Order — United States v. Lavaris Marcel Evans (S.D. Miss., Dkt. 38, December 19, 2024)

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This is an Order in United States of America v. Lavaris Marcel Evans, Criminal Action No. 2:22-CR-35-KHJ-MTP-1, in the United States District Court, Southern District of Mississippi, dated December 19, 2024. It denies pro se Defendant Evans's [34] Motion under 28 U.S.C. § 2255, without ordering the Government to respond; it dismisses five of his six claims with prejudice as barred by the collateral-review waiver in his plea agreement, which it finds knowing and voluntary. It dismisses the sixth claim, about seven months of presentence jailtime, without prejudice for lack of jurisdiction. It recounts that he pled guilty to Count One, possession of methamphetamine with intent to distribute, and was sentenced to 14 years and 1 month of imprisonment followed by 5 years of supervised release.

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“Order — United States v. Lavaris Marcel Evans (S.D. Miss., Dkt. 38, December 19, 2024).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-22-cr-00035-dkt-38-s-d-miss-0b6af3a190/, SHA-256 a81c0a6b427211bd0750086fec49966d4b8c204a6fd51c076970e03b4d6607a4.

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Case 2:22-cr-00035-KHJ-MTP Document 38 Filed 12/19/24 Page 1 of 7

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

UNITED STATES OF AMERICA

V. CRIMINAL ACTION NO. 2:22-CR-35-KHJ-MTP-1

LAVARIS MARCEL EVANS

ORDER

Before the Court is pro se Defendant Lavaris Marcel Evans’s [34] Motion to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Because it plainly

appears that Evans is not entitled to relief, the Court denies the [34] Motion

without ordering the Government to respond. See R. Governing Section 2255 Proc.

for the U.S. Dist. Cts. 4(b). The Court dismisses five of Evans’s six claims with

prejudice. As for his sixth claim, which regards the alleged denial of presentence

jailtime, the Court dismisses it without prejudice for lack of jurisdiction.

I. Background

In September 2022, a grand jury returned a two-count [10] Indictment

charging Evans with possessing methamphetamine with the intent to distribute

(Count One) and being a felon in possession of a firearm (Count Two). [10] at 1.

Several months later, Evans pled guilty to Count One of the [10] Indictment under

a written [23] Plea Agreement. See 01/10/2023 Min. Entry; [23] at 1. In the [23] Plea

Agreement, Evans waived his right to appeal or “contest the conviction and

sentence or the manner in which the sentence was imposed in any post-conviction
Case 2:22-cr-00035-KHJ-MTP Document 38 Filed 12/19/24 Page 2 of 7

proceeding, on any ground whatsoever, including” in a Section 2255 motion. [23] at

5. He waived those rights, among others, “in exchange for the United States

Attorney entering into [the] [23] Plea Agreement and accompanying [24] Plea

Supplement.” Id. at 6.

At his change-of-plea hearing, Evans had the following exchange with the

Court:

THE COURT: Did you have an opportunity to—to read the plea
agreement and plea supplement, discuss those two
documents with Ms. Allred before you signed them?

EVANS: Yes, ma’am.

THE COURT: Alright. Did you have an opportunity to ask her any
questions that you had about those documents
before you signed them?

EVANS: Yes, ma’am.

THE COURT: Do you feel like you fully understand the contents of
both that plea agreement and the supplement?

EVANS: Yes, ma’am.

Change of Plea Hr’g [36] at 12:55–13:17. The Government then read the collateral-

review waiver verbatim into the record. Id. at 15:07–15:55. And Evans stated that

he agreed to all the terms in the [23] Plea Agreement and [24] Plea Supplement,

including those that were read aloud. Id. at 16:58–17:09. Shortly after, the Court

ensured that Evans had discussed the waivers with his attorney:

THE COURT: Do you understand that, through those waivers, if I
sentence you to a sentence that’s higher than you
may anticipate that through those waivers you’ve
given up your right to appeal that to a higher court?

EVANS: Yes, ma’am.

2
Case 2:22-cr-00035-KHJ-MTP Document 38 Filed 12/19/24 Page 3 of 7

THE COURT: Now have you discussed the waivers with Ms.
Allred?

EVANS: Yes, ma’am.

THE COURT: Have you had the opportunity to ask her any
questions that you had about those waivers?

EVANS: Yes, ma’am.

Id. at 18:02–18:22.

The Court later sentenced Evans to 14 years and 1 month of imprisonment

followed by 5 years of supervised release. J. [30] at 1–3. Consistent with his appeal

waiver, Evans did not appeal, but ten months later, he moved to collaterally attack

his conviction and sentence under Section 2255. See [34].1 He raises six grounds for

vacating his conviction and sentence:

1. The words “detectable amount of methamphetamine” in the [10]
Indictment were unconstitutionally vague. See id. at 3.

2. The [10] Indictment did not include every fact used for sentencing. See
id. at 3–4.

3. A jury needed to determine every fact related to sentencing. See id. at
4–8.

1 Failure to raise a claim on direct review procedurally bars that claim in collateral

proceedings unless a defendant can show (1) “cause and actual prejudice” or (2) actual
innocence. United States v. Cuff, 79 F.4th 470, 476 (5th Cir. 2023) (cleaned up). Since
Evans did not appeal his conviction, he may have procedurally defaulted his claims. See id.
But when raising the procedural bar sua sponte, the Court must give the defendant “notice
of the default bar” and “the opportunity to argue against it . . . .” United States v. Allen, 918
F.3d 457, 460 (5th Cir. 2019). As explained below, however, Evans’s [34] Motion fails
because he waived the right to collateral review, so the Court need not raise the procedural
bar or reach the merits of his claims. See United States v. Scruggs, 691 F.3d 660, 671 (5th
Cir. 2012).

3
Case 2:22-cr-00035-KHJ-MTP Document 38 Filed 12/19/24 Page 4 of 7

4. The Court unconstitutionally sentenced him based on the weight of a
mixture containing methamphetamine rather than the weight of the
methamphetamine within the mixture. See id. at 6–7.

5. The Court violated his Second Amendment rights by increasing his
Guideline range for possessing a firearm in connection with the
offense. See id. at 8–11.

6. The Bureau of Prisons denied him seven months of presentence jail
time. Id. at 11–12.

The Court now considers Evans’s [34] Motion under Rule 4(b) of the Rules

Governing Section 2255 Proceedings for the United States District Courts.

II. Standard

When “it plainly appears from the [Section 2255] 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 . . . .” R. Governing Section 2255 Proc. for

the U.S. Dist. Cts. 4(b); see also § 2255(b) (permitting denial of motion without

hearing when “the files and records of the case conclusively show that the prisoner

is entitled to no relief”).

A defendant may validly waive the right to collateral review under Section

2255 in a plea agreement. United States v. Crain, 877 F.3d 637, 640 n.1 (5th Cir.

2017). Such waivers bar collateral review if they are (1) knowing and voluntary and

(2) apply “to the circumstances at hand, based on the plain language of the

agreement.” United States v. Barnes, 953 F.3d 383, 386 (5th Cir. 2020) (cleaned up).

A “waiver is both knowing and voluntary if the defendant indicates that he read and

understood the agreement and the agreement contains an explicit, unambiguous

waiver of” collateral review. United States v. Kelly, 915 F.3d 344, 348 (5th Cir.

4
Case 2:22-cr-00035-KHJ-MTP Document 38 Filed 12/19/24 Page 5 of 7

2019) (cleaned up). Even so, a defendant may avoid a waiver on three grounds:

ineffective assistance of counsel, a sentence exceeding the statutory maximum, or

an insufficient factual basis for a guilty plea. Barnes, 953 F.3d at 388–89; Crain,

877 F.3d at 645. Otherwise, if a collateral-review waiver is enforceable, a court may

raise and enforce the waiver sua sponte. United States v. Del Toro-Alejandre, 489

F.3d 721, 722–23 (5th Cir. 2007).

III. Analysis

The Court denies Evans’s [34] Motion and dismisses his first five claims with

prejudice as barred by his collateral-review waiver. See id.; [23] at 5. Since Evans’s

sixth claim challenges the execution of his sentence, the Court dismisses it without

prejudice for lack of jurisdiction because it is not cognizable under Section 2255. See

Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).

A. Claims Challenging the Validity of the Sentence

The record conclusively shows that Evans’s collateral-review waiver is valid

and bars him from bringing this Section 2255 [34] Motion collaterally attacking his

conviction and sentence. See Barnes, 953 F.3d at 386. First, Evans’s waiver was

knowing and voluntary. At his rearraignment, Evans stated that he read the [23]

Plea Agreement containing the unambiguous collateral-review waiver, spoke about

the agreement and waiver with his attorney, and fully understood the agreement.

[36] at 12:55–13:17, 16:58–17:09, 18:00–18:22. The Court finds that Evans

knowingly and voluntarily waived his rights because he acknowledged reading and

understanding the [23] Plea Agreement. See Kelly, 915 F.3d at 348.

5
Case 2:22-cr-00035-KHJ-MTP Document 38 Filed 12/19/24 Page 6 of 7

Second, Evans waived his right to collaterally attack his conviction and

sentence “on any ground whatsoever.” [23] at 5. Thus, the waiver encompasses all

the grounds for relief that Evans now raises. Additionally, nowhere does Evans

raise any grounds that would permit him to avoid the waiver. His [34] Motion does

not argue that he received ineffective assistance of counsel regarding the [23] Plea

Agreement, and he fails to otherwise challenge the collateral-review waiver at all.

See [34]. As a result, the Court finds that the waiver precludes him from bringing

this Section 2255 [34] Motion.

B. Claim Challenging the Execution of the Sentence

In his last ground for relief, Evans asks the Court to grant him seven months

of presentence jailtime that he alleges the Bureau of Prisons (BOP) has not credited

to him. [34] at 11–12. But a Section 2255 motion filed in the sentencing court may

only challenge a sentence’s validity. Pack, 218 F.3d at 452; see also § 2255(a).

Evans’s request to review the alleged denial of jailtime credit doesn’t challenge the

validity of his sentence; it attacks the BOP’s “determination of its duration.” Pack,

218 F.3d at 451. Thus, the proper vehicle for Evans to contest the denial of jailtime

credit is a petition for a writ of habeas corpus under 28 U.S.C. § 2241. See id.

Because the Court issuing a writ of habeas corpus must have jurisdiction

over a prisoner’s custodian, the petition “must be filed in the same district where

the prisoner is incarcerated.” Id.; accord Rumsfeld v. Padilla, 542 U.S. 426, 443

(2004). Thus, this Court cannot simply construe Evans’s present claim as a Section

2241 petition because it lacks jurisdiction to hear it. See Rumsfeld, 542 U.S. at 443.

6
Case 2:22-cr-00035-KHJ-MTP Document 38 Filed 12/19/24 Page 7 of 7

Evans is incarcerated in the District of South Carolina. See Envelope [34-1]. So he

must bring a Section 2241 petition in that district instead.

IV. Conclusion

For the reasons stated above, the Court DENIES Evans’s [34] Motion to

vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, and it finds that a

Certificate of Appealability should not issue because Evans has failed to make a

substantial showing of the denial of a constitutional right. It DISMISSES WITH

PREJUDICE all his claims except for his presentence-jailtime claim, which the

Court DISMISSES WITHOUT PREJUDICE. In doing so, the Court has considered

all the parties’ arguments. Those arguments not addressed would not have altered

the Court’s decision.

The Clerk is instructed to docket a copy of this Order in the civil case, Evans

v. United States, 2:24-CV-192-KHJ, and to close the civil case.

SO ORDERED, this 19th day of December, 2024.

s/ Kristi H. Johnson
UNITED STATES DISTRICT JUDGE

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