Wright v. United States of America
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 11/8/2018. (AFS)
2018 Nov-08 AM 09:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED STATES OF AMERICA,
Civil Action Number
Dewayne Wright, a federal prisoner, seeks to have his sentence vacated, set
aside, or corrected pursuant to 28 U.S.C. § 2255, based on various Supreme Court
cases, statutes, and Amendment 709 to the Sentencing Guidelines. See doc. 1-1 at
3–4. Wright also seeks nunc pro tunc relief for time he previously served in State
custody. See id. at 11. For the reasons explained below, Wright’s petition is due
to be denied. 1
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
Wright’s motion to appoint counsel, doc. 2, is also due to be denied, as a “plaintiff in a
civil case has no constitutional right to counsel,” Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir.
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.
After Wright pleaded guilty to one count of mail theft in violation of 18
U.S.C. § 1708 (Count I) and two counts of check forgery in violation of 18 U.S.C.
§ 495 (Counts II and III), Judge U.W. Clemon of this court sentenced Wright in
April 1981 to a term of imprisonment of five years as to Count I, followed by two
consecutive terms of ten years each as to Counts II and III. See doc. 6-2 at 1.
Wright did not appeal his sentence. Doc. 1 at 2.
Subsequently, in September 1981, a judge of the Circuit Court of Jefferson
County, Alabama sentenced Wright to fifty-five years imprisonment on state
charges of first degree robbery and first degree theft of property. Doc. 1-1 at 18.
Wright was paroled from the Alabama Department of Corrections in September
2010. Id. Following his release, federal authorities arrested Wright, and Wright
began serving his federal sentence in January 2012. Id. at 5. Wright subsequently
filed this § 2255 motion on June 22, 2016. Doc. 1 at 12.
A. Wright’s Request that the Court Vacate His Sentence Pursuant to
Various Legal Authorities
Wright seeks relief based on Johnson v. United States, 135 S. Ct. 2551
(2015), United States v. Welch, 136 S. Ct. 1257 (2016), the Armed Career Criminal
Act (“ACCA”), the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), the Comprehensive Crime Control Act of 1984 (“CCCA”), the
Sentencing Reform Act of 1984 (“SRA”), and Amendment 709 to the United
States Sentencing Guidelines. See doc. 1-1 at 2–4, 10. The court addresses
Wright’s arguments below.2
1. Johnson, Welch, and the ACCA
As an initial matter, Wright’s motion is untimely, because Wright filed it
after the one year period his conviction became final. See 28 U.S.C. § 2255(f)(1).
Specifically, Wright’s conviction became final in April 1981, and Wright did not
file this motion until June 22, 2016. The court is not persuaded by Wright’s
contention that his motion is timely due to Johnson, which declared void for
vagueness the portion of the 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,” 135 S. Ct. at 2557, 2563, and Welch, which held
that Johnson applies retroactively on collateral review, 136 S. Ct. at 1268. Doc. 1
at 11. While Wright is correct that, where a movant seeks to benefit from a new
Supreme Court decision, the movant has one year from the date of that decision to
The court notes at the outset that Wright has procedurally defaulted on his claims for
relief by not raising any of these arguments in a direct appeal. See Lynn v. United States, 365
F.3d 1225, 1234 (11th Cir. 2004) (defendant defaults in a collateral proceeding when he could
have raised an issue on direct appeal but failed to do so); McCoy v. United States, 266 F.3d 1245,
1258–59 (11th Cir. 2001) (failure to raise claim makes the claim procedurally defaulted, even if
it was explicitly foreclosed by existing circuit precedent at the time of defendant’s direct appeal).
file his motion, see Dodd v. United States, 545 U.S. 353, 360 (2005), Wright’s
motion does not assert a cognizable Johnson claim. According to Wright,
[t]his court sentenced [him] to imprisonment after finding that he had
at least one prior felony conviction for a “crime of violence” as
defined by the residual clause of the U.S.S.G. Section 4B1.2, which
triggered applications [sic] of the Sentencing enhancements in
U.S.S.G. Section 4B1.1. This Guideline residual clause is materially
indistinguishable from the residual clause found in the Armed Career
Criminal Act . . . .
Doc. 1-1 at 5–6. The Eleventh Circuit has held that “Johnson does not apply to
sentences that were based on USSG § 4B1.1.” In re Clayton, 829 F.3d 1254, 1256
(11th Cir. 2016). Regardless, as a practical matter, Judge Clemon could not have
sentenced Wright pursuant to the Sentencing Guidelines in 1981, because the
Guidelines were the product of the United States Sentencing Commission, which
was created by the Sentencing Reform Act of 1984. See 28 U.S.C. §§ 991, 994;
United States v. Jordan, 915 F.2d 622, 631 (11th Cir. 1990) (the Sentencing
Reform Act of 1984 “became effective on November 1, 1987”). Accordingly,
these arguments fail.
2. The AEDPA
Wright also contends that his motion is timely due to the AEDPA, because
he filed his motion “within the one (1) year time limitation for submission of such
actions provided for in recent Supreme Court rulings . . . and within the Statute of
Limitations of June 26, 2016 to file and ‘Johnson’ issues and 28 U.S.C. Section
2255.” Doc. 1-1 at 3–4. Prior to the AEDPA, a petitioner could file a § 2255
motion “at any time.” Pruitt v. United States, 274 F.3d 1315, 1317 (11th Cir.
2001). Since the enactment of that statute, a petitioner has “a one-year after
conviction time limitation for bringing habeas corpus claims.” Id. at 1316. This
one-year limitations period runs from the latest of:
(1) the date on which the conviction becomes final; (2) the date on
which any government-imposed impediment to making the motion is
removed; (3) the date on which the right giving rise to the motion was
recognized by the Supreme Court; or (4) the date on which evidence is
newly discovered that gives rise to the motion.
Id. at 1317 (emphasis added). Wright’s reliance on the AEDPA is misplaced,
because, as explained above, the Johnson case does not help him.
Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998) (for prisoners
whose convictions became final before the enactment of the AEDPA, the deadline
for filing was April 23, 1997, one year after the effective date of the AEDPA).
3. The CCCA and SRA
Wright presents no argument as to why this court should vacate his sentence
pursuant to the Comprehensive Crime Control Act or Sentencing Reform Act, but
apparently lists these statutes as mere jurisdictional bases for his motion. Doc. 1-1
at 4.3 The court can only surmise that Wright cites the SRA, which was part of the
Wright does not discuss or otherwise mention these statutes except at doc. 1-1 at 4.
CCCA and created the United States Sentencing Commission, as a segue into his
Amendment 709 argument, which the court discusses below.
4. Amendment 709 to the U.S.S.G.
Wright argues that he is entitled to relief pursuant to Amendment 709
because his state convictions and sentences for robbery and theft of property were
“handed down the same day before the same Judge.” Doc. 1-1 at 10. According to
Wright, “the Jefferson County convictions were imposed on the same day and the
conviction ‘start dates’ was [sic] established as 9/14/81. This Federal Court as a
rule should not ex post enhance those state court proceedings just because the
Federal Court might expect a higher term [of] imprisonment by doing so.” Doc. 11 at 10 (emphasis omitted).
Amendment 709 clarified “how to determine the criminal history category
under U.S.S.G. §§ 4A1.1 and 4A1.2 when multiple convictions are involved.”
United States v. Martinez, 338 F. App’x 846, 847 (11th Cir. 2009). Specifically,
“prior offenses separated by an intervening arrest are counted separately for
purposes of calculating a criminal-history score, and, if there was no intervening
arrest, prior sentences are counted separately ‘unless the sentences (1) were for
offenses that were named in the same charging document, or (2) were imposed on
the same day.’” Id. (emphasis added). To the extent Wright is arguing that Judge
Clemon used Wright’s September 1981 state convictions to enhance his federal
sentence, such an argument fails, as Judge Clemon sentenced Wright for the
federal offenses in April 1981 before Wright was convicted of the state crimes.
Moreover, as discussed above, the Sentencing Guidelines did not exist in 1981.
See Jordan, 915 F.2d at 631.
B. Wright’s Request that This Court Award Him Credit for Time
Wright alternatively requests nunc pro tunc relief under § 2255. The court
cannot afford Wright such relief, for at least three reasons. First, a claim for credit
for time served is properly brought under 28 U.S.C. § 2241. United States v.
Nyhuis, 211 F.3d 1340, 1345 (11th Cir. 2000); see also Perez v. Rathman, No.
1:11-cv-00949-TMP, 2012 U.S. Dist. LEXIS 184053, at *15 (N.D. Ala. Nov. 16,
2012) (“[T]he claim concerning prior time-served is a challenge to the execution of
[the petitioner’s] sentence and is properly brought under § 2241 . . . .”). Second,
“the proper party respondent to a § 2241 habeas corpus petition is the custodian of
the prisoner,” Walther v. Bauknecht, 155 F. App’x 463, 464 (11th Cir. 2005), and
not the United States. Third, “[o]nly a court inside the district where the prisoner
is confined has jurisdiction to grant relief pursuant to a § 2241 petition,” United
States v. Saldana, 273 F. App’x 845, 846 (11th Cir. 2008) (citing Ledesma v.
United States, 445 F.2d 1323, 1324 (5th Cir. 1971)), and Wright is not confined in
the Northern District of Alabama.
In response to the government’s arguments, Wright has asked the court to
“transfer venue to the appropriate court to hear the sentencing issues” or to
“renam[e] the section 2255 [motion] as a section 2241 [motion] and transfer the
renamed motion to the appropriate court and respondents.” Doc. 7 at 1. The court
cannot serve as Wright’s attorney, however, and Wright must file a separate § 2241
motion in the appropriate court on his own. The court notes, however, that Wright
would face an uphill battle in light of the prohibition on successive petitions. See
Davis v. Pugh, 222 F. App’x 925, 927 (11th Cir. 2007) (“[A] petitioner who has
filed a previous § 2255 motion which the court denied may not circumvent the
AEDPA’s successive-motion rule simply by filing a petition under § 2241.”).
In light of the foregoing, the court finds that Wright’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 due to be denied. The
court will issue a separate order consistent with this opinion.
DONE the 8th day of November, 2018.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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