Curtis v. United States of America
Filing
10
OPINION AND ORDER dismissing as untimely 1 Motion to vacate, set aside, or correct sentence (2255), or in the alternative denying as without merit. The Clerk shall enter judgment accordingly, file a copy of the judgment in the corresponding criminal case (Case No. 2:04-cr-4-FTM-29SPC), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 11/2/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT R. CURTIS,
Petitioner,
vs.
Case No.
Case No.
2:10-cv-203-FtM-29SPC
2:04-cr-4-FTM-29SPC
UNITED STATES OF AMERICA,
Respondent.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside, or Correct
Sentence
by
a
person
in
Federal
Custody
supporting Memorandum (Cv. Doc. #2).
(Cv.
Doc.
#1)1
and
The Government filed a
Response in Opposition to Petitioner’s Motion to Vacate, Set Aside
or Correct Sentence, Pursuant to 28 U.S.C. Section 2255 (Cv. Doc.
#8) seeking to dismiss the § 2255 motion as untimely.
filed a Traverse of Petitioner (Cv. Doc. #9).
Petitioner
For the reasons set
forth below, Petitioner’s motion pursuant to Section 2255 is
untimely and accordingly will be dismissed.
Further, even if
Petitioner had timely filed his motion, his arguments do not merit
the relief sought.
1
The Court will make references to the dockets in the instant
action and in the related criminal case throughout this Opinion and
Order.
The Court will refer to the docket of the civil habeas
case as “Cv. Doc.”, and will refer to the docket of the underlying
criminal case as “Cr. Doc.”
I.
On January 21, 2004, a grand jury sitting in the Middle
District of Florida returned a one-count indictment charging Robert
R. Curtis (Petitioner or Curtis) with possession with intent to
distribute five (5) grams or more of cocaine base, in violation of
21 U.S.C. Section 841(a)(1) and Section 841(b)(1)(B)(iii).
(Cr.
Doc. #1.) Petitioner thereafter waived indictment and consented to
the
filing
distribution
of
a
of
one-count
an
Superseding
unspecified
quantity
Information
of
cocaine
charging
base,
in
violation of 21 U.S.C. Section 841(a)(1) and Section 841(b)(1)(c).
(Cr. Docs. #17, 23, 24.)
Petitioner then pled guilty to the
Superseding Information without a plea agreement.
(Cr. Docs. #24-
26.)
At sentencing, Petitioner was determined to be a career
offender based upon three prior State of Florida convictions for
sale of cocaine. Petitioner did not dispute the fact of the
convictions, but argued that for various legal reasons he could not
be sentenced as a career offender.
these
arguments,
and
sentenced
The district court rejected
Petitioner
to
169
months
imprisonment, which was in the middle of the resulting Sentencing
Guidelines range.
(Cr. Doc. #33.)
On direct appeal Petitioner challenged the lawfulness of his
sentence as a career offender.
The Eleventh Circuit Court of
Appeals affirmed his conviction and sentence.
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United States v.
Curtis, 135 F. App’x 232 (11th Cir. 2005).
On October 11, 2005,
the Supreme Court denied certiorari review.
Curtis v. United
States, 126 S. Ct. 461 (2005).
On April 1, 2010, Petitioner filed his § 2255 motion (Cv. Doc.
#1; Cr. Doc. #60) raising two issues: (1) the district court lacked
jurisdiction to sentence him as a career offender because he did
not have the sufficient number of qualifying prior convictions
(Civ. Doc. #2, p. 4); and (2) he is actually innocent of being a
career offender based on the Supreme Court’s ruling in Johnson v.
United States, 130 S. Ct. 1265 (2010).
Giving Petitioner the
benefit of the “mailbox rule,” Houston v. Lack, 487 U.S. 266
(1988), Washington v. United States, 243 F.3d 1299, 1301 (11th Cir.
2001), the Court will deem the § 2255 motion to have been filed on
March 30,
2010,
the
date
Petitioner
signed
the
subject
to
motion
while
incarcerated.
II.
A
§
2255
motion
is
ordinarily
limitations period in 28 U.S.C. § 2255(f).
626 F.3d 1167, 1169 (11th Cir. 2010).
the
one
year
Long v. United States,
A petitioner has one year
from the latest of any of four events to file a § 2255 motion: (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
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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)(1)-(4); see also Pruitt v. United States, 274
F.3d 1315, 1317 (11th Cir. 2001).
The statute of limitations for Petitioner began to run when
his conviction became final.
28 U.S.C. § 2255(f)(1).
If a
petition for certiorari is filed with the United States Supreme
Court, a conviction becomes final when the Supreme Court denies
certiorari or rules on the merits.
314, 321, n.6 (1987).
Griffith v. Kentucky, 479 U.S.
Petitioner’s conviction became final on
October 11, 2005, the day the Supreme Court denied certiorari.
Therefore, Petitioner had until October 11, 2006, to file a motion
under § 2255.
Petitioner did not file his § 2255 motion until
March 30, 2010, approximately three and one half years after the
expiration of the statute of limitations.
Because Petitioner is proceeding pro se, the Court reads his
pleadings liberally.
Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998).
to
both
the
Petitioner
timeliness
argues
that
Petitioner presents two arguments related
of
the
the
§2255
lack
-4-
of
motion
a
and
sufficient
its
merits.
number
of
qualifying
prior
“jurisdiction”
to
convictions
sentence
divested
him
jurisdiction can never be waived.
as
the
a
district
career
court
offender,
of
and
Additionaly, Petitioner argues
that the Supreme Court recognized a new right on March 2, 2010,
when it decided Johnson, which makes him actually innocent of being
a career offender, which makes his § 2255 motion timely or excuses
the timeliness default.
(Cv. Doc. #1, p. 4.)
For the reasons
discussed below, neither argument is meritorious.
A. Subject Matter Jurisdiction
Petitioner argues that the three prior Florida convictions
which formed the predicate for his career offender status are not
qualifying felony convictions under the career offender provisions.
Therefore,
Petitioner
argues,
the
district
court
lacked
jurisdiction to sentence him with the career offender enhancement,
and jurisdiction cannot be waived or defaulted. Because Petitioner
is incorrect in asserting that his prior convictions were not
qualifying predicate offenses, his jurisdiction2 argument fails.
While Petitioner emphasizes 28 U.S.C. § 994(h), that provision
simply directed the Sentencing Commission to assure that the
2
There is no question but that a district court lacks the
authority to sentence a defendant as a career offender if defendant
does not have a sufficient number of qualifying prior convictions.
This is not the same thing as saying a court is without
“jurisdiction”, which refers to “the courts’ statutory or
constitutional power to adjudicate the case.” United States v.
Cotton, 535 U.S. 625, 630 (2002)(quoting Steel Co. v. Citizens for
a Better Env’t, 523 U.S. 83, 89 (1998)).
-5-
Sentencing Guidelines specify a sentence at or near the maximum
term for defendants who are eighteen years old, are convicted of a
felony crime of violence or certain federal drug offenses, and have
previously been convicted of two or more felonies which are a crime
of
violence
or
an
offense described
in
certain
federal
drug
statutes. Pursuant to this Congressional directive, the Sentencing
Commission enacted § 4B1.1 of the Sentencing Guidelines.
States v. LaBonte, 520 U.S. 751, 753 (1997).
United
At the time of
Petitioner’s sentencing this provision provided that a defendant
was a “career offender” if (1) he was “at least eighteen years old
at the time [he] committed the instant offense of conviction,” (2)
“the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense,” and (3) “the
defendant has at least two prior felony convictions of either a
crime of
violence
or
a
controlled substance offense.”
Sentencing Guideline Manual (U.S.S.G.) § 4B1.1(a) (2003).
U.S.
A
“controlled substance offense” was “an offense under federal or
state law, punishable by imprisonment for a term exceeding one
year, that prohibits the manufacture, import, export, distribution,
or
dispensing
of
a
controlled
substance
(or
a
counterfeit
substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export,
distribute, or dispense.”
U.S.S.G. § 4B1.2(b) (2003).
While Petitioner had other felony convictions, his career
-6-
offender status was premised on three Florida convictions for sale
of cocaine.
The Presentence Report establishes that in 1990
petitioner pled no contest to the sale of cocaine (and possession
of cocaine) and adjudication was withheld; in 1993 Petitioner pled
no
contest
to
three
counts
of
the
sale
of
cocaine
and
was
adjudicated guilty; and in 1998 Petitioner pled no contest to the
sale of cocaine (and possession of cocaine) and was adjudicated
guilty.
A federal court is “bound by the Florida Supreme Court's
interpretation of state law, including its determination of the
elements of” a criminal offense.
Johnson, 130 S. Ct. at 1269.
See
also United States v. Shannon, 631 F.3d 1187, 1189 (11th Cir.
2011).
Under Florida law, sale of cocaine is and was a felony
offense punishable by a term of imprisonment of five years.
Fla.
Stat. § 893.13(1)(a)1. (2003)(second degree felony for any person
“to sell, manufacture, or deliver, or possess with intent to sell,
manufacture, or deliver, a controlled substance”); Fla. Stat. §
893.03(2)(a)(4) (classifying cocaine as a Schedule II controlled
substance).
Sale of controlled substance involves delivery of the
substance in exchange for consideration. State v. Stewart, 374 So.
2d 1381, 1383 (Fla. 1979).
Having determined the elements of a criminal offense using
state law, the issue of whether a state conviction is a qualifying
controlled
substance
offense
is
-7-
determined
under
federal
law
unencumbered by state law.
See Johnson, 130 S. Ct. at 1269,
holding that the meaning of a term in the federal Armed Career
Offender statute “is a question of federal law, not state law. And
in answering that question we are not bound by a state court's
interpretation of a similar--or even identical--state statute.”
Id. Petitioner has never disputed that he was convicted of sale of
cocaine as set forth in the Presentence Report.
Each sale of
cocaine was “an offense under . . . state law, punishable by
imprisonment for a term exceeding one year, that prohibits the
.
. . distribution3 . . . of a controlled substance . . . .”
U.S.S.G. § 4B1.2(b) (2003).
Each sale of cocaine was therefore a
qualifying predicate offense, and the district court had the
authority to sentence Petitioner as a career offender.
Therefore,
Petitioner’s argument fails both as a basis under which to find the
§ 2255 motion timely and on the merits of his career offender
status.
B.
Relief Under 2255(f)(3) and Actual Innocence
Petitioner’s second argument is that the Supreme Court’s
decision in Johnson renders him actually innocent of the sentencing
enhancement.
Because of this, Petitioner argues that his § 2255
motion is timely under § 2255(f)(3) or its untimeliness is excused
on the basis of his actual innocence.
3
“Distribution” of a controlled substance simply means to
deliver a controlled substance.
21 U.S.C. § 802(11).
-8-
Section
2255(f)(3)
provides
that
the
one-year
limitation
period can run, or be re-started, from a “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.” 28 U.S.C.
§ 2255(f)(3).
To come within this statute, Petitioner must show
that the right he asserts is (1) a new right recognized by the
Supreme Court, which (2) is retroactively applicable to his case.
For purposes of § 2255(f)(3), the one-year limitations period
begins running on the date the Supreme Court decided the case which
initially recognized the right being asserted, not the date on
which the Supreme Court decided retroactivity.
Dodd v. United
States, 545 U.S. 353, 357, 360 (2005).
In Johnson, the Supreme Court considered whether the Florida
felony battery offense under Fla. Stat. § 784.03(1)(a), (2) (2003)
was
a
“violent
felony”
under
the
Armed
Career
Criminal
Act
(“ACCA”), 18 U.S.C. § 924(e)(1). The Supreme Court determined that
in order for a crime to be a violent felony, it must involve
“violent force,” further defined by the Court as “force capable of
causing physical pain or injury to another.”
, 130 S.Ct. at 1271.
Johnson, 559 U.S. at
Petitioner argues that Johnson announced a
new substantive rule of criminal law made retroactively applicable
-9-
to cases on collateral review.4
Even
if the
Court assumes
that
Johnson
announced
a
new
substantive rule of criminal law and that it is retroactively
applicable to cases on collateral review, Petitioner’s § 2255
motion remains untimely.
Johnson addressed what constitutes a
“violent felony,” which is the equivalent of a crime of violence
under the career offender provision.
F.3d 1347, 1352 (11th Cir. 2008).
United States v. Archer, 531
Petitioner’s career offender
status was not dependent on a prior conviction which was considered
a crime of violence. Rather, petitioner had three prior controlled
substance offenses, i.e., three prior convictions for sale of
cocaine.
right,
it
Therefore, even if Johnson announced a new retroactive
has
no
possible
application
to
Petitioner’s
case.
Petitioner’s § 2255 motion is not timely under § 2255(f)(3).
Petitioner
also
asserts
that
his
untimeliness
should
be
excused because he is actually innocent of being a career offender.
A court may excuse a petitioner’s procedural default such as
untimeliness if Petitioner establishes (1) cause and prejudice or
(2) a miscarriage of justice or actual innocence.
McKay v. United
States, No. 09-15099, ___ F. 3d. ___, 2011 WL 4389641, at *4 (11th
Cir. Sept. 22, 2011).
Neither the United States Supreme Court nor
the Eleventh Circuit has ever held that the Constitution requires
4
The Supreme Court decided Johnson on March 2, 2010; Petitioner
filed his § 2255 motion on March 30, 2010.
-10-
an actual innocence exception to the one-year limitations period of
§ 2255(f) in the context of non-capital sentencing. McKay, 2011 WL
4389641 at *5 (11th Cir. 2011);
513
F.3d
1328,
1333
(11th
Johnson v. Fla. Dep’t of Corr.,
Cir.
2008).
Assuming
the
actual
innocence exception does apply in a non-capital sentencing context
such
as
this,
McKay
held
that
it
would
not
apply
where
a
petitioner’s claim is one of legal, rather than factual, innocence.
Id. at *6.
McKay makes the purely legal argument that he is actually
innocent of his career offender sentence because his
prior conviction for carrying a concealed weapon should
not have been classified as a “crime of violence” under
the Guidelines. McKay does not even suggest, because he
cannot, that he did not actually commit the crime of
carrying a concealed weapon. In other words, he makes no
claim of factual innocence of the predicate offense. No
circuit court has held that the actual innocence
exception is available for claims of purely legal
innocence, like McKay's, and we refuse to do so as well.
Thus, even if the actual innocence exception were to
extend to the noncapital sentencing context (a question
we need not decide), this exception would not apply to
McKay's claim of legal innocence and thus could not
excuse his procedural default.
McKay, 2011 WL 4389641 at *7 (emphasis in original).
Petitioner
does not argue that he is factually innocent of the sales of
cocaine, but argues instead that he is legally innocent based on
the Johnson decision.
Even
if
actual
innocence
is
an
Petitioner, it has not been established.
available
argument
to
As noted above, nothing
in Johnson discusses the controlled substance offense predicate of
a career offender.
The principle that a federal court must honor
-11-
and apply the state court’s interpretation of its own state law is
not a principle first announced in Johnson.
Johnson v. Fankell,
520 U.S. 911, 916 (1997)(“Neither this Court nor any other federal
tribunal has any authority to place a construction on a state
statute different from the one rendered by the highest court of the
state”, citing cases dating from 1967).
Therefore, Petitioner’s
actual innocent argument if available, is without merit.
Accordingly, it is now
ORDERED:
1.
Petitioner’s Motion Under 28 U.S.C. Section 2255 to
Vacate, Set Aside, or Correction Sentence By a person in Federal
Custody (Doc. #1) is DISMISSED AS UNTIMELY, or in the alternative
is DENIED AS WITHOUT MERIT.
2.
The Clerk shall enter judgment accordingly and close the
civil case.
The Clerk is further directed to file a copy of the
civil judgment in the criminal case file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas corpus
has no absolute entitlement to appeal a district court’s denial of
his petition.
28 U.S.C. § 2253(c)(1).
Rather, a district court
must first issue a certificate of appealability (COA).
Id.
“A
[COA] may issue . . . only if the applicant has made a substantial
-12-
showing of the denial of a constitutional right.”
2253(c)(2).
Id. at §
To make such a showing, petitioner “must demonstrate
that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong,” Tennard v.
Dretke, 542 U.S. 274, 282 (2004)(quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that “the issues presented were ‘adequate
to
deserve
encouragement
to
proceed
further,’”
Miller-El
v.
Cockrell, 537 U.S. 322, 336 (2003)(quoting Barefoot v. Estelle, 463
U.S. 880, 893 n.4 (1983)).
The requisite grounds do not exist in
this case.
DONE AND ORDERED at Fort Myers, Florida, this
November, 2011.
Copies:
Parties of Record
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2nd
day of
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