United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE
THE COURT are the Government's motion to dismiss
(cv Dkt. 8) in which it argues that Petitioner's Section
2255 is time-barred, and Petitioner's opposition (cv Dkt.
9). Upon consideration, the motion to dismiss is GRANTED.
was charged by Information with conspiracy to interfere with
commerce by robbery in violation of 18 U.S.C. § 1951(a)
and 2 (Count One), and discharging a firearm in furtherance
of a crime of violence in violation of 18 U.S.C. §
924(c)(1)(A)(iii) (Count Two) (cr Dkt. 21). He pleaded guilty
to both counts (cr Dkts. 28, 32, 54). On October 28, 2014, he
was sentenced to a total of 144 months in prison; 24 months
as to Count One, and 120 months as to Count Two, consecutive
to Count One (cr Dkts. 41, 54). He did not appeal.
AEDPA established a limitation period for Section 2255
motions: "A 1-year period of limitation shall apply to a
motion under this section. The limitation period shall run
from the latest of .. the date on which the judgment of
conviction becomes final.. ." 28 U.S.C. §
2255(f)(1). Because Petitioner's convictions were final
in March 2015,  the limitations period expired in March
2016. His motion was filed in June 2016, more than two months
after the limitations period expired. Accordingly, his motion
to vacate is untimely under Section 2255(f)(1).
relies on Johnson v. United States, 135 S.Ct. 2551
(2015), for a delayed limitation period under Section §
2255(f)(3) (see cv Dkt. 1, docket p. 12). Section
2255(f)(3) begins the limitation period on "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
held that the "residual clause" of the Armed Career
Criminal Act (ACCA), see 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague. Notwithstanding,
Petitioner was not sentenced under the ACCA. His consecutive
sentence on Count Two was mandated by Section 924(c) for
discharging a firearm. Johnson, therefore, is
inapplicable to his sentence. Accordingly, he is not entitled
to the benefit of § 2255(f)(3)'s commencement date.
See, e.g., Bell v. United States, 2017 U.S. Dist.
LEXIS 38739, at *7 (M.D. Ala. Mar. 16, 2017) ("Because
Alleyne [v. United States, 133 S.Ct. 2151
(2013)] is inapplicable to Bell's sentence, §
2255(f)(3) does not apply to his claim under
Alleyne, and Bell cannot rely on Alleyne to
make his § 2255 motion timely under
argues that Johnson extends to his conviction
because § 924(c)'s "residual clause" is
similarly worded to the ACCA's "residual
clause." His argument is without merit because neither
the Supreme Court nor the Eleventh Circuit Court of Appeals
"has extended Johnson's § 924(e)
residual clause ruling to conclude that the §
924(c)(3)(B) residual clause is unconstitutionally
vague." United States v. Langston, 662
Fed.Appx. 787, 794 (11th Cir. 2016) (unpublished).
Petitioner's Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 (cv Dkt. 1) is
DISMISSED as time-barred. The Clerk is directed to enter
judgment against Petitioner and close this case.
has no right to appeal the dismissal of his motion. 28 U.S.C.
§ 2253(c)(1). Rather, a certificate of appealability
(COA) must first issue. 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 that showing, he must show that
reasonable jurists would find debatable both (1) the merits
of the underlying claims and (2) the procedural issues he
seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 478 (2000). He cannot make that
showing. Since he is not entitled to a COA, he is not
entitled to appeal in forma pauperis.