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Henning v. United States

United States District Court, M.D. Florida, Fort Myers Division

May 8, 2017

JASON ALLEN HENNING, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE

         This 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)[1] 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.

         I.

         On 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.)

         In 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.)

         Judgment (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. 2000).

         II.

         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 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). 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.

         Petitioner 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 ...


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