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
- 3 -
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
- 5 -
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
- 6 -
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
- 7 -
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
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