officer Bailey's head and made a statement
to the effect of: “If you move or grab anything,
I'll kill you.” As Officer Bailey dropped his
pepper spray, he felt [Petitioner] start to pull on his
(Bailey's) duty belt. Officer Bailey stated he thought
[Petitioner] was going for his duty weapon, so he (Bailey)
drew his duty weapon first. At that time, Officer Bailey
heard two clicks from [Petitioner's] weapon, but the gun
did not fire.
Officer Bailey pointed his duty weapon in [Petitioner's]
direction, between Bailey's left arm and torso, and fired
one round into the left side of [Petitioner's] abdomen.
As Officer Bailey stood up and turned around, [Petitioner]
was still standing, but had dropped his firearm.
[Petitoner] then grabbed the barrel of Officer Bailey's
duty weapon and tried to turn it towards the officer's
face. Officer Bailey locked his hand around the slide so the
weapon would not fire. The two men went to the ground again
as they fought over Officer Bailey's firearm. During that
time, [Petitioner] continued to reach for his own weapon, but
Officer Bailey was able to toss the firearm away from the
scene and out of [Petitioner's] reach. After Officer
Bailey threw [Petitioner's] weapon, [Petitioner] yelled
repeatedly for the unidentified passenger to get the gun and
“shoot him!” meaning Officer Bailey.
Officer Bailey stated that while on his stomach on the
ground, he fired another shot from his duty weapon away from
[Petitioner], because he wanted to clear the gun and keep it
out of [Petitoiner's] reach. Officer Bailey indicated
that he eventually jammed his duty weapon into the dirt under
his body, in an effort to disable it and protect the weapon.
[Petitioner] continued to fight Officer Bailey until
Lieutenant Oakley with MPD arrived on the scene.
Lieutenant Oakley was originally at a domestic call when he
heard two shots coming from the direction where Officer
Bailey and the suspect's vehicle had been traveling. He
responded to Officer Bailey's location on Miller's
Road and observed [Petitioner] on top of Officer Bailey.
[Petitioner] appeared to be trying to choke Officer Bailey.
Lieutenant Oakley stated he did not pull out his own duty
weapon because Officer Bailey yelled that [Petitioner] no
longer possessed a firearm. He also stated he was not sure it
was safe to fire a shot at [Petitioner] without striking
Lieutenant Oakley then shoved [Petitioner] off of Officer
Bailey. [Petitioner] attempted to get up five to ten times
and Lieutenant Oakley struck the defendant in the face with
his fist until [Petitioner] was stunned enough to be
handcuffed and taken into custody.
[Petitioner's] firearm, a Walther, model PPK/S, .380
caliber pistol (Serial No. 048835), was located and taken
into evidence at the scene by SLED. The firearm was not
listed as stolen. The firearm was fully loaded with one round
in the chamber and the safety was on.
PSR ¶¶ 6-16.
Court sentenced Petitioner as an armed career criminal under
the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e), to a within-guidelines term of 456 months
incarceration. ECF No. 88. His total offense level was
41, which included a cross-reference under § 2A2.1 to
attempted murder, a six-level adjustment under §
3A1.2(c)(1) for assaulting an officer during flight, and a
two-level adjustment under § 3C1.2 for reckless
endangerment during flight. PSR ¶¶ 67, 68, 71. He
had fourteen criminal history points, establishing a criminal
history category of VI, even absent the ACCA classification.
PSR ¶ 44. His total offense level of 41 and his criminal
history category of VI resulted in an advisory guideline
range of 360 months to life.
time, his following South Carolina convictions were
considered ACCA predicate offenses:
(1) Attempted Burglary;
(2) Burglary, 2nd Degree;
(3) Strong Arm Robbery and Assault and Battery of a High and