Gilchrist v. United States of America

Filing 15

OPINION AND ORDER granting 14 Motion to Withdraw as Counsel and the Federal Public Defender's Office is relieved of further responsibility in this case; dismissing 1 Motion to vacate/set aside/correct sentence (2255) as untimely, or in t he alternative denying because petitioner is not entitled to relief. The Clerk shall terminate the FPD as counsel of record, enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:03-cr-70-FTM-29MRM), 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 5/3/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
IMMANUEL T. GILCHRIST,
Petitioner,
v.

Case No: 2:16-cv-480-FtM-29MRM
Case No. 2:03-CR-70-FTM-29MRM

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.
#60) 1 filed on June 17, 2016, by appointed counsel pursuant to
Johnson v. United States, 135 S. Ct. 2551 (2015) and Welch v.
United States, 136 S. Ct. 1257 (2016).

(Cr. Doc. #59.)

On July

20, 2016, the Court stayed the case pending review by the United
States Supreme Court in a case having direct impact on petitioner’s
ability to obtain relief.

(Cv. Doc. #8.)

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

1The

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.”

that the Sentencing Guidelines are not subject to a constitutional
challenge

for

petitioner.

vagueness

possibly

foreclosing

relief

for

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.

(Cv.

Doc. #11.)
I.
On May 1, 2017, the Federal Public Defender’s Office filed an
Unopposed Motion to Withdraw as Counsel (Cv. Doc. #14) seeking to
withdraw from further representation.

Counsel notified petitioner

by certified mail, received acknowledgement that petitioner signed
for the letter, however petitioner has not indicated how he would
like to proceed.
proceed pro se.

Counsel asks that petitioner be permitted to
The Court will allow the Federal Public Defender

to withdraw as counsel of record.
On June 11, 2003, a federal grand jury in Fort Myers, Florida
returned a one-count Indictment (Cr. Doc. #7) charging petitioner
with possession with intent to distribute 5 grams or more of crack
cocaine.

Petitioner entered a plea of guilty pursuant to a Plea

Agreement (Cr. Doc. #20), which was accepted, and petitioner was
adjudicated guilty.

(Cr. Doc. #24.)

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On December 16, 2003, the

Court sentenced petitioner as a career offender 1 to a term of
imprisonment of 188 months, to be followed by a term of supervised
release.

(Cr. Doc. #29.)

December 16, 2003.

Judgment (Cr. Doc. #30) was filed on

Petitioner did not appeal to the Eleventh

Circuit and the conviction became final 14 days after the December
16, 2003 Judgment.

See Mederos v. United States, 218 F.3d 1252,

1253 (11th Cir. 2000).

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

Petitioner qualified as a career offender because he was
convicted of a felony controlled substance offense, he was 30 when
the offenses were committed, and petitioner had at least 2 prior
felony convictions of either a crime of violence or a controlled
substance offense.
See U.S. Sentencing Guidelines Manual §
4B1.1(b)(B). (Cr. Doc. #50, p. 8, ¶ 21.)
1

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discovered
diligence.

through

28 U.S.C. § 2255(f).
Section 2255(f)(3).

the

exercise

of

due

Petitioner filed his motion pursuant to
However, it is clear from a review of the

underlying criminal docket that petitioner was not sentenced under
the Armed Career Criminal Act, and therefore Johnson and Beckles
do not apply to extend the statutory time limitation of one year
from the date petitioner’s conviction became final.

Therefore,

the motion will be dismissed as untimely.
Counsel argues that Beckles may not have foreclosed relief
for petitioner, however because petitioner’s motion was based on
Johnson, which does not entitle petitioner to relief, the motion
must be denied.
his

term

of

The Court notes that petitioner was released from

imprisonment

on

or

about

April

7,

2017. 2

Any

eligibility for a reduction in the term of imprisonment is now
moot.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The

Federal

Public

Defender’s

Unopposed

Motion

Withdraw as Counsel (Cv. Doc. #14) is GRANTED.

to
The

Federal Public Defender's Office is relieved of further
responsibility in this case, without prejudice, and no

2 See Bureau of Prisons inmate locator:

https://www.bop.gov/inmateloc/.

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further

action

appointment.

will

be

taken

with

regard

to

the

The Clerk shall terminate the Federal

Public Defender’s Office as counsel of record.
2.

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. #60) is DISMISSED
as untimely, or in the alternative, is DENIED because he
is not entitled to relief under Johnson and Welch.

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

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

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(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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3rd

day of