United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, United States District Judge.
THE COURT are Petitioner Johnson’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence (Dkt. 1), his amendment to his § 2255 motion
(Dkt. 9), memorandum in support (Dkt. 10), the United
States’ response (Dkts. 11, 12), Johnson’s reply
(Dkt. 14), and his Supplemental Authority and Argument (Dkt.
16). Upon consideration, Johnson’s § 2255 motion,
as amended, is DENIED.
Johnson was indicted and charged with possession of a firearm
as a felon in violation of 18 U.S.C. §§ 922(g) and
924(e) (Count One) and possession of a stolen firearm in
violation of 18 U.S.C. §§ 922(j) and 924(a)(2)
(Count Two). (cr. Dkt. 1). He pleaded guilty to Count One
pursuant to a plea agreement. (cr. Dkts. 30, 38). He was
sentenced to 180 months as an armed career criminal, followed
by 5 years of supervised release. (cr. Dkts. 49, 52, 61 at 8,
12-13). Based on Johnson’s three prior Florida
convictions for selling cocaine, his conviction for sale of a
controlled substance within 1000 feet of a worship center,
and conviction for burglary, his sentence was enhanced under
18 U.S.C. § 924(e). (cr. Dkt. S-47 ¶ 23). He did
not object to the enhancement, and did not appeal (cr. Dkt.
61 at 8, 13)
was entered on November 18, 2014. (cr. Dkt. 52). More than a
year after his conviction became final, he filed the instant
§ 2255 motion in the wake of Johnson v. United
States, 135 S.Ct. 2551 (2015), in which the Supreme
Court struck as unconstitutional the residual clause in the
definition of “violent felony” in the Armed
Career Criminal Act (ACCA). In his original § 2255
motion, Johnson states:
previously I had three predicate convictions that qualified
me as an armed career offender. Following Johnson,
my prior conviction in the state of Florida for burglary is
no longer valid. Further, my prior Florida State conviction
for sale of cocaine . . . while consisting of three
individual sales - the case was “officially
consolidated”, sentenced on the same day by the same
judge and were scored on the same sentencing guideline score
sheet. Finally, all three sales were to a single officer[.]
[F]or this reason, [the cases count] as only one prior.
(Dkt. 1 at 4).
amended motion, Johnson adds: “That [for] my prior
Florida state convictions for sale of cocaine . . . the state
[statute] is broader [than] the generic [statute] within the
meaning cited in” Descamps v. United States,
570 U.S. 254 (2013) and Mathis v. United States, 136
S.Ct. 2243 (2016). (Dkt. 9 at 2). He also adds a claim of
ineffective assistance of counsel: “Trial counsel was
ineffective for failing to object to the Petitioner’s
(ACCA) enhancement by the district court, under
United States contends that Johnson procedurally defaulted
his claims by failing to object at sentencing to his ACCA
enhancement and failing to appeal. The United States also
contends that his non-Johnson claims are time
barred. Both contentions have merit, but even if
Johnson’s claims are not procedurally defaulted and
timely, he is not entitled to relief on the merits. His four
prior sale of cocaine and controlled substance convictions
are “serious drug offenses” under the ACCA,
notwithstanding that his prior burglary conviction is not
after Johnson. Accordingly, he was properly enhanced
under § 924(e), as he had at least three predicate
convictions under the ACCA, triggering the enhancement.
Antiterrorism and Effective Death Penalty Act
(“AEPDA”) establishes a one-year limitation
period for § 2255 motions. See Pruitt v. United
States, 274 F.3d 1315, 1317 (11th Cir. 2001). This
limitation period runs from the latest of:
(1) the date on which the judgment of conviction becomes
. . .
(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 [. . . .]
28 U.S.C. § 2255(f). Johnson filed his § 2255
motion on June 22, 2016, more than a year after his judgment of
conviction became final in early December 2014. See
Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir.
2011) (“[W]hen a defendant does not appeal his
conviction or sentence, the judgment of conviction becomes
final when the time for seeking that review expires.”);
Fed. R. App. P. 4(b)(1)(A)(i) (“In a criminal case, a
defendant’s notice of appeal must be filed in the
district court within 14 days after the . . . entry of . . .
the judgment or the order being appealed . . . .”).
relies on § 2255(f)(3), observing that the holding in
Johnson was made retroactively applicable to cases
on collateral review in Welch v. United States, 136
S.Ct. 1257 (2016). And the Eleventh Circuit has held that a
Florida burglary conviction is not a qualifying ...