Strong v. United States
| Decision Date | 06 July 2016 |
| Docket Number | 05-14040-Cr-MOORE,CASE NO. 16-14212-Civ-MOORE |
| Parties | CHAUNCEY DONNELL STRONG, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
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 sentence entered following a guilty plea in case no. 05-14040-Cr-Moore.
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), the Presentence Investigation Report ("PSI"), Statement of Reasons ("SOR"), and all pertinent portions of the underlying criminal file.
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 no longer qualifies as a career offender under U.S. the Sentencing Guidelines pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (DE#1:1-4). He argues that the residual clause of the Armed Career Criminal Act that was deemed void for vagueness in 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 pled guilty to conspiracy to possess with intent to distribute 50 grams or more of cocaine base (Count 1), in violation of 21 U.S.C. §846 and possession with intent to distribute 5 grams or more of cocaine base (Count 2), in violation of 21 U.S.C. §841(a)(1). (Cr-DE#40). The parties agreed, although not binding on the probation officer or the court, to jointly recommend that the court impose a sentence within the advisory guideline range, and that neither party would recommend an upward or downward departure from the advisory guideline sentence. (DE#40:3). He acknowledged, as part of the plea agreement, that as to Count 1, he was facing a minimum of 10 years and up to a term of life imprisonment. (Cr-DE#40:2). As to Count 2, he acknowledged he was facing a minimum of 5 years and up to 40 years imprisonment. (Id.). After a Rule 11proceeding, the plea was accepted, and he was adjudicated guilty. (DE#90).
Prior to sentencing, a PSI was prepared, which revealed as follows. The Movant's base offense level was initially set at a level 32, based on the fact that the offense of conviction involved at least 50 grams, but less than 150 grams cocaine base. (PSI ¶35). However, his offense level was then increased on the basis that he qualified for an enhanced sentence as a career offender, pursuant to U.S.S.G. §4B1.1(a), in pertinent part because the offense of conviction involved a felony controlled substance offense, and the Movant had at least two prior felony convictions for controlled substance offenses, as set out in case nos. CF97-655A (), CF99-884A (), and CF02-372A (). (PSI ¶41). Three levels were removed for acceptance of responsibility, resulting in a total adjusted offense level 34. (PSI ¶¶42-44). The PSI next determined that movant had a total of 8 criminal history points; however, because he committed the instant offense less than 2 years after he was released from custody, two additional points were added, resulting in a criminal history category VI. (PSI ¶¶52-53). His criminal history remained at a category VI because of his status as a career offender. (PSI ¶53).
Based on a total offense level of 34 and a criminal history of VI, the resulting guideline range was set at 262 months imprisonment at the low end, and 327 months imprisonment at the high end. (PSI ¶89). Statutorily, as to Count 1, Movant faced a minimum of 10 years and up to a maximum of life imprisonment, for violation of 21 U.S.C. §841(b)(1)(A). (PSI ¶88). As to Count 2, he faced a minimum term of imprisonment of 5 years and up to a maximumof 40 years imprisonment for violation of 21 U.S.C. §841(b)(1)(B).
On October 17, 2005, the Movant appeared for sentencing. (Cr-DE#89). After considering the advisory guidelines, and the goals of 18 U.S.C. §3553, he was sentenced to the low end of the guideline range to a term of 262 months imprisonment, followed by 5 years supervised release. (Cr-DE#50). The judgment was entered by the Clerk on October 19, 2005. (Cr-DE#50). No direct appeal was prosecuted. Thus, the judgment became final on November 2, 2005, when the 10-day period for prosecuting a direct appeal expired.2
Thus, the Movant had one year from the time his conviction became final, following entry of the judgment above, or no later than November 2, 2006,3 within which to timely file this federal habeas petition. 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 onthe 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)). Applying the anniversary method to this case means petitioner's limitations period expired on November 2, 2006.
A year and a half after the limitations period had already expired, the Movant returned to this court filing a motion for reduction of sentence pursuant to 18 U.S.C. §3585(c)(2). (Cr-DE#57). The motion was denied. (Cr-DE#62). Movant appealed. (Cr-DE#63). The Eleventh Circuit dismissed the appeal. (Cr-DE#92). Certiorari was denied on October 8, 2014. (Cr-DE#93). Subsequently, Movant filed a second motion for reduction of sentence which was also denied. (Cr-DEs#94,97).
The Movant has now returned to this court, signing and handing the instant §2255 motion to vacate to prison authorities for mailing on June 8, 2016, in accordance with the mailbox rule.4 (Cv-DE#1).
Section 2255 authorizes a prisoner to move a sentencing court to vacate, set aside, or correct a sentence where "the sentence wasimposed 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 in 2005, and the limitations period expired in 2006, but this federal proceeding was not instituted until 2016. Thus, well over one year has expired, thereby making this federal petition untimely filed. 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). More pertinent to this case, a §2255 motion is timely if 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).
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, his conviction became final when the 10-day period for prosecuting an appeal following his judgment expired on November 2, 2005. Accordingly, in order for this motion to vacate to be timely, it must have been filed in this Court on or before November 2, 2006. The instant motion to vacate was not...
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