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Dorvilus v. United States

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

May 15, 2017

DONAL BRUCE DORVILUS, 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. #74)[1]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.[2]

         I.

         On May 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).

         On 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).

         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). 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[3], 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.

         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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