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Churchwell v. United States

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

January 11, 2018

ALPHONSO CHURCHWELL, JR., 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. #45)[1]. The government filed a Motion to Dismiss the Movant's 2255 Motion in Light of Beckles v. United States (Cv. Doc. #14) on May 15, 2017. This motion seeks dismissal of the § 2255 motion on various grounds and, alternatively, denial of the motion on the merits. Petitioner filed a Response (Cv. Doc. #15) on May 30, 2017, asserting that there was no proper basis to dismiss the § 2255 motion, but conceding that binding precedent was against his substantive arguments. While some of the procedural issues may be debatable, current Eleventh Circuit precedent forecloses the relief petitioner requests. Therefore, petitioner's Motion Under 28 U.S.C. Section 2255 will be dismissed without prejudice, and alternatively denied on the merits.

         I.

         On October 20, 2003, after petitioner signed a Waiver of Indictment (Cr. Doc. #2), the United States Attorney filed an Information (Cr. Doc. #1) charging petitioner with possession with intent to distribute 5 grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 18 U.S.C. § 2. On October 27, 2003, pursuant to a Plea Agreement (Cr. Doc. #6), petitioner pled guilty to Count One of the Information, which carried a mandatory minimum of 5 years to a maximum of 40 years imprisonment. The plea was accepted and petitioner was adjudicated guilty. (Cr. Doc. #13.)

         Petitioner was sentenced on March 1, 2004. The November 1, 2002 version of the United States Sentencing Guidelines (USSG) were applied to alleviate any ex post facto concerns. (Cr. Doc. #38, p. 8, ¶ 3.) Petitioner's Base Offense Level was a 32 because the offense involved at least 50 grams but less than 150 grams of cocaine base, otherwise known as crack cocaine. (Id., p. 12, ¶ 25.) Petitioner's Total Offense Level, after an adjustment for acceptance of responsibility, was a 29. (Id., p. 12, ¶ 33.) Petitioner was found to be a career offender, as defined in United States Sentencing Guidelines Manual (USSG) § 4B1.1 (2002), because he was 26 years old when he committed the offense in this case, the offense of conviction was a felony controlled substance offense, and petitioner then had at least two prior felony convictions for either a crime of violence or a controlled substance offense. The prior Florida felonies were: (1) the sale or delivery of a controlled substance within 1000 feet of a school in Lee County, Florida; (2) resisting an officer with violence in Lee County, Florida; and (3) aggravated fleeing or attempting to elude causing injury, or an aggravated assault on an officer in Charlotte County, Florida (counted as a single offense for career offender purposes). (Id., p. 13, ¶ 34.)

         After the career offender enhancement was applied, petitioner's Enhanced Offense Level was a 31. (Id., p. 13, ¶37.) As a career offender, petitioner was a Criminal History Category VI (id., p. 21, ¶¶ 52, 53), and his resulting Sentencing Guideline range was 188 to 235 months of imprisonment (id. p. 27, ¶ 78). Petitioner asserts that had he not been a career offender, his Sentencing Guidelines range would have been 151 to 188 months imprisonment. (Cv. Doc. #15, p. 2.) Petitioner was sentenced to a term of 188 months of imprisonment, followed by a term of supervised release and the permanent denial of federal benefits. (Cr. Docs. ## 14, 15.) A sentence within the Sentencing Guidelines was mandatory because the sentence was imposed prior to United States v. Booker, 543 U.S. 220 (2005).

         Petitioner appealed his sentence, arguing that he was unaware that he would be sentenced as a career offender, that his counsel informed him that he would not be sentenced as a career offender, and that the Court did not advise him that he was subject to the enhancement as a career offender. (Cr. Doc. #32, p. 3.) Finding the issue had not been raised before the district court and there was no plain error, the Eleventh Circuit affirmed the sentence on December 1, 2004. United States v. Churchwell, 125 Fed.Appx. 981 (11th Cir. 2004) (Table). Petitioner did not seek a writ of certiorari.

         II.

         On June 27, 2016, petitioner, through appointed counsel, filed his habeas petition under Section 2255 raising one issue:

Mr. Churchwell was sentenced in 2004 pursuant to the then-mandatory sentencing guidelines as a career offender based, in part, on the career offender crime-of-violence residual clause. The career offender residual clause and the ACCA residual clause are identically worded. Since the ACCA residual clause has been deemed unconstitutionally vague, it follows that the career offender residual clause is also unconstitutionally vague. The application of the career-offender residual clause under the mandatory-guideline regime required the district court to impose a higher sentence than it otherwise would have. Thus, Mr. Churchwell was denied due process[.]

(Cv. Doc. #1, p. 4.) Petitioner relies upon Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. Johnson was made retroactive to cases on collateral review by Welch v. United States, 136 S.Ct. 1257 (2016).

         A. Timeliness of Motion

         The United States argues that the §2255 motion, filed nearly twelve years after petitioner's conviction became final, is untimely. (Cv. Doc. #14, p. 3.) Petitioner responds that his motion is timely under 28 U.S.C. § 2255(f)(3), which provides that the one year statute of limitation period “shall run from the latest of-- . . . (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. . . .” 28 U.S.C. § 2255(f)(3). Petitioner asserts that his motion is timely because it was filed within one year of Johnson. (Cv. Doc. #15, pp. 3-9.)

         While the motion was filed within one year of Johnson, it fails to satisfy the requirements of § 2255(f)(3). The newly recognized right created by Johnson was the unconstitutionality of the residual clause of the ACCA. Nothing in petitioner's case relates to the residual clause of the ACCA. The right petitioner is asserting is different. Petitioner asserts that the residual clause in the career offender provision of the then-mandatory Sentencing Guidelines is unconstitutional. No Supreme Court case has yet recognized such a right, nor made it retroactive. The only relevant case is Beckles v. United States, 137 S.Ct. 886 (2017), which held that the advisory Sentencing Guidelines are not subject to a Johnson constitutional challenge for vagueness. While the parties dispute the impact of Beckles, it is clearly not a decision which recognizes the right asserted by petitioner in his motion, as petitioner concedes (“Beckles did not address the issue of whether Johnson applied to those defendants, such as Mr. Churchwell, who were sentenced under the mandatory sentencing guidelines” (Cv. Doc. #15, p. 1); “Beckles left open the issue of whether Johnson retroactively applies to the mandatory sentencing guidelines” (id. at p. 4)). Accordingly, the motion is untimely and must be dismissed without prejudice.

         B. Cognizability of Claim

         The United States argues that petitioner's claim is not cognizable under § 2255. (Cv. Doc. #14, pp. 7-10.) The Court agrees.

         Although a prisoner “may challenge a sentencing error as a ‘fundamental defect' on collateral review when he can prove that he is either actually innocent of his crime or that a prior conviction used to enhance his sentence has been vacated, ” a challenge to petitioner's status as a career offender under the Sentencing Guidelines is not cognizable in a § 2255 motion unless the sentence exceeds the statutory maximum. Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc) (explaining that “erroneously designating a defendant as a career offender” is not cognizable in a § 2255 motion because it is “not a fundamental defect that inherently results in a complete miscarriage of justice”). See also Bell v. United States, 688 F. App'x 593, 594 (11th Cir. 2017). The sentence in this case did not exceed the statutory maximum, petitioner does not assert he is actually innocent of the offense of conviction, and none of petitioner's prior convictions at issue have been vacated. Therefore, petitioner's claim is not cognizable under § 2255, and the motion must be dismissed without prejudice on this ground.

         C. ...


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