United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
R. JONES, UNITED STATES MAGISTRATE JUDGE
matter is before the court upon Petitioner's amended
“Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a person in Federal
Custody.” (ECF No. 51.) The Government has filed a
response (ECF No. 54) and Petitioner has filed a reply. (ECF
No. 57.) 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 Section
pleaded guilty “straight up” to a three-count
indictment charging him with possession with intent to
distribute 5 grams of cocaine base, cocaine and marijuana,
possession of a firearm in furtherance of a drug trafficking
crime, and possession of a firearm by a previously convicted
felon. (ECF No. 26.) There was no written plea agreement, and
Petitioner did not appeal, so the record does not contain a
transcript of the change of plea proceeding.
Petitioner entered his plea, the Government filed a Notice of
Prior Convictions, identifying three prior felony controlled
substance offenses. (ECF No. 16.) Because of these three
offenses---sale of cocaine, possession of cannabis with
intent to sell, and sale of cocaine within 1000 feet of a
place of worship---Petitioner was classified as a career
offender in the Presentence Investigation Report
(“PSR”). (ECF No. 40, PSR ¶ 24.) His total
offense level on Counts One and Three was 31, and his
criminal history category was VI. (ECF No. 40, PSR
¶¶ 24-26, 39.) The applicable guidelines range,
including the five-year statutory mandatory sentence on Count
Two, was 262 to 327 months. (ECF No. 40, PSR ¶¶ 77,
78.) The court sentenced Petitioner to a total term of 120
months imprisonment. (ECF Nos. 42, 43.) Neither Petitioner
nor the Government appealed.
filed his initial § 2255 motion in June of 2016. (ECF
No. 49.) In his amended motion, he raises a single claim for
relief. He asserts that he no longer qualifies as a career
offender because “a guilty plea for a felony for which
adjudication was withheld does not qualify as a
conviction.” (ECF No. 51 at 4, 14.) He maintains that
the motion was timely filed because it was filed within one
year of the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015), which invalidated
the residual clause of the Armed Career Criminal Act. (ECF
No. 51 at 12.)
support of his position Petitioner cites United States v.
Jenkins, Case No. 13-15874, May 11, 2016. The Eleventh
Circuit issued two opinions in Case No. 13-15874 on May 11,
2016. Both are styled as United States v. Clarke.
See United States v. Clarke, 822 F.3d 1213 (11th
Cir. 2016); United States v. Clarke, 649 Fed.Appx.
837 (11th Cir. 2016). Clarke was Jenkins' co-defendant.
As discussed below, neither opinion affords Petitioner
career offender designation was based on three prior
convictions. The PSR reflects that Petitioner pled nolo
contendere and adjudication was withheld as to the felony
charges of sale of cocaine (PSR ¶ 33) and possession of
cannabis with intent to sell or deliver (PSR ¶ 34).
Petitioner also pled nolo contendere, but was adjudicated
guilty of the offense of sale of cocaine within 1000 feet of
a place of worship (PSR ¶ 36).
reported opinion in Clarke, the Eleventh Circuit
Court found that a defendant's prior Florida guilty plea
for which adjudication was withheld, did not qualify as a
“conviction” under a Florida statute proscribing
the possession of firearms by convicted felons, and therefore
could not provide the basis for a federal conviction pursuant
to 18 U.S.C. § 922(g)(1). Clarke, 822 F.3d at
1214-1215. Petitioner's conviction of sale of cocaine
within 1000 feet of a place of worship is a first-degree
felony under Florida law. See §§
893.03(2)(a)4; 893.13(e)1, Florida Statutes. The Florida
court did not withhold adjudication in that case, and thus it
properly supported a federal conviction for unlawful
possession of a firearm by a convicted felon.
unreported Clarke opinion, the Eleventh Circuit
rejected the defendant's argument that the fact that
adjudication was withheld and he received a suspended
sentence in a prior case meant that the prior case could not
be considered by the federal sentencing court.
Clarke, 649 Fed.Appx. at 849. The court noted its
prior precedent holding that “a prior state court nolo
plea in which adjudication was withheld can be used as a
conviction to make the defendant eligible for career-offender
status under the Sentencing Guidelines.”
Clarke, 649 Fed.Appx. at 849 (citing United
States v. Fernandez, 234 F.3d 1345, 1347 (11th Cir.
2000); see also United States v. Mejias, 47 F.3d
401, 404 (11th Cir. 1995) (noting that a nolo plea with
adjudication withheld supports an enhanced sentence under
§ 841(b)(1)(B)). Thus, the unreported Clarke
opinion supports the Court's determination that
Petitioner qualified as a career offender.
argument that his motion was timely filed relies upon the
argument that the analysis in Johnson applies to
similar language in the career offender provision of the
Sentencing Guidelines. This position is foreclosed by the
Supreme Court's decision in Beckles v. United
States 137 S.Ct. 886 (2017), which was decided after
Petitioner filed the instant motion. Petitioner's
citation to Johnson, which has no bearing on his
case, does not provide the basis for reopening his sentence.
§ 2255 motion, therefore, is both untimely and without
merit and should be denied without an evidentiary hearing.
11(a) of the Rules Governing Section 2255 Proceedings
provides that “[t]he district court must issue or deny
a certificate of appealability when it enters a final order
adverse to the applicant, ” and if a certificate is
issued “the court must state the specific issue or
issues that satisfy the showing required by 28 U.S.C. §
2253(c)(2).” A timely notice of appeal ...