Nall v. United States of America

Filing 6

MEMORANDUM OPINION as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 08/09/18. (SPT )

FILED
2018 Aug-09 AM 10:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
MAYNARD ORLANDO NALL,
Movant/Defendant,
vs.

UNITED STATES OF AMERICA,
Respondent.

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Case Numbers:
7:16-cv-8106-CLS
7:08-cr-161-CLS-TMP

MEMORANDUM OPINION
This action is before the court on the motion to vacate, set aside, or correct
sentence filed by Maynard Orlando Nall pursuant to 28 U.S.C. § 2255.1
Nall was sentenced by this court on June 30, 2009, to imprisonment for a term
of 180 months following his conviction on one count of possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1).2 A violation of that statute
generally is punishable by a maximum sentence of ten years imprisonment. See 18
U.S.C. § 924(a)(2). In Nall’s case, however, his sentence was enhanced under the
Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), which provides, in
pertinent part, that:

1
2

See doc. no. 1 in the present case: i.e., No. 7:16-cv-8106-CLS.

See doc. no. 17 in case no. 7:08-cr-161-CLS-TMP (Judgment in a Criminal Case (For
Offenses Committed On or After November 1, 1987)).

In the case of a person who violates section 922(g) of this title and
has three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug offense, or
both, committed on occasions different from one another, such person
shall be fined under this title and imprisoned not less than fifteen years,
and, notwithstanding any other provision of law, the court shall not
suspend the sentence of, or grant a probationary sentence to, such person
with respect to the conviction under section 922(g).
18 U.S.C. § 924(e)(1) (emphasis supplied). On the date of sentencing by this court,
Nall had three previous convictions for first degree unlawful possession of marijuana
under Alabama law, which is a “serious drug offense.”3
Nall did not appeal his sentence. Instead, he filed the present motion to vacate,
set aside, or correct sentence on June 27, 2016. And there proceedings lay for nearly
two years, until June 18, 2018, when this court entered an order requiring the United
States to appear within thirty days, and to file an answer in accordance with Rule 5
of the Rules Governing Section 2255 Proceedings.4 The delay is inexplicable and,
except for the reasons discussed hereafter, would not be excusable.
DISCUSSION
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;
3

See doc. no. 14 in case no. 7:08-cr-0161-CLS-TMP (Government’s Sentencing
Memorandum), at 2-3.
4

See doc. no. 4 in case no. 7:16-cv-8106-CLS (Order).
2

(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 ).
Nall’s conviction and sentence became final on July 14, 2009. See Murphy v.
United States, 634 F.3d 1303, 1307 (11th Cir. 2011) (“[W]e have concluded that
when a defendant does not appeal his conviction or sentence, the judgment of
conviction becomes final when the time for seeking that review expires.”) (alteration
supplied); Fed. R. App. P. 4(b)(1)(A) (providing that a criminal defendant must file
an appeal within fourteen days of the entry of judgment). Because that was nearly
seven years before the date in June 2016 when Nall filed the present motion with this
court, Nall’s motion cannot be considered timely under § 2255(f)(1). There also is no
indication that Nall was prevented by governmental action from making his motion,
or that he has discovered new facts to support his claim, so his motion cannot be
considered timely under § 2255(f)(2) or (4).
3

Instead, Nall asserts that the Supreme Court’s June 26, 2015 decision in
Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), constituted “a new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” See 28 U.S.C. § 2255(f)(3). Nall’s
motion was not entered on this court’s docket until June 27, 2016, a year and a day
after the Johnson decision was rendered. Even so, the motion could be considered
timely because Nall, who still is incarcerated, placed it in the prison mailing system
on June 24, 2016, less than a year after the Johnson decision.5 See Rule 3(d) of the
Rules Governing Section 2255 Proceedings (“A paper filed by an inmate confined in
an institution is timely if deposited in the institution’s internal mailing system on or
before the last day for filing. If an institution has a system designed for legal mail,
the inmate must use that system to receive the benefit of this rule. Timely filing may
be shown by a declaration in compliance with 28 U.S.C. Sec. 1746 or by a notarized
statement, either of which must set forth the date of deposit and state that first-class
postage has been prepaid.”).
But Nall can claim the benefit of the extended filing period only if the right
asserted by him in his present § 2255 motion was initially recognized by the Supreme

5

See doc. no. 1 in case no. 7:16-cv-8106-CLS (Motion to Vacate Sentence Pursuant to 28
U.S.C. § 2255).
4

Court in Johnson, supra, and that newly recognized right was made retroactively
applicable to cases on collateral review. See 28 U.S.C. § 2255(f)(3).
It is well-established that the Supreme Court’s 2015 decision in Johnson
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 Nall, however, he did not file a claim that complies with the
rationale of the Johnson decision.
Even though Nall’s motion mentions the Johnson decision, it does not seek the
type of relief that was newly recognized by Johnson. That decision held that the socalled “residual clause” of the ACCA’s definition of the term “violent felony” was
unconstitutionally vague. See Johnson, 135 S. Ct. at 2563. The Johnson decision did
not address the use of “serious drug offenses” to enhance a sentence under the ACCA,
or any of the other arguments asserted by Nall in his § 2255 motion.
Thus, because Nall’s present motion does not assert a claim based upon the
right that was newly recognized by the Supreme Court’s opinion in Johnson, supra,
the motion is due to be denied. An appropriate final judgment will be entered
contemporaneously herewith.

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DONE and ORDERED this 9th day of August, 2018.

______________________________
United States District Judge

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