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Barnett v. United States

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

March 29, 2018

JAMES ALLEN BARNETT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          JOHN E. STEELE, 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. #134) (the Section 2255 Motion), [1] and a Memorandum of Supporting Facts (Cv. Doc. #2), both filed on March 28, 2016. The government filed a Motion to Dismiss the Petitioner's 28 U.S.C. § 2255 (Cv. Doc. #8) on May 27, 2016, seeking dismissal of the Section 2255 motion as untimely and, alternatively, a denial of the motion on the merits. Petitioner filed a Response (Cv. Doc. #9) on June 17, 2016.

         Also before the Court is petitioner's Motion Pursuant to Civil Procedure Rule 15(c)(2)-(d) Supplemental Pleadings Memorandum of Supporting Facts. (Cv. Doc. #10.) Petitioner seeks to supplement his pleading with the more recent Supreme Court decision in Mathis v. United States, 136 S.Ct. 2243 (2016).

         For the reasons set forth below, the Court grants the motion to supplement, grants in part and denies in part the motion to dismiss, and dismisses in part and denies in part the Section 2255 Motion.

         I.

         On July 2, 2008, a federal grand jury in Fort Myers, Florida returned a two-count Indictment (Cr. Doc. #1) against petitioner and a co-defendant.[2] Petitioner was charged in Count One with possession of a firearm after having been convicted of the following felony offenses: (1) battery on a law enforcement officer, in violation of Fla. Stat. § 784.07; (2) burglary of a dwelling, in violation of Fla. Stat. § 810.02(3); (3) robbery, in violation of Fla. Stat. § 812.13; (4) aggravated battery, in violation of Fla. Stat. § 784.045; and (5) sale or delivery of cocaine, in violation of Fla. Stat. § 893.13, all in violation of Title 18, United States Code, Sections 922(g)(1) and 924(e).

         On May 4, 2009, petitioner entered a plea of guilty to Count One of the Indictment. (Cr. Doc. #108.) The plea was accepted, and petitioner was adjudicated guilty. (Cr. Doc. #110.)

         On July 27, 2009, the Court sentenced petitioner to 180 months imprisonment, followed by a term of supervised release, pursuant to the Armed Career Criminal Act (ACCA). Judgment was filed on July 28, 2009. (Cr. Docs. #116, 117.) Petitioner did not file a direct appeal with the Eleventh Circuit, and the conviction became final on August 7, 2009, ten days after entry of the Judgment. See Fed. R. App. P. 4(b)(1).

         No further action was taken until March 28, 2016, when petitioner filed his 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. #134.) In the Section 2255 Motion and subsequent papers petitioner asserts that his prior convictions for burglary, robbery, aggravated battery, and battery on a law enforcement officer no longer qualify as ACCA predicate offenses in light of Johnson v. United States, 135 S.Ct. 2551 (2015), and that his prior drug convictions no longer qualify as a “serious drug offense.” Therefore, petitioner argues, he no longer qualifies for, and is actually innocent of, the ACCA sentence enhancement. Petitioner seeks to have his sentence vacated and to be re-sentenced without the ACCA enhancement.

         Respondent filed a Motion to Dismiss the Section 2255 Motion as untimely, or alternatively, to deny the Section 2255 Motion on the merits. (Cv. Doc. #8.)

         II.

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal prisoners have one year from the latest of the following four triggering events to file a Section 2255 Motion:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...

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