Santiesteban v. United States
| Decision Date | 06 July 2016 |
| Docket Number | CASE NO.: 16-22211-Civ-MOORE,CASE NO.: 12-20452-Cr-MOORE |
| Parties | DARVIS SANTIESTEBAN, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
(CV DE# 7)
This matter is before the Court on the movant's pro se motion to vacate filed pursuant to 28 U.S.C. §2255, attacking the constitutionality of his enhanced sentences as a career offender entered following a guilty plea in case no. 12-20452-Cr-Moore. He seeks relief in light of the Supreme Court's ruling in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015).
This 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.
No order to show cause has been issued because, on the face of the motion, it is evident the movant is entitled to no relief. See Rule 4(b),1 Rules Governing Section 2255 Proceedings.
Before the Court for review are the motion to vacate (Cv-DE#1) with supporting memorandum (Cv-DE#4), the government's motion to stay (Cv DE# 7), the Presentence Investigation Report ("PSI"), Statement of Reasons ("SOR"), and all pertinent portions of the underlying criminal file, including the plea agreement (Cr-DE#519).
Construing the §2255 motion liberally as afforded pro se litigants pursuant to Haines v. Kerner, 404 U.S. 519 (1972), the movant raises as a sole ground for relief that he is entitled to resentencing based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) ("Samuel Johnson"). (Cv-DE#s1,4). He suggests that the residual clause of the Armed Career Criminal Act that was deemed void for vagueness in Samuel Johnson is identical to the definition of crime of violence under the guidelines. (Id.). Therefore, vacatur of his sentence as a career offender is warranted. (Id.).
The movant was charged with and pleaded guilty to conspiring to possess with the intent to distribute a controlled substance, in violation of 21 U.S.C. §§841(a)(1), 846 (count 1) and conspiring to commit money laundering, in violation of 18 U.S.C. §1956(h) (count 2). (Cr DE# 519:¶1).
After a change of plea proceeding was conducted, but before sentencing, a PSI was prepared prior to sentencing, which revealed in pertinent part, as follows. The base offense level was initially set at a level 28, but because of the movant's status as a career offender, pursuant to U.S.S.G. §4B1.1, the base offense level wasincreased to a level 37. (PSI ¶¶97,103). The career offender enhancement was predicated upon a 1997 Florida conviction for aggravated assault and battery with a deadly weapon and a 2002 Florida conviction sale with intent to distribute cocaine. (PSI ¶¶103,109,115). After a 3-level reduction to the base offense level for acceptance of responsibility, the total adjusted offense level was set at a level 34. (PSI ¶¶104-106). The movant had a total of 9 criminal history points, resulting in a criminal history category VI. (PSI ¶116). Based on his career offender status, his criminal history category remained the same as a career offender's criminal history category is always VI. (PSI ¶183). Based on a total offense level of 34 and a criminal history category of VI, the guideline imprisonment range was 262 to 327 months. (PSI ¶153). Statutorily, as to Count One, the minimum term of imprisonment was 10 years and the maximum term was life, 21 U.S.C. § 841(b)(1)(A)(vii). As to Count Two, the term of imprisonment was 0 to 20 years, 18 U.S.C. § 1956(a). (PSI ¶152).
Next, movant appeared for sentencing on July 29, 2013. (Cr-DE#732). The court sentenced the movant to 262 months' imprisonment as to count 1 and to 240 months' imprisonment as to count 2, all terms to run concurrently. (Cr-DE#738). The Judgment was entered by the Clerk on July 31, 2013. (Cr-DE#738).
He prosecuted a direct appeal and on August 3, 2013. (Cr DE# 745). On September 2, 2014, the Eleventh Circuit affirmed. (Cr DE# 843). The United States Supreme Court denied a petition for writ of certiorari on November 21, 2014. (Cr DE# 858).
Thus, the judgment of conviction became final on November 21, 2014, when the Supreme Court denied the petition for writ ofcertiorari.2
The movant had one year from the time his judgment became final, or no later than November 21, 2015,3 within which to timely file his federal habeas petition, challenging the judgment of conviction entered in case no. 06-20386-Cr-Moreno. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); see also, See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)(citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this Court has suggested that the limitations period should be calculated according to the "anniversary method," under which the limitations period expires on the anniversary of the date it began to run); accord United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003); United States v. Marcello, 212 F.3d 1005, 1008-09 (7th Cir. 2000)).
Section 2255 authorizes a prisoner to move a sentencing court to vacate, set aside, or correct a sentence where "the sentence was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Hill v. United States, 368 U.S. 424, 426-27 (1962). A sentence is otherwise subject to collateral attack if there is an error constituting a "fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979); Hill, 368 U.S. at 428.
As narrated previously, the movant's conviction become final on November 21, 2014, but this federal proceeding was not instituted until June 12, 2016. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); see also, See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)(citing Ferreira v. Sec'y, Dep't of Corr's,494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this Court has suggested that the limitations period should be calculated according to the "anniversary method," under which the limitations period expires on the anniversary of the date it began to run); accord United States v. Hurst, 322 F.3d 1256, 1260-61 (10th Cir. 2003); United States v. Marcello, 212 F.3d 1005, 1008-09 (7th Cir. 2000)).
A one-year period of limitations applies to a motion under Section 2255. The one year period runs from the latest of:
See 28 U.S.C. § 2255(f).
As a general matter, AEDPA's one-year time limit begins running once the defendant exhausts or foregoes his opportunity to pursue direct appeal. Clay v. United States, 537 U.S. 522 (2003).Where a defendant has not filed a notice of appeal, this is fourteen days after the final judgment is entered. Fed. R. App. P. 4(b)(1)(A) ().
More pertinent to this case, the movant suggests the §2255 motion is timely because it was filed within one year from "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...." See 28 U.S.C. §2255(f)(3). Here, he relies on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) to restart the one-year limitations period.
As a starting point, the Court turns to the date upon which Movant's judgment of conviction became final under 28 U.S.C. §2255(f)(1). Here, the movant's conviction became final on November 21, 2014, when the Supreme Court denied his petition for writ of certiorari. Accordingly, in order for this motion to vacate to be timely, it must have been filed at the latest within a year from the time his judgment became final on November 21, 2014. The instant motion to vacate was filed on June 12, 2016, approximately a year and a half after the judgment of conviction became final.
Movant suggests that the one-year period commenced on June 26, 2015, when the Supreme Court issued its Samuel Johnson decision. Therefore, the filing of this federal petition before June 26, 2016 makes this proceeding timely. (Cv-DE#1). Under §2255(f)(3), a §2255 motion can be filed 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 on collateral review." Thus, Petitioner'smotion, filed before the anniversary of the Samuel Johnson decision, would be timely if Samuel Johnson falls within the parameters of §2255(f)(3).
Thus, movant claims that the motion was timely filed, pursuant to §2255(f)(3) because the then recent Supreme Court Johnson decision triggered a new...
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