United States District Court, S.D. Florida
REPORT OF MAGISTRATE JUDGE
MAGISTRATE JUDGE P.A. WHITE JUDGE.
pro se movant, Darryl Richardson, has filed this
motion to vacate, pursuant to 28 U.S.C. §2255,
challenging the constitutionality of his original, 2006
sentence and the 2017 resentencing and resulting judgment for
conspiracy to distribute five kilograms or more of cocaine,
entered following a jury verdict in No. 04-20705-Cr-Seitz.
cause has been referred to the undersigned for consideration
and report pursuant to 28 U.S.C. §636(b)(1)(B), (C);
S.D.Fla. Local Rule 1(f) governing Magistrate Judges; S.D.
Fla. Admin. Order 2003-19; and Rules 8 and 10 Governing
Section 2255 Cases in the United States District Courts.
order to show cause has been issued because, on the face of
the petition, it is evident the petitioner is entitled to no
relief. See Rule 4,  Rules Governing Section 2255
Proceedings. Because the movant is not entitled to
post-conviction relief, summary dismissal is warranted so
that the government has not been ordered to file any response
herein. See Broadwater v. United States, 292 F.3d
1302, 1303-04 (11th Cir. 2002) (a district court has the
power under Rule 4 of the Rules Governing Section 2255 Cases
to summarily dismiss a movant's claim for relief so long
as there is a sufficient basis in the record for an appellate
court to review the district court's decision).
the Court for review are the movant's §2255 motion
(Cv-DE#1) with supporting memorandum (Cv-DE#3), the
Presentence Investigation Report (?PSI”), Statement of
Reasons (?SOR”), along with all pertinent portions of
the underlying criminal file, as well as, the movant's
relevant, prior §2255 proceeding, assigned case no.
court, recognizing that movant is pro se, has
afforded him liberal construction, in accordance with the
Supreme Court's decision in Haines v. Kerner,
404 U.S. 419 (1972). As can best be discerned, the movant
raises the following 3 grounds for relief, as follow:
1. He was unlawfully assessed a criminal history point for a
prior state court conviction that had been vacated.
2. He was denied effective assistance of counsel at the 2017
resentencing hearing, where his lawyer failed to object to
the possession of a weapon enhancement as contained in the
3. He was denied effective assistance of counsel at the 2017
resentencing hearing, where his lawyer failed to ensure that
the movant receive all prior custody credit towards the
current resentencing judgment. (Cv-DE#1:7).
the movant's convictions involved a conspiracy commencing
on or about 1990 and continuing to on or about 2001, in
Miami-Dade County, Florida. United States v.
Richardson, 532 F.3d 1279 (11 Cir. 2008); (Cr-DE#245).
Specifically, the movant was charged by Indictment with a
sole count of conspiracy to distribute at least five
kilograms or more of cocaine, in violation of 21 U.S.C.
§841 and §846. (Cr-DE#3). The movant was the only
defendant charged in the Indictment. (Id.). The
government tried movant three times, with the first two
trials failing to produce a unanimous verdict, but the third
returning a finding of guilt, following a jury verdict.
See United States v. Richardson, 532 F.3d at 1283.
original PSI assigned movant a total offense level 40 and a
criminal history category III, based on four criminal history
points, assessed as follows: (1) one point for a 1993
judgment; (2) one point for a 1995 Fulton County State
conviction and sentence for theft; and, (3) two points for
committing the federal offense while on probation from the
1995 conviction. (See 05cv23827:Cv-DE#5-Order
Granting Motion to Vacate). Movant filed objections to the
PSI, claiming there was insufficient evidence to identify him
as the defendant in those prior convictions, but later
withdrew the objections after the probation officer provided
fingerprint verification. (Id.:2; Cr-DE#181).
Thereafter, the movant was originally sentenced to a term of
360 months imprisonment, followed by 5 years supervised
prosecuted a direct appeal, raising multiple grounds for
relief, two of which attacked the conviction and one of which
challenged the sentence imposed claiming the court considered
certain of the movant's illegal acts that would have been
time-barred under the movant's multiple conspiracies
theory. See United States v. Richardson, 532 F.3d at
1282. Movant, however, did not challenge the computation of
his criminal history category, nor any of the criminal
history points assessed in the PSI. On July 3, 2008, the
Eleventh Circuit Court of Appeals per curiam
affirmed the conviction and sentence in a published opinion.
United States v. Richardson, 532 F.3d 1279 (11 Cir.
2008); (Cr-DE#245). Certiorari review was denied on January
12, 2009. Richardson v. United States, 555 U.S.
1120, 129 S.Ct. 950, 173 L.Ed.2d 146 (2009); (Cr-DE#246).
the movant's original judgment of conviction became final
on January 12, 2009, when certiorari review was denied by the
U.S. Supreme Court. The movant had one year from the time his
judgment became final, or no later than January 10, 2009,
within which to timely file this federal
habeas petition. See Insignares v. Fla. Dep't of
Corr's,  755 F.3d 1273, 1280 (11th Cir.
2014)(citing Ferreira v. Sec'y, Dep't of
Corr's, 494 F.3d 1286, 1293 (11th Cir. 2007),
cert. den'd, 555 U.S. 1149, 129 S.Ct. 1033, 173
L.Ed.2d 315 (2009))(commencing the one year period from the
date of resentencing, where state prisoner was resentenced as
a result of a successful Fla.R.Cr.P. 3.850 motion),
applying Burton v. Stewart, 549 U.S. 147, 127 S.Ct.
793, 166 L.Ed.2d 628 (2007)(other citations omitted).
Applying the anniversary method to this case means
movant's collateral attack to the original judgment of
conviction and resultant sentence expired on January 10,
expiration of the federal limitations period, the movant
returned to this court, filing his first motion to vacate,
pursuant to 28 U.S.C. §2255, assigned No.
09-22349-Civ-Seitz, in which he claimed that a 1995 state
court conviction should not have been included in the PSI
because it was ?uncounseled.” A Report recommending
that the motion be denied on the basis that the claim raised
therein was procedurally barred from review because it could
have been, but was not raised on direct appeal, was adopted
by Order entered in September 2012. That denial was
subsequently affirmed by the Eleventh Circuit Court of
Appeals in April 2014. See Richardson v. United
States, 556 Fed.Appx. 851, 853 (11th Cir. 2014).
Undeterred, movant filed two more §2255 motions with
this court, assigned Nos. 14-20063-Civ-Moreno and
interim, during his pursuit of post-conviction attacks in the
federal courts, petitioner returned to the state court in
Fulton County filing multiple pro se petitions,
assigned Nos. HC00614, HC692, requesting that his 1995
conviction in No. 95Cr170351, be vacated on the basis that it
was uncounseled. His filings were all returned unprocessed or
denied for lack of process (Cv-DE#3:12-Amended Order Vacating
Sentence). Finally in October 2014, petitioner filed a
counseled third petition, attacking the Fulton County
conviction entered in No. 95cr170351, renewing the argument
that the conviction was entered in violation of his Sixth
Amendment right to be represented by counsel. (Id.).
By written order entered on April 1, 2015, the state trial
court in that proceeding vacated the sentence, but affirmed
the conviction, relying on United States v.
Acuna-Reyes, 677 F.3d 1282 (11 Cir. 2012).
October 14, 2015, the movant returned to this court, filing
another §2255 motion, assigned No. 15-23827-Civ-Seitz,
requesting that his federal sentence be vacated in light of
the vacatur of his 1995 Fulton County conviction which was
used to determine his applicable guideline range. A Report
was entered in that proceeding recommending that the case be
dismissed as successive and time-barred.
(15cv23827:Cv-DE#14). A hearing was held on November 8, 2016,
to discuss the objections. (15cv23827:Cv-DE#26). The district
court declined to adopt the Report, finding in pertinent part
that vacatur of a prior conviction after a first 2255
petition is decided will not result in dismissal of the
second 2255 petition as successive, citing Stewart v.
United States, 646 F.3d 856, 863 (11 Cir. 2011) and
Boyd v. United States, 754 F.3d 1298, 1301-02 (11
Cir. 2014). The district court also found that the movant had
acted diligently in filing the second §2255 motion after
successfully challenging his 1995 state court judgment,
citing Goldman v. Winn, 565 F.Supp.2d 200, 220-21
(D. Mass. 2008) and cf., Johnson v. United
States, 544 U.S. 295, 311 (2005).
(15cv23827:Cv-DE#36:7). The district court granted the
§2255 motion, vacated his sentence, and directed the
probation officer to prepare an amended PSI to reflect the
vacated 1995 state conviction. (Id.:9).
the foregoing proceedings were ongoing, movant also filed a
criminal motion to reduce his sentence, pursuant to 18 U.S.C.
§3582, based on Amendment 782 to the U.S. Sentencing
Guidelines, which retroactively amended the U.S.S.G. Drug
Quantity Table used to calculate the movant's guideline
range. (Cr-DE#253). Under the Amendment, a base offense level
36 applies to offenses, like the movant's, which involved
between 150 and 450 kilograms of cocaine. (Cr-DE#260). By
Order entered on November 30, 2015, the movant's motion
was granted, and movant's total term of imprisonment was
reduced from 360 months to 292 months imprisonment.
the resentencing, in light of the vacatur of the conviction,
on June 13, 2017, the movant appeared for a resentencing
hearing. (Cr-DE#s279-280). On June 20, 2017, an Amended
Judgment was entered further reducing movant's sentence
to a total term of 232 months imprisonment, to be followed by
5 years supervised release. (Cr-DE#280). It was also that the
movant ?shall receive credit for time served as applicable by
statute.” (Id.:2) (emphasis added). No. appeal
therefrom appears to have been prosecuted. At the latest, the
Amended Judgment, following resentencing, became final on
Wednesday, July 5, 2017, after the 14-day period for filing a
timely notice of appeal expired.
the movant has one year from the time his resentencing
judgment became final, or no later than July 5, 2018,
within which to timely file this federal habeas petition.
See Insignares, 755 F.3d at 1280 (citing
Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d
at 1293 applying Burton v. Stewart, 549 U.S. 147).
still represented by counsel, movant filed a motion for
clarification, explaining that he was in a Residential Drug
Abuse Program (?RDAP”), but because the Bureau of
Prison (?BOP”) classified him as a ?violent offender,
” it was denying him the benefit of a one year
reduction in his sentence for successful completion of the
program. (Cr-DE#281). By written order entered on January 31,
2018, the court found it was ?not authorized to review a BOP
offender classification.” (Cr-DE#287). In so ruling,
the Court found, in pertinent part, as follows:
...The Court imposed a two level enhancement pursuant to
Section 2D1.1, commentary (11)(A) which provides that the
enhancement for the weapon possession reflects the increased
danger of violence when drug traffickers possess weapons and
the enhancement should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected
to the offense. The PSI provides that the weapon belonged to
another drug dealer and that Defendant took the weapon and
used it. Thus, the enhancement was correctly imposed.
Notwithstanding the imposition of the enhancement, if the
BOP, in its sole discretion, determines that Defendant's
conduct while in custody and in the program merits the
granting of the one year ...