This cause is before the Court on William Martinez's untimely-filed 28 U.S.C. § 2255 motion to vacate, set aside, or correct an allegedly illegal sentence (hereinafter "motion" or "motion to vacate)." (Doc. CV-1; CR-187). A review of the record demonstrates that the motion must be denied.
Martinez alleges that the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010), should be applied retroactively. Martinez's motion must be dismissed. First, and most importantly, Martinez's motion is more than three years out of time. Martinez was sentenced in January 2006, filed a direct appeal in which counsel filed a motion to withdraw along with an Anders brief. The Eleventh Circuit granted counsel's motion to withdraw and affirmed Martinez's conviction and sentence in November 2006. Martinez had ninety days within which to file a writ of certiorari to the Supreme Court (February 2007) and did not, thus he had until February 2008 to file a § 2255 motion and failed to do so within that time period. Because of his failure to meet § 2255's time requirements his motion be denied.
Denial also is warranted by the fact that Martinez, as part of his plea agreement, knowingly and voluntarily waived his right to file a direct appeal or seek post-conviction relief. The claim raised in his § 2255 motion -- that the change in the statute should be applied retroactively -- does not fall within the narrow exception that precludes the enforcement of such waivers. Since the Government has adhered to its part of the bargain, Martinez's § 2255 must be dismissed for this reason also.
Martinez's motion is without merit and must be dismissed because Martinez does not raise any claims that his original sentence is unconstitutional.
On November 18, 2004, an indictment was returned by a grand jury in the Middle District of Florida charging Martinez and others with conspiracy to distribute and possession with intent to distribute 50 grams or more of cocaine base ("crack"), in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(iii) - Count One; possession with intent to distribute 50 grams or more of cocaine base ("crack"), in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) - Count Two; and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 841(b)(1)(C). (Doc. CR-1, PSR ¶¶ 2-3). Because Martinez was a career offender as defined by U.S.S.G. § 4B1.1, the statutory maximum penalty he could have received was life. PSR ¶ 31. On October 21, 2005, Martinez appeared before the Court and pled guilty, pursuant to a plea agreement with the Government, to Count One of the Indictment. Docs. CR-67, 71, PSR ¶ 7. As part of the plea agreement, Martinez acknowledged that he faced a mandatory minimum sentence of ten years up to life. (Doc. CR-67 at 1-2, ¶ 2-Minimum and Maximum Penalties).
Through the plea agreement, Martinez waived his appeal and post-conviction rights:
5. Appeal of Sentence-Waiver
The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant's sentence or to challenge it collaterally on any ground, including the ground that the court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by Title 18, United States Code, Section 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by Title 18, United States Code, Section 3742(a). (Doc. CR-67 at 11) (emphasis in original). The plea agreement was signed and executed by the parties on October 10, 2005, and accepted by this Court on November 22, 2005. (Doc. CR-85).
On January 10, 2006, a final presentence investigation report was issued in the case, which calculated the advisory Sentencing Guidelines at a base offense level of 32 under U.S.S.G. § 2D1.1, for 73.8 grams of crack cocaine and 195.4 grams of powder cocaine. PSR ¶¶ 20-21. After a total reduction of three points was applied for acceptance of responsibility, Martinez yielded a total offense level of 29. Id. at ¶¶ 27-29. Martinez is a career offender. The offense of conviction was a controlled substance offense and he had at least two prior felony convictions for either a crime of violence or a controlled substance offense, resulting in a total offense level of 37. Id. at ¶ 31-32. After applying an adjustment for acceptance of responsibility, Martinez yielded an enhanced offense level of 34. Martinez was assessed a total of eight criminal history points, resulting in a criminal history category of IV. Id. at 39-41. However, because Martinez is a career offender, in accordance with U.S.S.G. § 4B1.1, a career offender's criminal history category in every case shall be Category VI. Id. at ¶ 42. Thus, Martinez was subject to a Sentencing Guidelines range of 262 - 327 months imprisonment. Id. at ¶ 75. The PSR also stated that the statutory mandatory minimum penalty of not less than ten years imprisonment was applicable. Id. at 75.
Prior to sentencing, the government filed a motion to recognize Martinez's substantial assistance pursuant to U.S.S.G. § 5K1.1. Doc. CR-102. At the sentencing hearing on January 26, 2006, this Court granted the government's request for an additional two-level reduction which reduced the offense level to 32 with a sentencing range of 210 to 262 months. Doc. CR-126 at 6. Martinez was sentenced at the low end, to 210 months imprisonment. Martinez filed a notice of appeal on January 31, 2006. (Doc. CR-111). Subsequently, on June 19, 2006, Martinez's counsel filed an Anders brief and motion to withdraw as counsel. The Eleventh Circuit granted the motion to withdraw as appellant's counsel and entered judgment on November 28, 2006. Martinez did not seek review in the Supreme Court.
On March 21, 2008, Martinez filed a pro se motion, pursuant to § 3582(c)(2) and Amendment 706 to the United States Sentencing Guidelines, seeking a sentence reduction. (Doc. CR-141). Martinez's request was denied and this court cited to United States v. Tingle, 524 F.3d 839 (8th Cir. 2008), that found that the Sentencing Commission did not lower the sentencing range for career offenders, which is what set Mr. Tingle's sentencing range and is what also set Martinez's sentencing range. (Doc. CR-151). Martinez filed a notice of appeal. (Doc. CR-152, ...