Nash v. United States of America

Filing 30

OPINION AND ORDER denying as moot 29 Motion for Reconsideration; dismissing 1 Motion to vacate/set aside/correct sentence (2255) as untimely, or in the alternative, denying because petitioner is not entitled to relief. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:12-cr-88-FTM-29UAM), 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 5/4/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRANDON NASH,
Petitioner,
v.

Case No: 2:15-cv-429-FtM-29MRM
Case No. 2:12-CR-88-FTM-29UAM

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 (Cv. Doc. #1; Cr. Doc.
#61) 1 filed on July 17, 2015, arguing that Johnson v. United States,
135 S. Ct. 2551 (2015) applies retroactively to remove his career
offender status.

The government filed a Response in Opposition

to Motion (Cv. Doc. #8), and petitioner filed a Reply (Cv. Doc.
#9).

The Court granted petitioner leave to supplement his Motion

post-Welch v. United States, 136 S. Ct. 1257 (2016), and petitioner
filed

his

Supplement

(Cv.

Doc.

#12)

on

May

26,

2016.

The

government filed a Supplemental Response in Opposition (Cv. Doc.

1

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.”

#13) on June 24, 2016, arguing that Johnson remains inapplicable
and relief was foreclosed by United States v. Matchett, 802 F.3d
1185 (11th Cir. 2015).
I.
On August 3, 2016, the Court stayed the case pending review
by the United States Supreme Court from Beckles v. United States,
616 F. App'x 415, 416 (11th Cir. 2015), and appointed counsel to
review the case.

(Cv. Doc. #15.)

On March 6, 2017, the United

States Supreme Court affirmed the Eleventh Circuit in Beckles v.
United States, 137 S. Ct. 886 (2017), and determined that the
Sentencing

Guidelines

are

not

subject

to

a

constitutional

challenge for vagueness thereby foreclosing relief for petitioner
who

was

not

enhancement.

sentenced

under

an

Armed

Career

Criminal

Act

As a result, on March 20, 2017, the Court lifted the

stay and directed petitioner to notify the Court if the motion was
due to be dismissed, or if petitioner wished to proceed.
Doc. #19.)
withdraw

(Cv.

In response, the Federal Public Defender moved to

because

petitioner

wished

additional briefing of his own.

to

proceed

(Cv. Doc. #24.)

pro

se

with

The Federal

Public Defender was permitted to withdraw without opposition.
(Cv.

Doc.

#27.)

On

April

25,

2017,

the

undersigned

denied

petitioner’s request to file a second supplement on his own behalf
because the Court noted that the original Motion appeared to be

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untimely and therefore the additional claims could not be raised.
(Cv. Doc. #28.)
II.
On July 25, 2012, a federal grand jury in Fort Myers, Florida
returned a one-count Indictment (Cr. Doc. #1) charging petitioner
with distribution of 28 grams or more of crack cocaine.

Petitioner

signed a Waiver of Indictment (Cr. Doc. #32, and on March 25, 2013,
entered a plea of guilty to a one-count Information (Cr. Doc. #31)
pursuant to a Plea Agreement (Cr. Doc. #33).
accepted,

and

on

April

9,

2013,

petitioner was adjudicated guilty.

the

plea

The Waiver was
was

accepted

and

(Cr. Docs. ## 39, 41.)

On August 21, 2013, counsel filed a Motion for Variance (Cr.
Doc.

#50)

arguing

for

consideration

of

petitioner’s

personal

history and characteristics, as well as other factors under 18
U.S.C.

§

3553(a).

(Cr.

Doc.

#50.)

The

Court

started

the

sentencing hearing on August 26, 2013, but otherwise continued
sentencing pending a ruling on objections.

(Cr. Doc. #51.)

On

September 3, 2013, the Court issued an Order Regarding Court’s
Sentencing Determinations (Cr. Doc. #53) overruling an objection
to the enhancement for possession of a firearm pursuant to U.S.
Sentencing Guidelines Manual § 2D1.1(b)(1) but sustaining the
objection
fleeing

to
from

the
law

enhancement
enforcement

for

reckless

provided

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endangerment

by

U.S.

while

Sentencing

Guidelines Manual § 3C1.2.

On September 25, 2013, the government

filed a Notice (Cr. Doc. #54) indicating that it would no longer
be seeking an enhancement pursuant to 21 U.S.C. § 841(b).
The Court granted petitioner’s request for a variance for the
reasons stated on the record.
petitioner’s

career

(Cr. Doc. #57.)

offender

status,

After considering

including

his

prior

convictions as a juvenile for aggravated battery, and post-plea
cooperation

that

did

not

rise

to

the

level

of

substantial

assistance, the Court imposed a sentence below the applicable
guideline range of 151 to 188 months of imprisonment.

(Cr. Doc.

#63.)
On October 1, 2013, the Court sentenced petitioner to a term
of imprisonment of 140 months of imprisonment, followed by a term
of supervised release.

(Cr. Doc. #55.)

was filed on October 2, 2013.

Judgment (Cr. Doc. #56)

Petitioner did not appeal to the

Eleventh Circuit, and the conviction became final 14 days after
the October 2, 2013 Judgment on October 17, 2013.

See Mederos v.

United States, 218 F.3d 1252, 1253 (11th Cir. 2000).

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III.
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), federal prisoners have one year from the latest of
any of four events to file a § 2255 Motion:
(1) the date on which
conviction becomes final;

the

judgment

of

(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).
2014

under

Section

Petitioner would have had until October 17,
2255(f)(1)

to

untimely filed on July 17, 2015.

file

his

Motion,

which

was

Petitioner filed his motion

pursuant to Section 2255(f)(3) based on the decision in Johnson
and its retroactive application.
A review of the underlying criminal docket and the Presentence
Report reflects that petitioner was not sentenced under the Armed
Career Criminal Act (ACCA).

Petitioner was sentenced as a career

offender under the sentencing guidelines because he had three prior

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felony convictions that were crimes of violence, including: (1)
aggravated battery with a firearm in Lee County; (2) fleeing or
attempting to elude with wanton disregard under Fla. Stat. §
315.1935(3) (2006) in Lee County; and (3) fleeing and eluding law
enforcement officer with lights, sirens active under Fla. Stat. §
315.1935(2) (2009) in Lee County.

Since petitioner’s sentence was

not enhanced under the ACCA, Johnson and Beckles do not apply to
extend the statutory time limitation of one year from the date
petitioner’s conviction became final, and petitioner’s motion will
be dismissed as untimely.
IV.
To the extent that petitioner sought to argue in his proposed
second supplement that the prior convictions should not have been
counted, see Cv. Doc. #26, p. 5, the Court notes that petitioner’s
argument is without merit and contrary to binding precedent.

See,

e.g., United States v. Travis, 747 F.3d 1312, 1315 (11th Cir. 2014)
(finding flight under Fla. Stat. § 315.1935(1) is a crime of
violence); United States v. Petite, 703 F.3d 1290 (11th Cir. 2013)
(finding flight under Fla. Stat. § 315.1935(2) is a crime of
violence); United States v. Harris, 586 F.3d 1283, 1284 (11th Cir.
2009) (reaffirming that flight under Fla. Stat. § 315.1935(3) is
a crime of violence).
presenting

his

Petitioner was otherwise foreclosed from

supplemental

ineffective

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assistance

of

counsel

arguments

because

petitioner’s

original

motion

was

based

on

Johnson, which does not entitle petitioner to relief.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. Petitioner’s Motion Under 28 U.S.C. Section 2255 to Vacate,
Set Aside or Correct Sentence by a Person in Federal
Custody

(Cv.

Doc.

#1;

Cr.

Doc.

#61)

is

DISMISSED

as

untimely, or in the alternative, is DENIED because he is
not entitled to relief under Johnson and Welch.
2. Petitioner’s Motion for Reconsideration and or Re-Review
(Cv. Doc. #29) is DENIED as moot.
3. The Clerk of the Court shall enter judgment accordingly
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 (COA) 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, 183 (2009).

“A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a
constitutional right.”
showing,

Petitioner

28 U.S.C. § 2253(c)(2).

“must

demonstrate

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that

To make such a

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), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations omitted).

Petitioner has not made the

requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
May, 2017.

Copies:
Petitioner
AUSA

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4th

day of