United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR 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. #56) filed on June 27, 2016, arguing that his
guilty plea and sentence are unconstitutional under
Johnson v. United States, 135 S.Ct. 2551 (2015).
Petitioner also filed a motion seeking leave to file a
memorandum in support, Cv. Doc. #2, which was granted, and
petitioner was provided 30 days to file the memorandum. The
Court also directed the government to file a response. (Cv.
Doc. #6.) Petitioner sought another extension of time, Cv.
Doc. #10, which was also granted and petitioner was provided
an additional 45 days to file the memorandum. (Cv. Doc. #11.)
Petitioner did not file a memorandum in support, and on
August 30, 2016, the government filed a Motion to Dismiss
Motion as Untimely (Cv. Doc. #12). Petitioner did not file a
response to the motion to dismiss.
February 15, 2012, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #3)
charging petitioner with possession of child pornography in
violation of 18 U.S.C. § 2252(a)(4)(B) and §
2252(b)(2) (Count One), and distribution of child pornography
in violation of 18 U.S.C. § 2252(a)(2) and §
2252(b)(1) (Count Two). On August 6, 2012, petitioner entered
a plea of guilty to the distribution count pursuant to a Plea
Agreement (Cr. Doc. #26). (Cr. Doc. #30.) The plea was
accepted and petitioner was adjudicated guilty of Count Two
of the Indictment. (Cr. Doc. #32.)
advance of sentencing, counsel filed a Sentencing Memorandum
(Cr. Doc. #42) seeking a variance on petitioner's behalf,
and the government filed a Motion for Downward Departure of
Defendant's Sentence Based Upon Substantial Assistance
(Cr. Doc. #43). The Court granted the government's motion
for a downward departure by two levels bringing
petitioner's total offense level down to 35, and
petitioner had a criminal history category of I. (Cr. Doc.
#46; Cr. Doc. #50, p. 10.) At sentencing, counsel asked the
Court to consider a downward variance to 60 months. (Cr. Doc.
#50, p. 13.) After hearing from the government, the Court
granted the request in part. (Cr. Doc. #50, p. 29.) On March
4, 2013, the Court sentenced petitioner to a term of
imprisonment of 120 months, a term below the applicable
guideline range of 168 to 210 months of imprisonment based on
the number of images, followed by a term of supervised
release for life. (Cr. Doc. #44; Cr. Doc. #50, p. 10.)
(Cr. Doc. #47) was filed on March 5, 2013. Petitioner did not
appeal to the Eleventh Circuit, and the conviction became
final 14 days after the Judgment on March 19, 2013. See
Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir.
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 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
(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 would have had until
March 19, 2014 under Section 2255(f)(1) to file his Motion,
which was not filed until June 27, 2016. Therefore,
petitioner's motion is time-barred and will be dismissed.
seeks to file his motion pursuant to Section 2255(f)(3) based
on the decision in Johnson, and its retroactive
application by Welch v. United States, 136 S.Ct.
1257 (2016) to collateral review. In Johnson, the
United States Supreme Court held that the Armed Career
Criminal Act's residual clause is unconstitutionally
vague. Since petitioner's sentence was not enhanced under
the ACCA, Johnson does not apply to extend the
statutory time limitation of one year ...