United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL JUDGE
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).
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). For the following reasons, the Court
concludes that Petitioner is not entitled to relief.
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),
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).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.
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
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).
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.
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.
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.
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, ...