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Johnson v. United States

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

September 19, 2019

THOMAS MICHAEL JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES D. WHITTEMORE, United States District Judge.

         BEFORE 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.

         BACKGROUND

         Petitioner 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)[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)

         Judgment 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 Following Johnson, my prior conviction in the state of Florida for burglary is no longer valid.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).[2]

         In his 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 Descamps.” (Id.).

         DISCUSSION

         The 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.

         I. Timeliness

         The 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 final; [or]
. . .
(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,[3] 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 . . . .”).

         Johnson 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 ...


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