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Alterma v. United States

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

August 17, 2017

JERMAINE ALTERMA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         Because 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.”).

         Background[2]

         On July 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. 18).

         Alterma 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 (“ACCA”).

         Alterma 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).

         Subsequently, 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).

         Analysis

         a. Alterma's 28 U.S.C. § 2255 motion is time-barred

         Generally, 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).

         Alterma 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).[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 of limitations.[4]

         Nor is 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.

         b. Johnson does not apply to ...


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