Horton v. United States of America

Filing 2

MEMORANDUM OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255. Signed by Judge Abdul K Kallon on 8/11/2017. (JLC)

FILED
2017 Aug-11 PM 01:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
JAMES STEVEN HORTON,
Petitioner,

v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action Number
1:16-cv-08067-AKK

MEMORANDUM OPINION AND ORDER
James Steven Horton, a federal prisoner, seeks to have his sentence vacated,
set aside, or corrected pursuant to 28 U.S.C. § 2255 in light of the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015). Doc. 1. For the
reasons explained below, Horton’s petition is DENIED.
I.

STANDARD OF REVIEW

Following conviction and sentencing, 28 U.S.C. § 2255 allows a federal
prisoner to file a motion in the sentencing court “to vacate, set aside or correct the
sentence” on the basis “that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such a sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. §
2255(a). To obtain relief under § 2255, a petitioner must: (1) file a non-successive

petition or obtain an order from the Eleventh Circuit authorizing a district court to
consider a successive § 2255 motion, 28 U.S.C. § 2255(h), § 2255 Rule 9; (2) file
the motion in the court where the conviction or sentence was received, see Partee
v. Attorney Gen. of Ga., 451 F. App’x 856 (11th Cir. 2012); (3) file the petition
within the one-year statute of limitations, 28 U.S.C. § 2255(f); (4) be “in custody”
at the time of filing the petition, Spencer v. Kemna, 523 U.S. 1, 7 (1998); (5) state a
viable claim for relief under the heightened pleading standards of § 2255 Rule
2(b), see also McFarland v. Scott, 512 U.S. 849, 856 (1994); and (6) swear or
verify the petition pursuant to 28 U.S.C. § 1746. Finally, “[i]n deciding whether to
grant an evidentiary hearing, a federal court must consider whether such a hearing
could enable an applicant to prove the petition’s factual allegations, which, if true,
would entitle the applicant to federal habeas relief.” Schriro v. Landrigan, 550
U.S. 465, 474 (2007). However, “if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is not required to
hold an evidentiary hearing.” Id.
II.

PROCEDURAL HISTORY

After Horton pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count I), see doc. 10 in case no.
1:11-cr-00446-AKK-JHE, the undersigned sentenced Horton to a term of
imprisonment of sixty-eight months and twenty-one days, see doc. 16 in case no.
2

1:11-cr-00446-AKK-JHE. Horton did not file a direct appeal. See doc. 1 at 2. As
a result, his conviction became final on May 23, 2012.1 Horton subsequently filed
this § 2255 motion on June 10, 2016. Doc. 1 at 12.
III.

ANALYSIS

Horton asks the court to vacate his conviction and sentence in light of
Johnson v. United States, which declared void for vagueness the portion of the
Armed Career Criminal Act (“ACCA”) that defined “violent felony” to include
offenses that “involve[] conduct that presents a serious potential risk of physical
injury to another” comparable to “burglary, arson, or extortion” or an offense that
“involves the use of explosives.” See Johnson, 135 S. Ct. at 2557–60. As the basis
for his motion, Horton states that his “sentencing guidelines were ‘enhanced’
because of a 3rd degree burglary on [his] record,” and that “[t]hey said it was
considered a ‘violent crime,’ so [he] got a significant amount more time.” Doc. 1
at 4. Indeed, the Presentence Investigation Report reflects a base offense level of
20 pursuant to U.S.S.G. §§ 2K2.1(a)(4)(A) and 4B1.2(a), because Horton’s instant
offense occurred subsequent to Horton sustaining one felony conviction of either a
1

When a defendant does not appeal the original judgment of conviction, the judgment
becomes final when the time for filing a direct appeal expires. Mederos v. United States, 218
F.3d 1252, 1253 (11th Cir. 2000). The Federal Rules of Appellate Procedure provide that, in a
criminal case, “a defendant’s notice of appeal must be filed in the district court within 14 days
after the later of: (i) the entry of either the judgment or the order being appealed; or (ii) the filing
of the government’s notice of appeal.” Fed. R. App. P. 4(b)(1)(A). In Horton’s case, the
fourteenth day from May 9, 2012 was May 23, 2012.

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crime of violence or a controlled substance offense. See Presentence Investigation
Report at 7.

Here, Horton had a prior “crime of violence” conviction for

“Burglary, 3rd Degree.” See id. Therefore, it appears that Horton is arguing for
extension of Johnson to his sentence, because U.S.S.G. § 2K2.1(a) incorporates the
Guidelines definition of “crime of violence” found in § 4B1.2(a) that mirrors the
language of the invalidated ACCA residual clause.
Unfortunately for Horton, the Supreme Court has held that “[b]ecause the
advisory Sentencing Guidelines are not subject to a due process vagueness
challenge, § 4B1.2(a)’s residual clause is not void for vagueness.” See Beckles v.
United States, 137 S. Ct. 886, 895 (2017). Moreover, Horton’s prior burglary
qualified as a crime of violence under the enumerated clause of the Sentencing
Guidelines’ “crime of violence” definition rather than the residual clause. See
United States v. Archer, 531 F.3d 1347, 1350 (11th Cir. 2008) (“burglary of a
dwelling” is one of the crimes enumerated in the Sentencing Guidelines).
Therefore, because Horton filed this motion well after the one year period his
conviction became final,2 see 28 U.S.C. § 2255(f)(1), and Johnson does not extend
to enhancements under the Sentencing Guidelines, see Beckles, 137 S. Ct. at 895,
Horton’s motion is untimely and also fails on the merits.

2

Specifically, the conviction became final on May 23, 2012, and Horton did not file this
motion until June 10, 2016.
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IV.

CONCLUSION AND ORDER

In light of the foregoing, the court finds that Horton’s arguments are either
procedurally barred or fail to establish a sufficient basis to vacate his sentence
under 28 U.S.C. § 2255. Accordingly, his § 2255 petition is DENIED. The clerk
is directed to close this file, and to terminate doc. 18 in case no. 1:11-cr-00446AKK-JHE-1.
DONE the 11th day of August, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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