Payne v. United States of America
Filing
13
OPINION AND ORDER dismissing 1 Motion to vacate, set aside, or correct sentence (2255) as untimely. The Clerk shall enter judgment accordingly, place a copy of the judgment in the associated criminal case (Case No. 2:06-cr-17-FTM-29DNF), 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 12/8/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES RANDOLPH PAYNE,
Petitioner,
vs.
Case No. 2:10-cv-511-FtM-29DNF
Case No. 2:06-CR-17-FtM-29DNF
UNITED STATES OF AMERICA,
Respondent.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Petitioner James R.
Payne's Motion to Vacate, Set Aside, or Correct Sentence § 2255
(Cv. Doc. #1, Cr. Doc. #70)1 filed on August 20, 2010.
The United
States filed a Response seeking to dismiss the § 2255 motion as
untimely.
(Cv. Doc. #9.)
Petitioner filed a Reply Motion.
(Cv.
Doc. #12.)
I.
On January 18, 2006, a grand jury returned a three count
Indictment against James Randolph Payne (Payne or petitioner)
charging him with conspiracy to distribute a substance containing
a detectable amount of methamphetamine (Count One), possession with
intent to distribute a substance containing a detectable amount of
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.”
methamphetamine
(Count
Two),
and
possession
with
intent
distribute a detectable amount of marijuana (Count Three).
Doc. #1.)
to
(Cr.
On June 28, 2006, petitioner pled guilty to Count One of
the Indictment pursuant to a Plea Agreement providing that the
remaining
two
counts
would
be
dismissed.
(Cr.
Doc.
#31.)
Petitioner’s guilty plea as to Count One was accepted the same day.
(Cr. Doc. #33.)
On November 27, 2006, petitioner was sentenced to a term of
210 months imprisonment and 3 years supervised release. (Cr. Docs.
## 45, 65.)
Petitioner was scored as a career offender under
United States Sentencing Guidelines (USSG) § 4B1.1 based on a 1991
aggravated battery conviction and a 1987 burglary conviction.
(Presentence Report (PSR) ¶32.)
Although the career offender
designation did not affect petitioner’s base offense level score,
(PSR ¶36), it did increase his criminal history category from
Category IV to Category VI (PSR ¶¶ 47, 48).
Petitioner filed a
Motion for a Departure Sentence (Cr. Doc. #43) predicated upon the
staleness of the prior convictions, which the Court granted,
reducing the criminal history category from VI to V.
46, 65.)
(Cr. Docs. ##
The 210 month sentence fell at the low end of the
adjusted Sentencing Guidelines range. (PSR ¶84 & page 20, Cr. Doc.
#65.)
Counts Two and Three were dismissed.
(Cr. Docs. ## 45, 65.)
Judgment was entered on November 28, 2006. (Cr. Doc. #45.)
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On December 6, 2006, petitioner filed a direct appeal with the
United States Court of Appeals for the Eleventh Circuit (Cr. Doc.
#48.)
On December 26, 2007, the Eleventh Circuit dismissed the
petitioner’s
appeal
based
petitioner’s Plea Agreement.
on
the
valid appeal waiver
(Cr. Doc. #69.)
in
the
Petitioner did not
file for a writ of certiorari with the United States Supreme Court.
Petitioner now brings this 28 U.S.C. § 2255 motion, which read
liberally, Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998), sets forth a single claim.
Petitioner asserts that
under the intervening decision of Johnson v. United States, 130 S.
Ct. 1265 (2010), his 1991 aggravated battery conviction does not
qualify as a violent felony, and therefore he does not qualify as
a career offender under USSG § 4B1.1, his sentence must be vacated,
and he must be re-sentenced.
II.
The United States argues in its Response that petitioner’s
motion is untimely under § 2225(f).
(Cv. Doc. #9, p. 4.)
Read
liberally, petitioner responds that his § 2255 motion is timely
because he is entitled to statutory tolling or, alternatively, he
is entitled to consideration of the § 2255 motion based upon his
actual innocence of the career offender enhancement.
#12.)
The Court addresses each issue.
-3-
(Cv. Doc.
A. Statute of Limitations
A
§
2255
motion
is
ordinarily
subject
limitations period in 28 U.S.C. § 2255(f).
626 F.3d 1167, 1169 (11th Cir. 2010).
to
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
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).
Because a
petition for certiorari was not filed with the United States
Supreme Court, the conviction becomes final at the end of the 90
day
period
during
which
petitioner
could
have
filed
such
a
petition, i.e., 90 days after entry of the appellate court’s
judgment.
Clay v. United States, 537 U.S. 522, 532 (2003);
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Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002).
The Eleventh Circuit entered its order dismissing petitioner’s
appeal on December 26, 2007.
The 90 day period expired on March
26, 2008, which is the date petitioner’s conviction became final.
Petitioner thus had until Thursday, March 26, 2009 to file a § 2255
motion.
Petitioner signed his §2255 Motion on August 14, 2010, and it
was filed with the court on August 20, 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
August 14, 2010.
The § 2255 motion was
still filed almost
seventeen months after the expiration of one year time period.
Therefore,
petitioner’s
motion
is
time-barred
unless
another
statutory provision re-starts the time or the default is excused.
Petitioner asserts that his § 2255 motion is timely under §
2255(f)(3) or that its untimeliness is excused on the basis of his
actual innocence of the enhancement.
The Court addresses each
argument.
B.
Section 2255(f)(3)
In his reply motion, petitioner asserts he “timely filed
pursuant to § 2255(f)(3), within one year of the retroactive
Johnson decision.”
2255(f)(3)
is
only
(Cv. Doc. #12.)
applicable
if
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The one year period under §
the
“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).
Johnson
was decided on March 2, 2010, so Petitioner did file the § 2255
motion within a year of Johnson.
that
the
§
2255
motion
is
The Court concludes, however,
untimely
because
Johnson
is
not
retroactive.
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.”
at 1271.
Johnson, 130 S. Ct.
Johnson concluded that because criminal liability under
§ 748.03(1)(a) is satisfied by any intentional physical contact, no
matter how slight, that crime does not have the use of physical
force as an element, as required by the ACCA definition of “violent
felony.”
Johnson, 130 S. Ct. at 1269-71.
“[A] new rule is not made retroactive to cases on collateral
review unless the Supreme Court holds it to be retroactive.” Tyler
v.
Cain,
533
U.S.
656, 663 (2001)
(internal
quotation
marks
omitted); In re Joshua, 224 F.3d 1281, 1283 (11th Cir. 2000) (“For
a new rule to be retroactive, the Supreme Court must make it
retroactive to cases on collateral review.”).
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An examination of
the Court's opinion in Johnson reveals it was not made retroactive
to cases on collateral review.
Johnson does not use the word
“retroactive,” let alone discuss application to cases of collateral
review.
See In re Patterson, No. 10-13445-D, 2010 U.S. App. LEXIS
26606, at *3 (11th Cir. Aug. 12, 2010) (“In Johnson, the Supreme
Court did not discuss the applicability of its ruling as to
retroactivity on collateral review and, thus, did not explicitly
make the case retroactive on collateral review.”).
See also
Berryhill v. United States, Case No: 8:11-cv-444-T-30MAP, 2011 U.S.
Dist. LEXIS 110880, at *3 (M.D. Fla. Sept. 28, 2011) (same);
Jackson v. United States, Case No: 8:10-cv-2000-T-27TBM, 2011 U.S.
Dist. LEXIS 101056, at *7 (M.D. Fla. Sept. 8, 2011) (same);
Crawford v. United States, Case No. 8:11-cv-1866-T-30TGW, 2011 U.S.
Dist. LEXIS 94291, at *5 (M.D. Fla. Aug. 23, 2011) (same); Rogers
v. United States, Case No. 8:10-cv-1873-T-27EAJ, 2011 U.S. Dist.
LEXIS 91911, at *9 (M.D. Fla. Aug. 17, 2011) (same); Hires v.
United States, Case No. 8:11-Cv-388-T-30TGW, 2011 U.S. Dist. LEXIS
90040, at *5 (M.D. Fla. Aug. 12, 2011) (same); United States v.
Waddy, Case No. 8:11-cv-892-T-23MAP, 2011 U.S. Dist. LEXIS 78724,
at *2 (M.D. Fla. July 20, 2011) (same); McGowan v. United States,
Case No. 8:10-CV-2526-T-30EAJ, 2011 U.S. Dist. LEXIS 65677, at *6
(M.D. Fla. June 21, 2011) (same); Tarver v. United States, Case No.
8:10–CV–2529–T–30MAP, 2011 WL 2970089, at *2 (M.D. Fla. June 20,
-7-
2011) (same).
Since Johnson has not been found retroactive, §
2255(f)(3) does not apply to petitioner.
C. Fundamental Miscarriage of Justice or Actual Innocence
The core assertion in petitioner’s motion is that he is
actually innocent of the sentencing enhancement because of Johnson.
(Cv. Doc. #1, Cr. Doc. #70.)
removes
his
Florida
Petitioner argues that Johnson
aggravated
consideration as a violent felony.
battery
conviction
from
Relying on Small v. Florida,
889 So. 2d 862 (Fla. 1st DCA 2004), petitioner argues that his 1991
conviction for aggravated battery does not rest upon the use of
physical force, but rather only simple battery.
Petitioner is
incorrect.
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.
States, 657 F.3d 1190, 1196 (11th Cir. 2011).
McKay v. United
Neither the United
States Supreme Court nor the Eleventh Circuit has ever held that
the Constitution requires an actual innocence exception to the oneyear limitations period of § 2255(f) in the context of non-capital
sentencing.
McKay, 657 F.3d at 1197; Johnson v. Fla. Dep’t of
Corr., 513 F.3d 1328, 1333 (11th 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.
-8-
Id. at 1197.
It is well settled that actual innocence “means
factual innocence, not mere legal insufficiency.”
Bousley v.
United States, 523 U.S. 614, 623 (1998); Lynn v. United States, 365
F.3d 1225, 1235 n.18 (11th Cir. 2004).
Additionally, the Eleventh
Circuit has declined “to extend the actual innocence of sentence
exception to claims of legal innocence of a predicate offense
justifying an enhanced sentence.”
McKay, 657 F.3d at 1199.
Petitioner’s claim is one of legal innocence and not one of
factual innocence.
He does not claim, and has never claimed, he
did not commit the aggravated battery.
Rather, he claims actual
innocence of his career offender sentence in light of Johnson.
This is a claim of innocence based upon a legal standard, not a
claim of innocence based upon not having committed the predicate
offense.
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, 657 F.3d at 1199 (footnote omitted).
Petitioner's argument
therefore does not operate to excuse his procedural default.
-9-
Actual innocence does not excuse a procedural default because a
defendant
cannot be
offender enhancement.
convicted
of
being guilty of
the
career
Guyton v. United States, 2011 WL 5839709
(11th Cir. 2011).
Further, Johnson would not even provide a basis of legal
innocence for petitioner.
Johnson concluded that “in the context
of a statutory definition of ‘violent felony' the phrase ‘physical
force' means ‘violent force' - that is, force capable of causing
physical pain or injury to another person.”
1271.
Johnson, 130 S. Ct. at
Aggravated battery under Florida law is defined as follows:
(1)(a) A person commits
committing battery:
aggravated
battery
who,
in
1. Intentionally or knowingly causes great
bodily
harm,
permanent
disability,
or
permanent disfigurement; or
2. Uses a deadly weapon.
(b) A person commits aggravated battery if the person who
was the victim of the battery was pregnant at the time of
the offense and the offender knew or should have known
that the victim was pregnant.
(2) Whoever commits aggravated battery shall be guilty of
a felony of the second degree, punishable as provided in
s. 775.082, s. 775.083, or s. 775.084.
Fla. Stat. § 784.045.
Petitioner’s argument regarding his 1991
aggravated battery conviction2 turns on the interplay between Small
2
Payne’s 1991 conviction for aggravated battery resulted from
an incident in December 1990. The aggravated battery statute has
not changed between 1990 and 2011. Compare Fla. Stat. § 784.045
(1990) with Fla. Stat. § 784.045 (2011).
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v. Florida, 889 So. 2d 862 (Fla. 1st DCA 2004), and Johnson.
In
Small the portion of the aggravated battery statute considered was
§ 784.045(1)(b), which pertains to battery of a pregnant victim
when the offender knew or should have known that the victim was
pregnant.
Small, 889 So. 2d at 863.
But neither Small nor §
784.045(1)(b) apply to petitioner’s case.
The
Presentence
Report
establishes
that
petitioner’s
aggravated battery did not involve a pregnant person, since the
charge arose from an altercation with a man who had stopped to help
the petitioner.
The report discloses that, “upon returning to the
vehicle, he [the passerby victim] was attacked by Payne.”
¶46,
emphasis
added.)
Petitioner
did
not
object
the
(PSR
factual
allegations in the PSR, and therefore is deemed to have admitted
them. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006).
The Court may consider undisputed facts in a Presentence Report to
determine a defendant’s career offender status.
United States v.
Anderson, No. 11–11085, 2011 WL 4862955, at *1 (11th Cir. Oct. 14,
2011) (citing United States v. Beckles, 565 F.3d 832, 844 (11th
Cir.) cert. denied, 130 S. Ct. 272 (2009)). Payne’s conviction was
under the 1990 aggravated battery statute, the elements of which
are (1) to knowingly cause great bodily harm, permanent disability
or permanent disfigurement; or (2) with use of a deadly weapon.
Fla. Stat. § 784.045(1)(a) (1990); Florida v. Williams, 9 So. 3d
658, 660 (Fla. 4th DCA 2009).
The Presentence Report does not
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indicate the presence of a deadly weapon, and committing a battery
which causes “great bodily harm, permanent disability or permanent
disfigurement,” Fla. Stat. § 784.045(1)(a)(1), clearly qualifies as
a violent felony under Johnson.
Accordingly, it is now
ORDERED:
1.
Petitioner's Motion to Vacate, Set Aside, or Correct
Sentence § 2255 (Cv. Doc. #1, Cr. Doc. #70) is DISMISSED AS
UNTIMELY for the reasons set forth above.
2.
The Clerk of the Court shall enter judgement accordingly,
terminate any pending motions, and close the civil file. The Clerk
is further directed to place a copy of the civil judgment in the
criminal 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); Harbison v. Bell, 556 U.S.
180, 129 S. Ct. 1481, 1485 (2009). “A [COA] may issue . . . only if
the applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(2).
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)
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or,
that
“the
issues
presented
were
‘adequate
to
deserve
encouragement to proceed further,’” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (citation omitted).
Petitioner has not made the
requisite showing in these circumstances.
Further, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to proceed in forma pauperis
on appeal.
DONE AND ORDERED at Fort Myers, Florida, this
December, 2011.
Copies:
James Randolph Payne
Robert P. Barclift, AUSA
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8th
day of
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