BEFORE THE COURT is Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Dkt. 1). According to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts, a judge "must dismiss the motion" when it "plainly appears . . . that the moving party is not entitled to relief." Petitioner's motion is untimely and does not warrant relief. Therefore, it must be denied.
Petitioner was charged by Indictment with one count of conspiracy to possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of crack cocaine, and four counts of distributing crack cocaine (CR Dkt. 1). On August 1, 2007, Petitioner pleaded guilty pursuant to a written plea agreement*fn1 (CR Dkts. 16, 19). On November 7, 2007, Petitioner was sentenced as a career offender under U.S.S.G. § 4B1.1 to two hundred sixty-two (262) months imprisonment to be followed by five years of supervised release (CR Dkts. 28, 30). Petitioner did not appeal.
Petitioner signed his original Section 2255 motion on February 21, 2011 (CV Dkt. 1). Petitioner claims that he is actually innocent of his career offender sentence because he did not have at least two qualifying prior convictions as defined in U.S.S.G. § 4B1.1. Specifically, he argues that his prior conviction under Section 893.13(1), Fla. Stat., was not a qualifying controlled substance offense under U.S.S.G. § 4B1.1. Petitioner further argues that this Court lacked jurisdiction to impose the career offender sentence since Petitioner did not have at least two qualifying prior convictions.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996, establishes a one-year limitation period for Section 2255 motions. See Goodman v. United States, 151 F.3d 1335, 1336 (11th Cir. 1998). Specifically, Section 2255 provides that the one-year limitation shall run from the latest of:
(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 to cases 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.
28 U.S.C. § 2255(f). See also Pruitt v. United States, 274 F.3d 1315, 1317 (11th Cir. 2001). Petitioner pleaded guilty and judgment was entered on November 7, 2007 (CR Dkt. 30). Petitioner filed no direct appeal. Consequently, under the appellate rules in effect when the judgment was entered, Petitioner's conviction became final on November 24, 2007, when the ten-day period for filing a notice of appeal expired. Fed. R. Crim. P. 45(a)(1); Fed. R. App. P. 4(b)(1)(A)(I) (West 2005). Petitioner had until November 24, 2008, to timely file a Section 2255 motion. Petitioner did not file his original Section 2255 motion until more than two years after the expiration of Section 2255's one-year limitation. Accordingly, the motion is time-barred.
Petitioner argues that his Section 2255 motion is timely under 28 U.S.C. § 2255(f)(3) because he filed it within one year of the decision in Johnson v. United States, 130 S.Ct. 1265 (2010). In Johnson, the United States Supreme Court held that, under Florida law, a felony battery conviction is not a "violent felony" under the Armed Career Criminal Act. Relying upon 28 U.S.C.§ 2255(f)(3), Petitioner argues that Johnson established a new substantive rule of law that applies retroactively on collateral review and, consequently, the March 2, 2010, decision in Johnson triggered the start of his federal limitation for timely filing a Section 2255 motion. See 28 U.S.C. § 2255(f)(3). Petitioner's argument lacks merit.
First, for Petitioner to avail himself of the date of the Johnson decision to establish the timeless of his motion under Section 2255(f)(3), he must demonstrate that Johnson applies retroactively. Johnson includes no statement from the Supreme Court that the decision applies retroactively to cases on collateral review. No binding Eleventh Circuit decision requires retroactive application of Johnson to Petitioner's Section 2255 motion, and he cites no legal authority to support his contention that ...