Pritchett v. United States of America
Filing
16
MEMORANDUM OPINION that the 2255 petition is due to be denied and an appropriate final judgment will be entered contemporaneously herewith. Signed by Judge C Lynwood Smith, Jr on 11/26/2018. (AHI)
FILED
2018 Nov-26 PM 04:14
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES EUGENE PRITCHETT,
Movant/Defendant,
vs.
UNITED STATES OF AMERICA,
Respondent.
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)
)
) Case Numbers:
) 2:16-cv-8113-CLS
) 2:05-cr-0135-CLS-JHE
)
)
)
)
MEMORANDUM OPINION
This action is before the court on the motion to vacate, set aside, or correct
sentence, filed pursuant to 28 U.S.C. § 2255 by Charles Eugene Pritchett.1 In the
underlying criminal case, Pritchett pleaded guilty to one count of conspiracy to
commit robbery of a controlled substance, in violation of 18 U.S.C. § 2118(d) (Count
One); one count of robbery of a controlled substance, in violation of 18 U.S.C. §
2118(a) and (c)(1) (Count Two); one count of carrying or using a firearm in relation
to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Count Three); and, one
count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1) (Count Four). He was sentenced on October 3, 2005, to imprisonment for
1
See doc. no. 1 in case no. 2:16-cv-8113-CLS.
a term of 125 months as to Counts One, Two, and Four, separately and concurrently,
and 240 months as to Count Three, to be served consecutively to the sentence
imposed for Counts One, Two, and Four. The total sentence was 365 months.2
A § 2255 motion must be filed within one year of the latest of the following
occurrences:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a
motion by such governmental action;
(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; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f ).
Pritchett’s conviction and sentence became final no later than July 27, 2006,
ninety days after the Eleventh Circuit affirmed the conviction on April 27, 2006.3 See
Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002) (“[E]ven when a
2
See doc. no. 50 in case no. 2:05-cr-0135-CLS-JHE (Judgment in a Criminal Case (For
Offense(s) Committed On or After November 1, 1987)), at 1-2.
3
See doc. no. 87 in case no. 2:05-cr-0135-CLS-JHE (Eleventh Circuit Mandate).
2
prisoner does not petition for certiorari, his conviction does not become ‘final’ for
purposes of § 2255(1) until the expiration of the 90-day period for seeking
certiorari.”) (alteration supplied). That was more than ten years before Pritchett filed
his § 2255 motion on June 27, 2016. Even so, Pritchett argues that his motion was
timely because it was filed within a year of the Supreme Court’s decision in Johnson
v. United States, – U.S. – , 135 S. Ct. 2551 (2015), which, he says, newly recognized
the right he asserts in his motion.
It is well-established that the Johnson decision announced a new rule that is
retroactive to cases on collateral review, thereby allowing potential § 2255 movants
one year from the date of that decision to assert their arguments. See, e.g., Beeman
v. United States, 871 F.3d 1215, 1219 (11th Cir. 2017). Unfortunately for Pritchett,
however, the claim he asserts is not of the same type that was newly recognized in the
Johnson decision.
Johnson invalidated, as unconstitutionally vague, the so-called “residual
clause” of 18 U.S.C. § 924(e)(2)(B)(ii), which provides sentencing enhancements for
persons who are convicted of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g), and who also have three prior convictions for “violent felonies.”
Johnson, 135 S. Ct. at 2563. That holding does not help Pritchett, because Prichett’s
§ 2255 motion does not challenge the sentence he received for his 18 U.S.C. § 922(g)
3
conviction (Count Four). Instead, Pritchett argues that his other federal convictions
(for robbery of a controlled substance and conspiracy to commit robbery of a
controlled substance) are not “crimes of violence” under 18 U.S.C. § 924(c)(1), which
allows for an enhanced sentence when the offender uses a firearm while committing
a “crime of violence.” That is not a claim that was newly recognized by the Johnson
decision. See Ovalles v. United States, 905 F.3d 1231, 1252-53 (11th Cir. 2018)
(holding that § 924(c)(3)(B) was not unconstitutionally vague under either Johnson
or the Supreme Court’s subsequent decision in Sessions v. Dimaya, – U.S. –, 138 S.
Ct. 1204, 1214 (2018)).4 Therefore, regardless of the merits of Pritchett’s assertions,
his motion cannot succeed because it is untimely.
In accordance with the foregoing, Pritchett’s § 2255 motion is due to be denied.
An appropriate final judgment will be entered contemporaneously herewith.
DONE this 26th day of November, 2018.
______________________________
United States District Judge
4
Pritchett as much as acknowledges that he is not presenting a Johnson claim. See doc. no.
15 in case no. 2:16-cv-8113-CLS (Petitioner’s Final Response to Government’s Rebuttal Motion),
at 1 (conceding “that Ovalles, as decided by the 11th Circuit sitting en banc, upholds the ‘risk of
force clause’ of § 924(c)(3)(B) and effectively forecloses any ‘void for vagueness’ challenges to said
statute.”).
4
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