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Hayes v. United States

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

May 12, 2017

COREY HAYES, 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. #45)[1] filed on July 1, 2016. The government filed a Response (Cv. Doc. #9) on September 6, 2016.

         I.

         On October 8, 2008, a federal grand jury in Fort Myers, Florida returned a one-count Indictment (Cr. Doc. #1) charging petitioner with possession with intent to distribute 100 grams or more of heroin. On January 6, 2009, petitioner appeared before the Magistrate Judge and entered a plea of guilty as to Count One, pursuant to a Plea Agreement (Cr. Doc. #18). (Cr. Doc. #22.) The plea was accepted and petitioner was adjudicated guilty. (Cr. Doc. #24.) On January 21, 2009, the government and counsel for petitioner filed a Notice of Parties Recommended Sentence Pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure (Cr. Doc. #25). On January 30, 2009, the Court entered an Order (Cr. Doc. #26) rejecting the portion of the Plea Agreement providing for an agreed-upon sentence and allowing petitioner the opportunity to withdraw his plea of guilty. On February 4, 2009, petitioner filed a Notice of Intent to Maintain Plea of Guilty (Cr. Doc. #28).

         On April 13, 2009, the Court sentenced petitioner to a term of imprisonment of 188 months, followed by a term of supervised release. (Cr. Doc. #31.) Judgment (Cr. Doc. #32) was filed on April 16, 2009. On June 11, 2014, petitioner filed a pro se Notice of Appeal (Cr. Doc. #36), however the appeal was dismissed for failure to prosecute on August 1, 2014 (Cr. Doc. #38).

         Subsequently, on December 10, 2014, petitioner sought the retroactive application of Amendment 782 of the United Sentencing Guidelines to his sentence pursuant to 18 U.S.C. § 3582(c)(2), and the Court appointed counsel to review petitioner's eligibility. (Cr. Docs. ## 39, 40.) On April 7, 2016, after notice of a determination that a motion would not be filed on behalf of petitioner because he was sentenced as a career offender and not based on the drug quantity table in U.S. Sentencing Guidelines Manual § 2D1.1(c), the Court relieved the Federal Public Defender as counsel of record. (Cr. Doc. #44.) On August 11, 2016, the Court denied petitioner's pro se motion for application of Amendment 782 finding that he was not eligible. (Cr. Doc. #48.)

         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). In this case, the Eleventh Circuit dismissed the appeal on August 1, 2014, and petitioner did not seek certiorari review. Under Section 2255(f)(1), petitioner had one year from his conviction becoming final, or until on or before November 2, 2015, to file his § 2255 motion. 28 U.S.C. § 2255(f); Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002) (a petitioner “gets the benefit of up to 90 days between the entry of judgment on direct appeal and the expiration of the certiorari period.”). Giving petitioner the benefit of the mailbox rule[1], his motion under § 2255 was signed and executed for filing on June 25, 2016. Since this date is more than 6 months after the November 2, 2015 deadline, the motion is due to be dismissed as untimely.

         Petitioner raises only one ground in his § 2255 motion, and has filed it pursuant to Section 2255(f)(3) based on the decision in Johnson v. United States, 135 S.Ct. 2551 (2015), 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. If Johnson applies to reduce petitioner's sentence, and the motion is not a successive petition, petitioner's ...


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