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Gray v. United States

United States District Court, M.D. Florida, Orlando Division

May 2, 2018

PAVIS LEVAR GRAY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          GREGORY A. PRESNELL JUDGE

         This cause is before the Court on a motion to vacate, set aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 filed by Pavis Levar Gray (Doc. 1) and supporting memorandum of law (Doc. 11). The Government filed a response to the ' 2255 motion in compliance with this Court's instructions and with the Rules Governing Section 2255 Proceedings for the United States District Courts. (Doc. 12). Petitioner filed a reply to the response (Doc. 14).

         Petitioner alleges one claim for relief in his § 2255 motion, that he no longer qualifies as an Armed Career Criminal in light of Johnson v. United States, 135 S.Ct. 2551 (2015) (holding the residual clause of the Armed Career Criminal Act's definition of “violent felony” is unconstitutionally vague).[1] For the following reasons, the Court concludes that Petitioner is not entitled to relief.

         I. Procedural History

         Petitioner was charged by indictment with conspiracy to possess with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii) and 846 (Count One), aiding and abetting in the knowing possession within intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (Count Two), possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1) (Count Four), [2] and knowingly possessing with intent to distribute five grams or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (Count Five) (Criminal Case 6:06-cr-165-Orl-31DAB, Doc. 1).[3]Petitioner entered a guilty plea to the counts as charged (Criminal Case, Doc. 54), and the Magistrate Judge entered a report and recommendation, recommending the Court accept the guilty plea (Criminal Case, Doc. 57). The Court accepted the plea and adjudicated Petitioner guilty (Criminal Case, Doc. 61). Petitioner was sentenced under the Armed Career Criminal Act (“ACCA”) to concurrent 188-month terms of imprisonment for each count, to be followed by 48-month terms of supervised release (Criminal Case, Doc. Nos. 69 and 72). Petitioner appealed, and the Eleventh Circuit Court of Appeals affirmed per curiam (Criminal Case, Doc. 86).

         II. Legal Standard

         Section 2255 provides federal prisoners with an avenue for relief under limited circumstances:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence

28 U.S.C. § 2255. If a court finds a claim under Section 2255 to be valid, the court “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. To obtain this relief on collateral review, however, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. See United States v. Frady, 456 U.S. 152, 166 (1982) (rejecting the plain error standard as not sufficiently deferential to a final judgment).

         III. Analysis

         Petitioner alleges that he is entitled to resentencing pursuant to Johnson, 135 S.Ct. at 2551, because he no longer has the requisite predicate convictions under the ACCA (Doc. 11 at 4). Petitioner contends that the only qualifying conviction that he has under the ACCA is a conviction for sale of cocaine. Id. Petitioner asserts that his prior convictions for battery, battery on a detention staff member, fleeing and eluding, and resisting arrest with violence do not qualify as violent felonies. Id. Finally, Petitioner states that his conviction for possession of cocaine with intent to sell was not relied on at sentencing because the parties were under the mistaken belief that the conviction was for possession of cannabis with intent to sell. Id. The Government argues that Petitioner's claim is procedurally defaulted because it could have been raised on direct appeal (Doc. 12 at 3-5). Alternatively, the Government contends that Petitioner is not entitled to relief on the merits of his claims. Id. at 6-17.

         “[A] defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding. This rule generally applies to all claims, including constitutional claims.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004); Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994). However, a defendant can avoid this procedural bar by demonstrating the applicability of one of the two exceptions: (a) cause and prejudice for the failure to raise the claim on direct or (b) “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Mills, 36 F.3d at 1055.

         Petitioner did not raise his claim of error on direct appeal. Petitioner contends that he could not raise this claim on direct appeal because the claim was not reasonably available to him (Doc. 15 at 2-4). Petitioner asserts that this is evident because the Supreme Court overruled well-settled precedent in Johnson and later gave that case retroactive application in Welch. Id.

         The Southern District of Florida has held that “[b]y definition a claim based on [a] new rule cannot be said to have been reasonably available to counsel at the time of the direct appeal.” Fernandez v. United States, No. 13-20230-CR, 2017 WL 3034610, at *5 (S.D. Fla. May 23, 2017), report and recommendation adopted, No. 13-20230-CR, 2017 WL 3037372 (S.D. Fla. July 17, 2017) (citing Reed v. Ross, 468 U.S. 1, 17 (1984)). The Fernandez court reviewed the petitioner's Johnson claim on the merits. Id. Consistent with Fernandez, ...


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