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United States v. Reeves

United States District Court, N.D. Florida, Gainesville Division

December 8, 2017

UNITED STATES OF AMERICA,
v.
GEORGE CLAY REEVES

          REPORT AND RECOMMENDATION

          GARY R. JONES, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court upon Petitioner's Second Amended Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody (ECF No. 66), and the Government's Response thereto. (ECF No. 70.) The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the Court concludes that Petitioner has not raised any issue requiring an evidentiary hearing and that the § 2255 Motion should be denied. See Rules 8(a) and (b) Governing § 2255 Cases.

         I. BACKGROUND

         On June 24, 2008, a grand jury returned a one-count indictment charging Petitioner with Possession of Counterfeit Obligations in violation of 18 U.S.C. § 472. (ECF No. 1.) On June 30, 2008, Petitioner appeared for his initial appearance, was appointed counsel, and was ordered detained. (ECF No. 7.) On July 22, 2008, a grand jury returned a superseding indictment adding a second count for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e). (ECF No. 15.) On July 30, 2008, Petitioner appeared before the Court on the superseding indictment and was again arraigned and ordered detained. (ECF Nos. 20-23.)

         On August 25, 2008, Petitioner appeared before United States Magistrate Judge Allan Kornblum for the purpose of considering Petitioner's entry of a plea of guilty to the indictment. (ECF No. 36.) On that date, Judge Kornblum entered a report and recommendation recommending that the District Court accept Petitioner's plea of guilty. Id. On August 27, 2008, United States District Judge Stephan P. Mickle accepted the plea. (ECF No. 38.)

         Upon entry of the guilty plea, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). The Final PSR grouped Counts One and Two into a single count pursuant to U.S.S.G. § 3D1.2(c). (ECF No. 68, PSR ¶ 21.) The PSR further reflected that Petitioner had a base offense level of 24. Id. at ¶ 23. The PSR further determined Petitioner was subject to a Chapter Four Enhancement under the provision of §924(e) of the Armed Career Criminal Act (“ACCA”). Id. at ¶ 30. Petitioner's total offense level was 31. Id. at ¶ 32. Petitioner's criminal history category was VI. Id. at ¶ 49. The applicable guidelines range was 188 to 235 months. Id. at ¶ 87.

         On November 3, 2008, Judge Mickle sentenced Petitioner to 211 months of imprisonment as to each count (to run concurrently), a three-year term of supervised release as to Count One, a five-year term of supervised release as to Count Two, and a $200 Special Monetary Assessment. (ECF No. 47.) The Court entered the judgment against Petitioner on November 25, 2008. (ECF No. 48.)

         Petitioner did not file an appeal to the Eleventh Circuit Court of Appeals, nor did he file a Motion for Certiorari in the United States Supreme Court. On October 15, 2015, Petitioner signed his first § 2255 Motion, nearly seven years after entry of final judgment in his criminal case. (ECF No. 58 at 5.) On November 12, 2015, Petitioner filed a First Amended Motion to Vacate, which is currently pending before the Court. (ECF No. 61.) On December 2, 2015, the Government filed a Response to the First Amended Motion (ECF No. 64), and on December 21, 2015, Petitioner filed a Reply. (ECF No. 65.) On June 24, 2016, Petitioner filed a Motion for Leave to File a Second Amended Motion (ECF No. 66), to which the Government filed a Response (ECF No. 70.)

         As an initial matter, the Court grants Petitioner's request for leave to file a Second Amended Motion and accepts Petitioner's Second Amended Motion for filing. It should be noted, however, that in an effort to construe the instant § 2255 petition in the light most favorable to Petitioner, a pro se litigant, the Court, in rendering this opinion, has reviewed the arguments raised in Petitioner's previously filed Motions. The Court will further utilize the date Petitioner signed his initial § 2255 petition for the purpose of calculating the statute of limitations.

         Petitioner argues he is not an armed career criminal under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), because his four prior convictions for simple burglary were used to enhance his sentence under the ACCA's now-unconstitutional residual clause. (ECF No. 59 at 2; ECF No. 61 at 4; ECF No. 65 at 1.) Petitioner argues Florida burglary does not fall within the ACCA's enumerated offense of burglary, and thus his sentence could only have been enhanced using the residual clause. (ECF No. 66 at 3.) Further, although Petitioner admits he has “a record of various drug crimes, ” he maintains those drug crimes are not serious drug offenses under the ACCA. Id.

         II. ANALYSIS

         A. General Legal Standard

         Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to Section 2255 are extremely limited. A prisoner is entitled to relief under Section 2255 if the court imposed a sentence that: (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation Ahas probably resulted in the conviction of one who is actually innocent . . . .”

         An evidentiary hearing is unnecessary when “the motion and files and records conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b); Rosin, 786 F.3d at 877; Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 F.3d at 1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled to a hearing, a defendant must allege facts that, if true, would prove he is entitled to relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not required on frivolous claims, conclusory allegations unsupported by specifics, or contentions that are wholly unsupported by the record. See Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (explaining that 'a district court need not hold a hearing if the allegations [in a ' 2255 motion] are . . . based upon unsupported generalizations”) (internal quotation marks omitted); Pe ...


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