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United States v. Jackson

United States District Court, N.D. Florida, Panama City Division

March 22, 2018




         This 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 2255 Cases.


         Petitioner 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.

         Before 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.

         Petitioner 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.)

         In 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 relief.

         Petitioner's 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).

         In its 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.

         In the 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.

         Petitioner's 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.

         Petitioner's § 2255 motion, therefore, is both untimely and without merit and should be denied without an evidentiary hearing.


         Rule 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 ...

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