ALTERMA v. United States of America
Filing
12
OPINION AND ORDER dismissing as time-barred, or alternatively denied re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) Criminal Case No. 2:13-cr-98-Ftm-38CM. The Clerk of the Court is directed to terminate any pending motions, enter judgment accordingly, and close this case. A certificate of appealability is denied and not entitled to proceed in forma pauperis. Signed by Judge Sheri Polster Chappell on 8/17/2017. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JERMAINE ALTERMA,
Petitioner,
v.
Case No: 2:16-cv-450-FtM-38CM
UNITED STATES OF AMERICA,
Respondent.
/
OPINION AND ORDER1
Petitioner Jermaine Alterma (“Petitioner” or “Alterma”) initiated this action by filing
a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 on June
10, 2016 (Doc. 1).
The United States filed a response to the § 2255 motion on
September 12, 2016 (Doc. 8). Alterma filed a reply on October 20, 2016 (Doc. 10).
After due consideration, the Court finds that Alterma’s § 2255 motion should be dismissed
as time-barred, or alternatively, denied on the merits.
Because each of the claims raised in the § 2255 motion is either time-barred,
procedurally barred, contrary to law, or affirmatively contradicted by the record, an
evidentiary hearing is not required. See Holmes v. United States, 876 F.2d 1545, 1553
Disclaimer:
Documents filed in CM/ECF may contain hyperlinks to other
documents or Web sites. These hyperlinks are provided only for users’ convenience.
Users are cautioned that hyperlinked documents in CM/ECF are subject to PACER fees.
By allowing hyperlinks to other Web sites, this court does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on their
Web sites. Likewise, the court has no agreements with any of these third parties or their
Web sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some
other site does not affect the opinion of the court.
1
(11th Cir. 1989) (“A hearing is not required on patently frivolous claims or those which are
based upon unsupported generalizations. Nor is a hearing required where the petitioner’s
allegations are affirmatively contradicted by the record.”).
Background2
On July 24, 2013, a grand jury indicted Alterma on one count of conspiring to
possess cocaine with intent to distribute it, in violation of 21 U.S.C. § 846; two counts of
distributing cocaine, in violation of 21 U.S.C. § 841(a)(1); one count of possessing cocaine
with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1); and one count of being a
convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g) (Cr. 18).
Alterma entered into a plea agreement with the government in which he agreed to
plead guilty to the drug charges in exchange for dismissal of the felon-in-possession
firearm charge (Doc. 44). Based upon Alterma’s prior convictions for felony battery and
the sale of cocaine, the probation office determined that he was a career offender as
defined in § 4B1.1 of the United States Sentencing Guidelines (“USSG”) (Cr. 51, PSR at
¶ 29). Alterma received a guidelines sentence of 156 months in prison and three years
of supervised release (Cr. 55, 57).
Alterma was not sentenced under the Armed Career
Criminal Act (“ACCA”).
Alterma appealed his sentence (Cr. 59). On January 7, 2015, the Eleventh Circuit
granted the government’s motion to dismiss the appeal based on the appeal waiver in
Alterma’s plea agreement (Cr. 77).
Docket entries in Alterma’s underlying criminal case, 2:13-cr-98-SPC-CM-1, will
be cited as (Cr. __).
2
-2-
Subsequently, Alterma filed this § 2255 motion in which he asserts that he should
be resentenced in light of the United States Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015) because he is no longer a “career offender” under
the Sentencing Guidelines (Doc. 1 at 4).
Analysis
a.
Alterma’s 28 U.S.C. § 2255 motion is time-barred
Generally, a § 2255 motion must be filed within one-year of “the date on which the
judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Alterma’s direct appeal
was denied on January 7, 2015 (Cr. 77). Alterma’s conviction became final on April 6,
2015, when his time for seeking certiorari review expired. See Clay v. United States,
537 U.S. 522, 532 (2003). Accordingly, Alterma was required to seek relief under § 2255
before April 7, 2016. Akins v. United States, 204 F.3d 1086, 1089 n. 1 (11th Cir. 2000).
However, he did not file the instant § 2255 until June 3, 2016, almost two months too late
(Doc. 1 at 12).
Alterma acknowledges that his § 2255 motion is untimely, but urges that the United
States Supreme Court’s decision in Johnson triggered the start of a new one-year
limitations period under 28 U.S.C. § 2255(f)(3).3 Specifically, Alterma argues that his §
2255 motion is timely because he raises a right to relief based upon Johnson, which was
decided on June 26, 2015—giving him through June 26, 2016 to file his petition (Doc. 1
Section 255(f)(3) provides a limitations starting date as “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[.]” 28 U.S.C. § 2255(f)(3). On April 18, 2016, the Supreme Court held that
Johnson announced a new substantive rule that applies retroactively to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1264-65 (2016).
3
-3-
at 10). Alterma claims that, in light of Johnson, he is entitled to consideration of the
merits of his claims. In Johnson, the Supreme Court held that the residual clause of the
ACCA was unconstitutionally vague and deprived defendants of due process. 135 S. Ct.
at 2557.
However, Alterma was sentenced under the United States Sentencing
Guidelines, not the ACCA. In Beckles v. United States, 137 S. Ct. 886 (2017), the
Supreme Court determined that the Sentencing Guidelines were not subject to a void for
vagueness challenge under the Fifth Amendment’s Due Process Clause. Thus, Alterma
cannot utilize Johnson to circumvent the one-year statute of limitations.
4
Nor is Alterma entitled to equitable tolling. Equitable tolling is available only when
a petitioner establishes both extraordinary circumstances that prevented timely filing and
due diligence. Diaz v. Sec’y, Fla. Dep’t of Corr., 362 F.3d 698, 701 (11th Cir. 2004); see
also Holland v. Florida, 560 U.S. 631 (2010) (recognizing that a petitioner is entitled to
equitable tolling only if he shows that he has been pursuing his rights diligently and that
some extraordinary circumstance stood in his way to prevent timely filed). Alterma has
presented no viable argument to excuse his failure to timely pursue a § 2255 motion to
vacate, and his challenges to his federal sentence are, therefore, time-barred.
b.
Johnson does not apply to Alterma’s sentence
The crux of Alterma’s sole claim is that he no longer qualifies for an enhanced
4
Beckles and Welch were both decided after Alterma filed his § 2255 motion. However,
United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), was decided prior to Alterma
filing his § 2255 motion. In Matchett, the Eleventh Circuit expressly rejected the void for
vagueness doctrine to the residual clause contained in the career offender provisions of
the United States Sentencing Guidelines. Accordingly, this Court would have been
required to reject Alterma’s § 2255 motion as untimely, even had Beckles not been
decided in the interim.
-4-
sentence under the residual clause of the Sentencing Guidelines in light of the Johnson
decision (Doc. 1 at 4). Specifically, he argues that his prior Florida conviction for third
degree felony battery was found to be a crime of violence under the residual clause of
USSG § 4B1.2(a), which makes his guidelines sentence inapplicable under Johnson. Id.
In Johnson, the Supreme Court held that “imposing an increased sentence under the
residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of
due process[.]” 135 S. Ct. at 2563.
The ACCA provides enhanced penalties for
defendants who are: (1) convicted of being felons in possession of firearms, in violation
of 18 U.S.C. § 922(g); and (2) have “three prior convictions . . . for a violent felony or a
serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The residual clause of the ACCA
defines “violent felony” as, inter alia, a felony that “involves conduct that presents a
serious potential risk of physical injury to another.” Id. at § 924(e)(2)(B). In Johnson, the
Supreme Court found the “residual clause” so vague as to violate due process. Johnson,
135 S. Ct. at 2557.
The “crime of violence” definition contained within the Sentencing Guidelines’
career offender enhancement provision is virtually identical to the residual clause
language the Supreme Court found unconstitutional in Johnson. U.S.S.G. § 4B1.2(a)(2).
Despite this similarity, the Supreme Court held in Beckles that Johnson does not apply to
the residual clause of the Sentencing Guidelines. Specifically, the Court held that “the
advisory Sentencing Guidelines, including § 4B1.2(a)’s residual clause, are not subject to
a challenge under the void-for-vagueness doctrine.” Beckles, 137 S. Ct. at 896. The
Court reasoned that, unlike the ACCA, “[t]he advisory Guidelines . . . do not implicate the
twin concerns underlying vagueness doctrine—providing notice and preventing arbitrary
enforcement.” Beckles, 137 S. Ct. at 894. The Supreme Court further distinguished the
-5-
Sentencing Guidelines from the ACCA because the ACCA requires sentencing courts to
increase a defendant’s prison term from a statutory maximum of 10 years to a minimum
of 15 years, whereas the Sentencing Guidelines are only advisory. Id. at 892. Therefore,
although the Sentencing Guidelines’ residual clause and the ACCA’s residual clause are
identical, the Sentencing Guidelines are not subject to a void-for-vagueness challenge
under Johnson because the Guidelines “merely guide the district courts’ discretion[.]” Id.
at 894.
Under this reasoning, Beckles forecloses Alterma’s argument that he was
improperly sentenced as a career offender under the Sentencing Guidelines, and his
claim is denied on the merits.
c.
Alterma’s prior conviction for the sale of cocaine is a serious drug
offense
Perhaps recognizing the futility of his Johnson argument as it applies to his felony
battery charge, Alterma urges in his October 20, 2016 reply that his Florida conviction for
the sale of cocaine does not qualify as a serious drug offense under the career offender
provision of the Sentencing Guidelines (Doc. 10 at 4) (citing United States v. Hinkle, 832
F.3d 569 (5th Cir. 2016) and Mathis v. United States, 136 S. Ct. 2243 (2016)). This
argument fails for two reasons.
First, Mathis was decided on June 23, 2016—long after the conclusion of Alterma’s
direct appeal. The Eleventh Circuit has specifically held that Mathis did not announce a
new rule of constitutional law; rather it merely provided guidance to courts in interpreting
an existing criminal statute. In re Hernandez, 857 F.3d 1162, 1163 (11th Cir. 2017).
Accordingly, this claim, raised for the first time on October 20, 2016, is clearly time-barred.
See discussion supra.
Next, Hinkle, a Fifth Circuit Court of Appeals case, applied to the Texas statute
-6-
applicable to the delivery of herion. 823 F.3d at 571. Alterma was convicted of selling
cocaine in Florida under Florida Statute § 893.13. A defendant convicted of a violent
crime or a controlled substance offense is a career offender under § 4B1.1(a) if he “has
at least two prior felony convictions of either a crime of violence or a controlled substance
offense.” USSG § 4B1.1(a).
Nothing in Mathis or Hinkle suggests that the sale of
cocaine under Florida Statute § 893.13 is no longer a serious drug offense under § 4B1.2.
As such, Alterma was properly sentenced as a career offender under the guidelines.
See United States v. Hill, 652 F. App’x 835, 836 (11th Cir. 2016) (sale of cocaine qualifies
as career offender predicate controlled substance offense); United States v. Smith, 775
F.3d 1262 (11th Cir. 2014) (§ 893.13(1) is a “serious drug offense” under Section
924(e)(2)(A)); United States v. Johnson, 570 F. App’x 852 (11th Cir. 2014) (sale of
cocaine under Florida Statute § 893.13(1)(a) 1 is a “serious drug offense” for purposes of
ACCA).
Any of Alterma’s allegations not specifically addressed herein have been found to
be either time-barred or without merit.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Alterma’s motion to vacate, set aside, or correct an illegal sentence
pursuant to 28 U.S.C. § 2255 (Doc. 1) is DISMISSED as time-barred, or alternatively,
DENIED.
2.
The Clerk of the Court is directed to terminate any pending motions, enter
judgment accordingly, and close this case.
3.
The Clerk of the Court is further directed to file a copy of this Order in
criminal case number 2:13-cr-98-FtM-38CM and to terminate the motion to vacate, set
aside, or correct an illegal sentence pursuant to 28 U.S.C. § 2255 (Cr. 81) pending in that
-7-
case.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY IS 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 (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, the 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) 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).
Alterma has not made the requisite showing in these circumstances.
Because Alterma is not entitled to a certificate of appealability, he is not entitled to
proceed in forma pauperis on appeal.
DONE and ORDERED in Fort Myers, Florida on this 17th day of August, 2017.
SA: OrlP-4
Copies: Jermaine Alterma
Counsel of Record
-8-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?