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. #74)filed on June 28, 2016. The Court granted
the government's motion to stay because Beckles v.
United States, 616 F.App'x 415 (11th Cir. 2015) was
pending certiorari review, and would directly impact
petitioner. (Cv. Doc. #8.) On March 20, 2017, the Court
lifted the stay and directed the government to respond, or
file a motion to dismiss based on the United States Supreme
Court's decision in Beckles v. United States,
137 S.Ct. 886 (2017). The government eventually filed a
Motion to Dismiss the Petitioner's Petition Nunc Pro
Tunc (Cv. Doc. #12) on May 1, 2017.
29, 2013, a federal grand jury in Fort Myers, Florida
returned a two-count Superseding Indictment (Cr. Doc. #16)
charging petitioner in Count One with being in possession of
a firearm after having been convicted of a felony,
specifically: (1) fleeing and eluding a police, officer in
violation of Fla. Stat. § 316.1935(3) in Lee County; and
(2) burglary of a conveyance in violation of Fla. Stat.
§ 810.02 in Lee County, all in violation of Title 18,
United States Code, Sections 922(g)(1) and 924(a)(2).
Petitioner was also charged in Count Two with brandishing and
carrying a firearm during and in relation to a crime of
violence, and possessing the firearm in furtherance of a
crime of violence (robbery).
December 13, 2013, petitioner entered a plea of guilty as to
Count One of the Superseding Indictment pursuant to a Plea
Agreement (Cr. Doc. #55), (Cr. Docs. ## 58, 61.) The plea was
accepted, and petitioner was adjudicated guilty as to Count
One. (Cr. Doc. #63.) Counsel filed a Sentencing Memorandum
(Cr. Doc. #67) on behalf of petitioner, and on March 17,
2014, the Court sentenced petitioner to a term of
imprisonment of 96 months as to Count One, followed by a term
of supervised release, and dismissed Count Two of the
Superseding Indictment pursuant to the government's
motion. (Cr. Doc. #70.) Judgment (Cr. Doc. #71) was filed on
March 18, 2014. Petitioner did not file a direct appeal with
the Eleventh Circuit, and the conviction became final 14 days
after the Judgment on April 1, 2014. See Mederos v.
United States, 218 F.3d 1252, 1253 (11th Cir. 2000).
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). Under Section 2255(f)(1),
petitioner had one year from his conviction becoming final,
or until on or before April 1, 2015, to file his § 2255
motion. 28 U.S.C. § 2255(f). Giving petitioner the
benefit of the mailbox rule, his motion under § 2255 was
signed and executed for filing on June 22, 2016. Since this
date is after the April 1, 2015 deadline, the motion is due
to be dismissed as untimely.
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 ...