Opinion
Case No. 8:10-cv-972-T-24 TBM, 8:08-cr-289-T-24 TBM.
March 14, 2011
ORDER
This cause is before the Court upon Petitioner Jerry James Morris's motion to vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255. (Civ. Doc. No. 1; Cr. Doc. No. 28). The Government filed a motion to dismiss Petitioner's section 2255 motion as untimely. (Civ. Doc. No. 7). Petitioner filed a response to the motion to dismiss. (Civ. Doc. No. 8).
I. Background
II. Discussion
18 U.S.C. § 9229244B1.4 28 U.S.C. § 2255
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "established a mandatory, one-year `period of limitation' for § 2255 motions, which runs from the latest of the following events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence."Jones v. United States, 304 F.3d 1035, 1037-38 (11th Cir. 2002) (citing 28 U.S.C. § 2255(f)(1)-(4)). In this case, the Court entered Petitioner's judgment of conviction on February 19, 2009, and because Petitioner did not file a direct appeal of that judgment, it became final on March 5, 2009. See Fed.R.App.P. 4(b)(1). Accordingly, Petitioner's deadline to file his section 2255 motion was March 5, 2010. 28 U.S.C. § 2255(f)(1).
The Government moves to dismiss Petitioner's section 2255 motion, arguing that it is untimely as Petitioner filed his motion on April 22, 2010, after the one year period of limitation had expired. (Civ. Doc. No. 7 at 3). Petitioner contends that a substantive change in the law occurred with the Supreme Court's March 2, 2010 decision in Johnson v. United States, ___ U.S. ___, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010), and therefore, his motion is timely under 28 U.S.C. § 2255(f)(3). In Johnson, the Supreme Court held that a defendant's prior conviction for felony battery under Florida law was not a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Petitioner contends that the one year period of limitation runs from March 2, 2010, the date the Supreme Court decided Johnson.
The Court notes that while Petitioner's section 2255 motion was filed on April 22, 2010, Petitioner actually signed the motion on April 12, 2010. This discrepancy does not change the Court's analysis of the motion.
In the instant case, Petitioner was sentenced as an armed career criminal pursuant 18 U.S.C. § 924(e) based on his prior Florida state convictions for sale of cocaine, felony battery, and aggravated battery. See U.S.S.G. § 4B1.4(a) ("A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal."). Petitioner contends that, according to Johnson, his prior convictions for felony battery and aggravated battery no longer qualify as predicate offenses for purposes of his status as an armed career criminal. The decision of the Supreme Court in Johnson, however, has not been applied retroactively to post-conviction relief motions, and therefore provides no relief for Petitioner.
On June 21, 2010, in Gilbert v. United States, 609 F.3d 1159 (11th Cir. 2010), the Eleventh Circuit issued an opinion that the petitioner was actually innocent of being a career offender and thus was entitled to habeas relief pursuant to the 28 U.S.C. § 2255 savings clause. To reach this conclusion, the court found that Begay v. United States, 553 U.S. 137, 128 S. Ct. 1581, 1583, 170 L. Ed. 2d 490 (2008) (holding that the crime of driving under the influence of alcohol is not a violent felony) and United States v. Archer, 531 F.3d 1347 (11th Cir. 2008) (holding that the crime of carrying a concealed firearm is not a "crime of violence" for purposes of the career offender enhancement) are retroactive. That opinion, however, was vacated when the Eleventh Circuit decided to rehear the case en banc. Gilbert v. United States, 2010 U.S. App. LEXIS 233357, at *1-2 (11th Cir. Nov. 3, 2010). Therefore, Gilbert is not currently the law of this Circuit and cannot form the basis for the relief requested. If the rehearing en banc in the Gilbert case results in an opinion that affords relief to Petitioner, then Petitioner may file a motion based on that en banc opinion.
III. Conclusion
The Court hereby grants the Government's motion to dismiss Petitioner's section 2255 motion as untimely.
Accordingly, it is ORDERED AND ADJUDGED that the Government's motion to dismiss Petitioner's section 2255 motion as untimely (Civ. Doc. No. 7) is GRANTED. The Clerk is directed to close civil case 10-cv-972-T-24TBM and terminate any pending motions.
DONE AND ORDERED at Tampa, Florida, this 14th day of March, 2011.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial or dismissal of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE AND ORDERED at Tampa, Florida, this 14th day of March, 2011.