United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE
case is before the Court on Petitioner Dallas Sylvester's
pro se Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Civ. Doc. 1, § 2255
Motion) and supporting memorandum (Civ. Doc. 2,
Memorandum). The United States has moved to dismiss the
§ 2255 Motion as time-barred (Civ. Doc. 6, Motion to
Dismiss). Because Petitioner's § 2255
Motion is untimely, the United States' Motion to Dismiss
is due to be granted.
to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing
Section 2255 Proceedings, the Court has considered the need
for an evidentiary hearing and determines that a hearing is
not necessary to resolve the merits of this action. See
Rosin v. United States, 786 F.3d 873, 877 (11th Cir.
2015) (an evidentiary hearing is not required when the
petitioner asserts allegations that are affirmatively
contradicted by the record or patently frivolous, or if in
assuming that the facts he alleges are true, he still would
not be entitled to any relief).
November 10, 2009, Petitioner pled guilty, pursuant to a
written plea agreement, to one count of distribution of
cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(C). (See Crim. Doc. 26, Plea
Agreement; Crim. Doc. 56, Plea Transcript). The Magistrate
Judge who presided over the change-of-plea colloquy
recommended that the Court accept the guilty plea as
“knowledgeable and voluntary” and
“supported by an independent basis in fact.”
(Crim. Doc. 27, Report and Recommendation Concerning Guilty
Plea). The Court accepted Petitioner's guilty plea and
adjudicated him accordingly. (Crim. Doc. 28, Acceptance of
Presentence Investigation Report (PSR) stated that Petitioner
qualified to be sentenced as a career offender under §
4B1.1 of the United States Sentencing Guidelines. PSR at
¶ 28. The PSR identified three prior convictions
that supported the career offender enhancement, each from the
state of Florida: (1) a 1998 conviction for the sale of
cocaine, (2) a 2002 conviction for felony battery
involving great bodily injury, permanent disability, or
disfigurement, and (3) a 2002 conviction for aggravated
assault with a deadly weapon. Id. at ¶ 28;
see also id. at ¶¶ 42, 50, 52. As a
result, Petitioner's total offense level was 29 and his
Criminal History Category was VI, yielding an advisory
sentencing range of 151 to 188 months in prison. PSR at
¶¶ 32, 63, 95. However, the United States moved for
a three-level reduction under U.S.S.G. § 5K1.1 because
Petitioner had provided substantial assistance. (Crim. Doc.
31, § 5K1.1 Motion). The reduction, if granted, would
have yielded an advisory sentencing range of 120 to 150
months in prison. (Id. at 2). The United States
recommended a sentence at the low end of that range, or 120
sentencing hearing on April 13, 2010, Petitioner did not
object to the career offender enhancement. (Crim. Doc. 57,
Sentencing Transcript at 2-3). After hearing from all sides, the
Court granted the § 5K1.1 Motion and sentenced
Petitioner to a term of 120 months in prison, which
represented the low end of the reduced Guidelines range.
(Id. at 30, 35). Neither party objected to the
sentence. (Id. at 37).
Court entered judgment on April 14, 2010. (Crim. Doc. 35,
Judgment). Consistent with the terms of his plea agreement
(see Crim. Doc. 26 at 10), Petitioner did not appeal
his sentence. As such, Petitioner's conviction and
sentence became final 14 days later, on April 28, 2010, when
time expired to file a notice of appeal. See Adams
v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir.
1999) (when a defendant does not pursue a direct appeal, his
conviction and sentence become final when the time to file a
notice of appeal expires).
signed and filed the § 2255 Motion more than four years
later. (See Civ. Doc. 1 at 13); see Houston v.
Lack, 487 U.S. 266, 276 (1988) (a pro se prisoner's
court filing is deemed filed on the date it is delivered to
prison authorities for mailing). Petitioner alleges that he
“suffered an erroneous classification under 28 U.S.C.
§ 994(h) as a career offender based on non-predicate
offenses.” (Civ. Doc. 1 at 4; see also Civ.
Doc. 2 at 5). Specifically, he argues that his prior
conviction for the sale of cocaine, in violation of §
893.13(1)(a), Fla. Stat., does not qualify as a
“controlled substance offense” as defined under
28 U.S.C. § 994(h) and U.S.S.G. § 4B1.2(b).
Petitioner argues that the sale-of-cocaine conviction is not
a “controlled substance offense” because
“knowledge of the illicit nature of the substance was
not an element of the offense.” (Civ. Doc. 2 at 6). In
support of his argument, Petitioner primarily relies on
Descamps v. United States, 133 S.Ct. 2276
(2013), and Donawa v. Att'y General,
735 F.3d 1275 (11th Cir. 2013).
Timeliness Under 28 U.S.C. § 2255(f)(3)
the issue of timeliness, Petitioner submits that his §
2255 Motion is timely filed under 28 U.S.C. §
2255(f)(3). (See Civ. Docs. 1 at 12; Civ.
Doc. 2 at 1-4). Under § 2255(f)(3), a federal prisoner
may move to vacate his sentence within one year of “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.” 28
U.S.C. § 2255(f)(3) (emphasis added).
relies on the Supreme Court's decision in
Descamps, 133 S.Ct. 2276, which was issued on June
20, 2013, to invoke § 2255(f)(3)'s limitations
period. (See Civ. Doc. 1 at 12; Civ. Doc. 2 at 1-4).
Petitioner argues that Descamps applies on
collateral review because it did not announce a new rule but
merely clarified an old one. (See Civ. Doc. 2 at 4).
response, the United States moves to dismiss the § 2255
Motion as untimely. (See Civ. Doc. 6). The United
States initially argues that § 2255(f)(3) does not apply
to Petitioner because the Supreme Court did not make
Descamps retroactively applicable on collateral
review. (See Civ. Doc. 6 at 3-4). But later in
the same motion, the United States declares that the
“government has made a considered decision not to
challenge Descamps v. United States, 133 S.Ct. 2276
(2013), under the retroactivity doctrine of Teague v.
Lane, 489 U.S. 288 (1989). The affirmative waiver of
this defense removes it from the case. Cf. Wood v.
Milyard, 132 S.Ct. 1826, 1833 n.5, 1835 (2012).”
(Civ. Doc. 6 at 7-8, n.2).
light of footnote 2, the Court deems the United States to
have (correctly) conceded that Descamps applies on
collateral review, notwithstanding its initial argument to
the contrary. Accord Mays v. United States, 817 F.3d
728, 734 (11th Cir. 2016) (holding that Descamps
applies on collateral review because “Descamps
did not announce a new rule-its holding merely clarified
existing precedent.”). “But being retroactively
applicable to cases on collateral review is only part of the
test for restarting the statute of limitations. AEDPA also
requires that the right have been ‘newly recognized by