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Marion v. United States

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

December 11, 2017

PERRY MARION, 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 Supplemental Motion to Vacate Under 28 U.S.C. § 2255 (Doc. #13) filed on August 1, 2016, with permission. The government filed a Response in Opposition (Doc. #14) on August 23, 2016. For the reasons stated herein, the Court finds that the supplemental motion is time-barred, or alternatively foreclosed by precedent.

         On June 22, 2016, the Court issued an Opinion and Order (Cv. Doc. #9) dismissing petitioner's original Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Cv. Doc. #1) from the February 22, 2007 Criminal Judgment (Cr. Doc. #43) as time-barred, and alternatively denying the motion on the merits. Judgment (Cv. Doc. #10) was issued, and the case was closed.

         On June 27, 2016, petitioner's letter motion to supplement (Cv. Doc. #11) was filed with the Court seeking to supplement his motion in light of Johnson v. United States, 135 S.Ct. 2551 (2015), which is retroactively applicable pursuant to Welch v. United States, 136 S.Ct. 1257 (2016). Finding that the Opinion and Order and petitioner's motion likely crossed in the mail, the Court vacated the Judgment and reopened the case to allow the supplemental motion to proceed. (Cv. Doc. #12.) The supplemental motion is now before the Court.

         At sentencing, petitioner was subject to a sentence enhancement as a career offender as defined by United States Sentencing Guidelines Manual §4B1.1.[1] Petitioner qualified because he was 39 when he committed the current felony controlled substance offense, and he had at least two prior felony convictions of either a crime of violence or a controlled substance offense. More specifically, petitioner had three prior convictions for the sale or delivery of cocaine, which enhanced his Total Offense Level from 23 to 34. (Presentence Report, ¶ 33.) Petitioner argues that he was sentenced as an Armed Career Criminal and as a Career Offender, and that the prior convictions fall under the residual clause for both enhancements. Petitioner argues that the predicate offenses are no longer crimes of violence, but petitioner understands that his argument could be foreclosed by a ruling in Beckles v. United States.

         As a preliminary matter, petitioner was not sentenced under the Armed Career Criminal Act. Further, on March 6, 2017, the United States Supreme Court affirmed the Eleventh Circuit in Beckles v. United States, 137 S.Ct. 886 (2017), and determined that the Sentencing Guidelines are not subject to a constitutional challenge for vagueness. This forecloses the relief for petitioner who was sentenced under the career offender guidelines. The Court notes that the additional arguments are without merit because the predicate offenses were all controlled substance offenses, and not crimes of violence.

         Since petitioner's sentence was not enhanced under the ACCA, Johnson does not apply to extend the statutory time limitation of one year from the date petitioner's conviction became final. Therefore, petitioner's supplemental motion will be dismissed as untimely.

         Accordingly, it is hereby

         ORDERED:

         1. Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Cv. Doc. #1) remains DISMISSED or alternatively DENIED as set forth in the Opinion and Order (Doc. #9) filed on June 22, 2016.

         2. Petitioner's Supplemental Motion to Vacate Under 28 U.S.C. § 2255 (Doc. #13) is DISMISSED as time-barred, and alternatively is DENIED on the merits.

         3. The Clerk shall issue an Amended Judgment dismissing petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Cv. Doc. #1) and the Supplemental Motion (Doc. #13) as DISMISSED or alternatively DENIED as set forth in the Opinion and Order (Doc. #9) and this Opinion and Order, respectively.

         4. The Clerk is further directed to place a copy of the civil Amended Judgment in the criminal file, and close the civil case.

         IT IS ...


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