United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE
Jermaine Alterma (“Petitioner” or
“Alterma”) initiated this action by filing a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255 on June 10, 2016 (Doc. 1). The
United States filed a response to the § 2255 motion on
September 12, 2016 (Doc. 8). Alterma filed a reply
on October 20, 2016 (Doc. 10). After due
consideration, the Court finds that Alterma's § 2255
motion should be dismissed as time-barred, or alternatively,
denied on the merits.
each of the claims raised in the § 2255 motion is either
time-barred, procedurally barred, contrary to law, or
affirmatively contradicted by the record, an evidentiary
hearing is not required. See Holmes v. United
States, 876 F.2d 1545, 1553 (11th Cir. 1989) (“A
hearing is not required on patently frivolous claims or those
which are based upon unsupported generalizations. Nor is a
hearing required where the petitioner's allegations are
affirmatively contradicted by the record.”).
24, 2013, a grand jury indicted Alterma on one count of
conspiring to possess cocaine with intent to distribute it,
in violation of 21 U.S.C. § 846; two counts of
distributing cocaine, in violation of 21 U.S.C. §
841(a)(1); one count of possessing cocaine with intent to
distribute it, in violation of 21 U.S.C. § 841(a)(1);
and one count of being a convicted felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g) (Cr.
entered into a plea agreement with the government in which he
agreed to plead guilty to the drug charges in exchange for
dismissal of the felon-in-possession firearm charge (Doc.
44). Based upon Alterma's prior convictions for felony
battery and the sale of cocaine, the probation office
determined that he was a career offender as defined in §
4B1.1 of the United States Sentencing Guidelines
(“USSG”) (Cr. 51, PSR at ¶ 29). Alterma
received a guidelines sentence of 156 months in prison and
three years of supervised release (Cr. 55, 57). Alterma was
not sentenced under the Armed Career Criminal Act
appealed his sentence (Cr. 59). On January 7, 2015,
the Eleventh Circuit granted the government's motion to
dismiss the appeal based on the appeal waiver in
Alterma's plea agreement (Cr. 77).
Alterma filed this § 2255 motion in which he asserts
that he should be resentenced in light of the United States
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015) because he is no longer a
“career offender” under the Sentencing Guidelines
(Doc. 1 at 4).
Alterma's 28 U.S.C. § 2255 motion is
a § 2255 motion must be filed within one-year of
“the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255(f)(1). Alterma's
direct appeal was denied on January 7, 2015 (Cr.
77). Alterma's conviction became final on April 6,
2015, when his time for seeking certiorari review expired.
See Clay v. United States, 537 U.S. 522, 532 (2003).
Accordingly, Alterma was required to seek relief under §
2255 before April 7, 2016. Akins v. United States,
204 F.3d 1086, 1089 n. 1 (11th Cir. 2000). However, he did
not file the instant § 2255 until June 3, 2016, almost
two months too late (Doc. 1 at 12).
acknowledges that his § 2255 motion is untimely, but
urges that the United States Supreme Court's decision in
Johnson triggered the start of a new one-year
limitations period under 28 U.S.C. §
2255(f)(3). Specifically, Alterma argues that his
§ 2255 motion is timely because he raises a right to
relief based upon Johnson, which was decided on June
26, 2015-giving him through June 26, 2016 to file his
petition (Doc. 1 at 10). Alterma claims
that, in light of Johnson, he is entitled to
consideration of the merits of his claims. In
Johnson, the Supreme Court held that the residual
clause of the ACCA was unconstitutionally vague and deprived
defendants of due process. 135 S.Ct. at 2557. However,
Alterma was sentenced under the United States Sentencing
Guidelines, not the ACCA. In Beckles v. United
States, 137 S.Ct. 886 (2017), the Supreme Court
determined that the Sentencing Guidelines were not subject to
a void for vagueness challenge under the Fifth
Amendment's Due Process Clause. Thus, Alterma cannot
utilize Johnson to circumvent the one-year statute
Alterma entitled to equitable tolling. Equitable tolling is
available only when a petitioner establishes both
extraordinary circumstances that prevented timely filing and
due diligence. Diaz v. Sec'y, Fla. Dep't of
Corr., 362 F.3d 698, 701 (11th Cir. 2004); see also
Holland v. Florida, 560 U.S. 631 (2010) (recognizing
that a petitioner is entitled to equitable tolling only if he
shows that he has been pursuing his rights diligently and
that some extraordinary circumstance stood in his way to
prevent timely filed). Alterma has presented no viable
argument to excuse his failure to timely pursue a § 2255
motion to vacate, and his challenges to his federal sentence
are, therefore, time-barred.
Johnson does not apply to ...