United States District Court, M.D. Florida, Fort Myers Division
IMMANUEL T. GILCHRIST, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE.
matter comes before the Court on petitioner's Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr.
Doc. #60) filed on June 17, 2016, by appointed
counsel pursuant to Johnson v. United States, 135
S.Ct. 2551 (2015) and Welch v. United States, 136
S.Ct. 1257 (2016). (Cr. Doc. #59.) On July 20, 2016, the
Court stayed the case pending review by the United States
Supreme Court in a case having direct impact on
petitioner's ability to obtain relief. (Cv. Doc. #8.) On
March 6, 2017, the United States Supreme Court affirmed the
Eleventh Circuit in Beckles v. United States, 137
S.Ct. 886 (2017), and determined that the Sentencing
Guidelines are not subject to a constitutional challenge for
vagueness possibly foreclosing relief for petitioner. As a
result, on March 20, 2017, the Court lifted the stay and
directed petitioner to notify the Court if the motion was due
to be dismissed, or if petitioner wished to proceed. (Cv.
1, 2017, the Federal Public Defender's Office filed an
Unopposed Motion to Withdraw as Counsel (Cv. Doc. #14)
seeking to withdraw from further representation. Counsel
notified petitioner by certified mail, received
acknowledgement that petitioner signed for the letter,
however petitioner has not indicated how he would like to
proceed. Counsel asks that petitioner be permitted to proceed
pro se. The Court will allow the Federal Public
Defender to withdraw as counsel of record.
11, 2003, a federal grand jury in Fort Myers, Florida
returned a one-count Indictment (Cr. Doc. #7) charging
petitioner with possession with intent to distribute 5 grams
or more of crack cocaine. Petitioner entered a plea of guilty
pursuant to a Plea Agreement (Cr. Doc. #20), which was
accepted, and petitioner was adjudicated guilty. (Cr. Doc.
#24.) On December 16, 2003, the Court sentenced petitioner as
a career offender to a term of imprisonment of 188 months,
to be followed by a term of supervised release. (Cr. Doc.
#29.) Judgment (Cr. Doc. #30) was filed on December 16, 2003.
Petitioner did not appeal to the Eleventh Circuit and the
conviction became final 14 days after the December 16, 2003
Judgment. See Mederos v. United States, 218 F.3d
1252, 1253 (11th Cir. 2000). Under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), federal
prisoners have one year from the latest of any of four events
to file a § 2255 Motion:
(1) the date on which the judgment of conviction becomes
(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
(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). Petitioner filed his motion
pursuant to Section 2255(f)(3). However, it is clear from a
review of the underlying criminal docket that petitioner was
not sentenced under the Armed Career Criminal Act, and
therefore Johnson and Beckles do not apply
to extend the statutory time limitation of one year from the
date petitioner's conviction became final. Therefore, the
motion will be dismissed as untimely.
argues that Beckles may not have foreclosed relief
for petitioner, however because petitioner's motion was
based on Johnson, which does not entitle petitioner
to relief, the motion must be denied. The Court notes that
petitioner was released from his term of imprisonment on or
about April 7, 2017. Any eligibility for a reduction in the
term of imprisonment is now moot.
it is hereby
1. The Federal Public Defender's Unopposed Motion to
Withdraw as Counsel (Cv. Doc. #14) is GRANTED. The Federal
Public Defender's Office is relieved of further
responsibility in this case, without prejudice, and no
further action will be taken with regard to the appointment.
The Clerk ...