Henning v. United States of America

Filing 13

OPINION AND ORDER granting 12 motion to dismiss; dismissing 1 Motion to vacate/set aside/correct sentence (2255) as time-barred. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:12-cr-14-FTM-29CM), 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 5/8/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JASON ALLEN HENNING,
Petitioner,
v.

Case No: 2:16-cv-508-FtM-29CM
Case No. 2:12-CR-14-FTM-29CM

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.
#56) 1 filed on June 27, 2016, arguing that his guilty plea and
sentence are unconstitutional under Johnson v. United States, 135
S. Ct. 2551 (2015).

Petitioner also filed a motion seeking leave

to file a memorandum in support, Cv. Doc. #2, which was granted,
and petitioner was provided 30 days to file the memorandum.
Court also directed the government to file a response.
#6.)

The

(Cv. Doc.

Petitioner sought another extension of time, Cv. Doc. #10,

which was also granted and petitioner was provided an additional
45 days to file the memorandum.

1The

(Cv. Doc. #11.)

Petitioner did

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.”

not file a memorandum in support, and on August 30, 2016, the
government filed a Motion to Dismiss Motion as Untimely (Cv. Doc.
#12).

Petitioner did not file a response to the motion to dismiss.
I.

On February 15, 2012, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #3) charging
petitioner with possession of child pornography in violation of 18
U.S.C.

§

2252(a)(4)(B)

and

§

2252(b)(2)

(Count

One),

and

distribution of child pornography in violation of 18 U.S.C. §
2252(a)(2) and § 2252(b)(1) (Count Two).

On August 6, 2012,

petitioner entered a plea of guilty to the distribution count
pursuant to a Plea Agreement (Cr. Doc. #26).

(Cr. Doc. #30.)

The

plea was accepted and petitioner was adjudicated guilty of Count
Two of the Indictment.
In

advance

of

(Cr. Doc. #32.)
sentencing,

counsel

filed

a

Sentencing

Memorandum (Cr. Doc. #42) seeking a variance on petitioner’s
behalf, and the government filed a Motion for Downward Departure
of Defendant’s Sentence Based Upon Substantial Assistance (Cr.
Doc. #43).
downward

The Court granted the government’s motion for a

departure

by

two

levels

bringing

petitioner’s

total

offense level down to 35, and petitioner had a criminal history
category

of

I.

(Cr.

Doc.

#46;

Cr.

Doc.

#50,

p.

10.)

At

sentencing, counsel asked the Court to consider a downward variance
to 60 months.

(Cr. Doc. #50, p. 13.)

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After hearing from the

government, the Court granted the request in part.
p. 29.)

(Cr. Doc. #50,

On March 4, 2013, the Court sentenced petitioner to a

term of imprisonment of 120 months, a term below the applicable
guideline range of 168 to 210 months of imprisonment based on the
number of images, followed by a term of supervised release for
life.

(Cr. Doc. #44; Cr. Doc. #50, p. 10.)

Judgment
Petitioner

did

(Cr.
not

Doc.

#47)

appeal

was

to

filed

on

the

Eleventh

March
Circuit,

5,

2013.

and

the

conviction became final 14 days after the Judgment on March 19,
2013.

See Mederos v. United States, 218 F.3d 1252, 1253 (11th

Cir. 2000).
II.
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

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discovered
diligence.
28 U.S.C. § 2255(f).

through

the

exercise

of

due

Petitioner would have had until March 19,

2014 under Section 2255(f)(1) to file his Motion, which was not
filed until June 27, 2016.

Therefore, petitioner’s motion is

time-barred and will be dismissed.
Petitioner seeks to file his motion pursuant to Section
2255(f)(3) based on the decision in Johnson, and its retroactive
application by Welch v. United States, 136 S. Ct. 1257 (2016) to
collateral review.

In Johnson, the United States Supreme Court

held that the Armed Career Criminal Act’s residual clause is
unconstitutionally vague.

Since petitioner’s sentence was not

enhanced under the ACCA, Johnson does not apply to extend the
statutory time limitation of one year from the date petitioner’s
conviction became final, and petitioner’s motion is also timebarred under Section 2255(f)(3).
To the extent that petitioner seeks to extend the Johnson
holding to 18 U.S.C. § 2252(a)(2), the Court finds that the holding
in Johnson has not been extended beyond the ACCA’s residual clause,
and furthermore petitioner was not sentenced to any statutory
enhancement.

Petitioner entered a plea of guilty to distribution

of material involving the sexual exploitation of minors under
Section 2252(a)(2), which provides that any person:
knowingly receives, or distributes, any visual
depiction using any means or facility of

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interstate or foreign commerce or that has
been
mailed,
or
has
been
shipped
or
transported in or affecting interstate or
foreign commerce, or which contains materials
which have been mailed or so shipped or
transported, by any means including by
computer, or knowingly reproduces any visual
depiction for distribution using any means or
facility of interstate or foreign commerce or
in or affecting interstate or foreign commerce
or through the mails, if-(A) the producing of such visual depiction
involves the use of a minor engaging in
sexually explicit conduct; and
(B) such visual depiction is of such conduct
18 U.S.C. § 2252(a)(2).
minimum

mandatory

5

Count Two is subject to a statutory

years,

18

U.S.C.

§

2252(b)(1)

1

,

and

petitioner’s lack of any criminal history meant that he was not
subject

to

the

enhancement

minimum

mandatory

15

years.

2

Petitioner’s 120 month sentence was above the statutory minimum of
60 months, but below the applicable guideline range sentence of
168 to 210 months.

Since the U.S. Sentencing Guidelines are not

subject to a vagueness challenge under the Due Process Clause, see

The Court has “no discretion to depart downward from the relevant
statutory mandatory minimum sentences” imposed by Congress.
United States v. Simpson, 228 F.3d 1294, 1303 (11th Cir. 2000).
1

If petitioner had a prior conviction “relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct involving a
minor or ward, or the production, possession, receipt, mailing,
sale,
distribution,
shipment,
or
transportation
of
child
pornography, or sex trafficking of children,” petitioner’s
sentence would have been subject to a minimum mandatory 15 years.
Id. However, petitioner was not subject to this enhancement.
2

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Beckles v. United States, 137 S. Ct. 886 (2017), the motion will
be denied.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. The government’s Motion to Dismiss Motion as Untimely (Cv.
Doc. #12) is GRANTED.
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. #56) is DISMISSED as timebarred.
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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8th

day of