Churchwell v. United States of America

Filing 16

OPINION AND ORDER granting 14 motion to dismiss; dismissing 1 Motion to vacate/set aside/correct sentence (2255) as untimely, not cognizable, and procedurally barred, or in the alternative denying on merits. The Clerk shall enter judgment a ccordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:03-cr-118-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 1/11/2018. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALPHONSO CHURCHWELL, JR.,
Petitioner,
v.

Case No: 2:16-cv-512-FtM-29CM
Case No. 2:03-CR-118-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.
#45) 1.

The government filed a Motion to Dismiss the Movant's 2255

Motion in Light of Beckles v. United States (Cv. Doc. #14) on May
15, 2017.

This motion seeks dismissal of the § 2255 motion on

various grounds and, alternatively, denial of the motion on the
merits.

Petitioner filed a Response (Cv. Doc. #15) on May 30,

2017, asserting that there was no proper basis to dismiss the §
2255 motion, but conceding that binding precedent was against his
substantive arguments.

1The

While some of the procedural issues may

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.”

be debatable, current Eleventh Circuit precedent forecloses the
relief petitioner requests.

Therefore, petitioner’s Motion Under

28 U.S.C. Section 2255 will be dismissed without prejudice, and
alternatively denied on the merits.
I.
On October 20, 2003, after petitioner signed a Waiver of
Indictment (Cr. Doc. #2), the United States Attorney filed an
Information (Cr. Doc. #1) charging petitioner with possession with
intent to distribute 5 grams or more of crack cocaine in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 18 U.S.C. § 2.
On October 27, 2003, pursuant to a Plea Agreement (Cr. Doc. #6),
petitioner pled guilty to Count One of the Information, which
carried a mandatory minimum of 5 years to a maximum of 40 years
imprisonment.

The

adjudicated guilty.

plea

was

accepted

and

petitioner

was

(Cr. Doc. #13.)

Petitioner was sentenced on March 1, 2004.

The November 1,

2002 version of the United States Sentencing Guidelines (USSG)
were applied to alleviate any ex post facto concerns. (Cr. Doc.
#38, p. 8, ¶ 3.)

Petitioner’s Base Offense Level was a 32 because

the offense involved at least 50 grams but less than 150 grams of
cocaine base, otherwise known as crack cocaine.
25.)

(Id., p. 12, ¶

Petitioner’s Total Offense Level, after an adjustment for

acceptance of responsibility, was a 29.

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(Id., p. 12, ¶ 33.)

Petitioner was found to be a career offender, as defined in United
States Sentencing Guidelines Manual (USSG) § 4B1.1 (2002), because
he was 26 years old when he committed the offense in this case,
the

offense

offense,

of

and

convictions

conviction

petitioner
for

either

substance offense.

was

then
a

a

felony

had

crime

at

of

controlled

least

violence

two
or

substance

prior
a

felony

controlled

The prior Florida felonies were: (1) the sale

or delivery of a controlled substance within 1000 feet of a school
in Lee County, Florida; (2) resisting an officer with violence in
Lee County, Florida; and (3) aggravated fleeing or attempting to
elude causing injury, or an aggravated assault on an officer in
Charlotte County, Florida (counted as a single offense for career
offender purposes).
After

the

(Id., p. 13, ¶ 34.)

career

offender

enhancement

petitioner’s Enhanced Offense Level was a 31.

was

applied,

(Id., p. 13, ¶37.)

As a career offender, petitioner was a Criminal History Category
VI (id., p. 21, ¶¶ 52, 53), and his resulting Sentencing Guideline
range was 188 to 235 months of imprisonment (id. p. 27, ¶ 78).
Petitioner asserts that had he not been a career offender, his
Sentencing Guidelines range would have been 151 to 188 months
imprisonment.

(Cv. Doc. #15, p. 2.)

Petitioner was sentenced to

a term of 188 months of imprisonment, followed by a term of
supervised release and the permanent denial of federal benefits.

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(Cr. Docs. ## 14, 15.)

A sentence within the Sentencing Guidelines

was mandatory because the sentence was imposed prior to United
States v. Booker, 543 U.S. 220 (2005).
Petitioner appealed his sentence, arguing that he was unaware
that he would be sentenced as a career offender, that his counsel
informed him that he would not be sentenced as a career offender,
and that the Court did not advise him that he was subject to the
enhancement as a career offender.

(Cr. Doc. #32, p. 3.)

Finding

the issue had not been raised before the district court and there
was no plain error, the Eleventh Circuit affirmed the sentence on
December 1, 2004.

United States v. Churchwell, 125 F. App'x 981

(11th Cir. 2004) (Table).

Petitioner did not seek a writ of

certiorari.
II.
On June 27, 2016, petitioner, through appointed counsel,
filed his habeas petition under Section 2255 raising one issue:
Mr. Churchwell was sentenced in 2004 pursuant
to the then-mandatory sentencing guidelines as
a career offender based, in part, on the
career offender crime-of-violence residual
clause. The career offender residual clause
and the ACCA residual clause are identically
worded.
Since the ACCA residual clause has
been deemed unconstitutionally vague, it
follows that the career offender residual
clause is also unconstitutionally vague. The
application of the career-offender residual
clause under the mandatory-guideline regime
required the district court to impose a higher

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sentence than it otherwise would have. Thus,
Mr. Churchwell was denied due process[.]
(Cv. Doc. #1, p. 4.)

Petitioner relies upon Johnson v. United

States, 135 S. Ct. 2551 (2015), which held that the residual clause
of the Armed Career Criminal Act (ACCA) was unconstitutionally
vague.

Johnson was made retroactive to cases on collateral review

by Welch v. United States, 136 S. Ct. 1257 (2016).
A. Timeliness of Motion
The United States argues that the §2255 motion, filed nearly
twelve

years

untimely.

after

petitioner’s

(Cv. Doc. #14, p. 3.)

conviction

became

final,

is

Petitioner responds that his

motion is timely under 28 U.S.C. § 2255(f)(3), which provides that
the one year statute of limitation period “shall run from the
latest of-- . . . (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. . . .”
2255(f)(3).

28 U.S.C. §

Petitioner asserts that his motion is timely because

it was filed within one year of Johnson.

(Cv. Doc. #15, pp. 3-

9.)
While the motion was filed within one year of Johnson, it
fails to satisfy the requirements of § 2255(f)(3).

The newly

recognized right created by Johnson was the unconstitutionality of
the residual clause of the ACCA.

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Nothing in petitioner’s case

relates to the residual clause of the ACCA.
is asserting is different.

The right petitioner

Petitioner asserts that the residual

clause in the career offender provision of the then-mandatory
Sentencing Guidelines is unconstitutional.

No Supreme Court case

has yet recognized such a right, nor made it retroactive.

The

only relevant case is Beckles v. United States, 137 S. Ct. 886
(2017), which held that the advisory Sentencing Guidelines are not
subject

to

a

Johnson

constitutional

challenge

for

vagueness.

While the parties dispute the impact of Beckles, it is clearly not
a decision which recognizes the right asserted by petitioner in
his motion, as petitioner concedes (“Beckles did not address the
issue of whether Johnson applied to those defendants, such as Mr.
Churchwell, who were sentenced under the mandatory sentencing
guidelines” (Cv. Doc. #15, p. 1); “Beckles left open the issue of
whether Johnson retroactively applies to the mandatory sentencing
guidelines” (id. at p. 4)).

Accordingly, the motion is untimely

and must be dismissed without prejudice.
B. Cognizability of Claim
The United States argues that petitioner’s claim is not
cognizable under § 2255.

(Cv. Doc. #14, pp. 7-10.)

The Court

agrees.
Although a prisoner “may challenge a sentencing error as a
‘fundamental defect’ on collateral review when he can prove that

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he is either actually innocent of his crime or that a prior
conviction used to enhance his sentence has been vacated,” a
challenge to petitioner’s status as a career offender under the
Sentencing Guidelines is not cognizable in a § 2255 motion unless
the sentence exceeds the statutory maximum.

Spencer v. United

States, 773 F.3d 1132, 1138 (11th Cir. 2014) (en banc) (explaining
that “erroneously designating a defendant as a career offender” is
not cognizable in a § 2255 motion because it is “not a fundamental
defect

that

justice”).

inherently

results

in

a

complete

miscarriage

of

See also Bell v. United States, 688 F. App’x 593, 594

(11th Cir. 2017).

The sentence in this case did not exceed the

statutory maximum, petitioner does not assert he is actually
innocent of the offense of conviction, and none of petitioner’s
prior

convictions

at

issue

have

been

vacated.

Therefore,

petitioner’s claim is not cognizable under § 2255, and the motion
must be dismissed without prejudice on this ground.
C. Procedural Default
The United States argues that the claim is procedurally
defaulted.

(Cv. Doc. #14, pp. 10-13.)

Again, the court agrees.

The Eleventh Circuit has recently summarized the procedural
default rules in the § 2255 context as follows:
To obtain collateral relief based on trial
errors that were not objected to at the trial
or raised on direct appeal, a defendant must
show both cause that excuses his double

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procedural
default
and
actual
prejudice
resulting from the errors of which he
complains. United States v. Frady, 456 U.S.
152,
167–68
(1982).
Alternatively,
a
defendant may obtain collateral relief despite
a procedural default by establishing a
fundamental miscarriage of justice. Mills v.
United States, 36 F.3d 1052, 1055 (11th Cir.
1994).
Cause for a procedural default exists if some
objective factor external to the defense
impeded counsel's efforts to comply with the
procedural rule. Reece v. United States, 119
F.3d 1462, 1465 (11th Cir. 1997). “[A] claim
that is so novel that its legal basis is not
reasonably available to counsel may constitute
cause for a procedural default.” Bousley v.
United States, 523 U.S. 614, 622 (1998)
(quotation omitted). “However, the question is
not whether subsequent legal developments have
made counsel's task easier, but whether at the
time of the default the claim was available at
all.” McCoy v. United States, 266 F.3d 1245,
1258 (11th Cir. 2001) (quotation omitted).
To establish a fundamental miscarriage of
justice, a defendant must “show that a
constitutional
violation
has
probably
resulted in the conviction of one who is
actually innocent.” Schlup v. Delo, 513 U.S.
298, 327 (1995) (quotation omitted). The
defendant must show that it is more likely
than not that no reasonable juror would have
convicted him in light of new evidence. Id.
To be credible, a claim of actual innocence
must be based on new, reliable evidence that
was not presented at the trial. Id. at 316,
324 (stating that, “[w]ithout any new evidence
of innocence, even the existence of a
concededly
meritorious
constitutional
violation is not in itself sufficient to
establish a miscarriage of justice”).

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McDuffie v. United States, 16-14147-D, 2017 WL 6606916, at *5 (11th
Cir. Oct. 31, 2017).
Petitioner asserts he can show cause and prejudice, which
defeats any procedural default.

(Cv. Doc. #15, pp. 9-10.)

As

cause, petitioner asserts that the legal basis for the claim was
not reasonably available at the time of the direct appeal.
prejudice,

petitioner

states

that

there

is

a

As

reasonable

probability that the result of the sentencing proceedings would
have been different.
The

Court

defaulted.

finds

that

Petitioner

petitioner’s

failed

to

claim

challenge

is

procedurally

the

predicate

convictions supporting his career offender status at the trial
court, or on direct appeal.

The challenge petitioner attempts to

raise here was available at the time of the direct appeal, and
needed no further factual development.

While the claim may have

been difficult to prevail upon, it was not so novel as to be
unavailable under Reed v. Ross, 468 U.S. 1, 12 (1984) (“the novelty
of a constitutional issue” can give rise to cause for failure to
raise the issue).

The Court accepts that a potential increase in

a sentence of imprisonment can constitute prejudice.
United States, 531 U.S. 198 (2001).

Glover v.

The Court concludes that

petitioner has not shown cause for failing to raise the issue on
direct appeal, and petitioner has not asserted actual innocence.

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D. Merits
Even if the claim is timely, cognizable, and not procedurally
defaulted, it is alternatively precluded by current Eleventh
Circuit law.
(1)

Application
Guidelines

of

Johnson

to

the

Mandatory

Sentencing

In Beckles, the United States Supreme Court held that Johnson
did not apply to the advisory Sentencing Guidelines.
S. Ct. at 894 (2017).

Beckles, 137

The Eleventh Circuit has held that Johnson

also does not apply to the mandatory guidelines.
823 F.3d 1350 (11th Cir. 2016).

In re Griffin,

Other panels of the Eleventh

Circuit have, of course, followed that decision.

Prosser v.

United States, No. 16-16013-E, 2017 WL 4678152, at *2 (11th Cir.
Apr. 26, 2017); In re Sams, 830 F.3d 1234, 1240 (11th Cir. 2016);
In re Sapp, 827 F.3d 1334, 1336 (11th Cir. 2016); In re Williams,
826 F.3d 1351, 1355 (11th Cir. 2016).

None of these cases have

been overruled by the Supreme Court.
(2)

Alternative
Guidelines

Application

of

Johnson

To

Mandatory

If the § 2255 motion is timely, cognizable, not procedurally
defaulted, and Johnson applies to the mandatory pre-Booker version
of the Sentencing Guidelines, the Court finds no basis to grant

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relief under current Eleventh Circuit precedent.

Therefore, the

§ 2255 motion will be denied alternatively on the merits.
“A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed the
instant

offense

of

conviction;

(2)

the

instant

offense

of

conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at least
two prior felony convictions of either a crime of violence or a
controlled substance offense.”
§ 4B1.1(a) (2002).

U.S. Sentencing Guidelines Manual

The term “crime of violence”:

means any offense under federal or state law,
punishable
by
imprisonment
for
a
term
exceeding one year, that-(1) has as an element the use, attempted use,
or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson,
extortion, involves use of explosives,
otherwise involves conduct that presents
serious potential risk of physical injury
another.
U.S.

Sentencing

Guidelines

Manual

§

4B1.2(a)

or
or
a
to

(2002). 1

Under

Application Note 1, murder, manslaughter, kidnapping, aggravated

1 Under the current November 1, 2017 guidelines, subsection
(2)
states:
“murder,
voluntary
manslaughter,
kidnapping,
aggravated assault, a forcible sex offense, robbery, arson,
extortion, or the use or unlawful possession of a firearm described
in 26 U.S.C. § 5845(a) or explosive material as defined in 18
U.S.C. § 841(c).” United States Sentencing Guidelines Manual §

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assault,

forcible

sex

offenses,

robbery,

arson,

extortion,

extortionate extension of credit, and burglary of a dwelling were
also included in the definition of “crime of violence.”

U.S.

Sentencing Guidelines Manual § 4B1.2(a) cmt. n.1 (2002).
Petitioner was found to be a career offender, within the
meaning of USSG § 4B1.1, because he was 26 years old when he
committed the offense in this case, the offense of conviction is
a felony controlled substance offense, and petitioner had at least
two prior felony convictions of either a crime of violence or a
controlled substance offense at the time of the instant offense.
The prior felonies were: (1) the sale or delivery of a controlled
substance within 1000 feet of a school in Lee County, Florida; (2)
resisting an officer with violence in Lee County, Florida; and (3)
aggravated fleeing or attempting to elude causing injury, or
alternatively (4) an aggravated assault on an officer in Charlotte
County, Florida.

(Cr. Doc. #38, p. 13, ¶ 34.)

Petitioner does not challenge the prior drug conviction, but
challenges

the

other

convictions.

Thus,

only

one

of

these

challenged offenses needs qualify as a crime of violence to support
the career offender enhancement.

4B1.2(2) (2017).

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(a)

Resisting an Officer With Violence

The Eleventh Circuit has found that the Florida offense of
resisting

an

officer

with

violence

categorically

includes

an

element of violence in the offense, and therefore qualifies as a
violent felony under the elements clause of the ACCA.
States v. Hill, 799 F.3d 1318, 1322 (11th Cir. 2015).

United

This applies

equally to the identically worded elements clause under the career
offender guidelines.
(11th Cir. 2016).

United States v. Fritts, 841 F.3d 937, 940

Since there is no need to resort to the residual

clause, there can be no Johnson violation.
(b)

Aggravated Fleeing and Attempted Eluding Causing Injury

The Eleventh Circuit has also determined that the Florida
felony fleeing and attempted eluding statute continues to be a
crime of violence.
Cir. 2017).

United States v. Martin, 864 F.3d 1281 (11th

Since there is no need to resort to the residual

clause, there can be no Johnson violation.
(c)

Aggravated Assault

The

Florida

aggravated

assault

conviction

categorically

includes an act of violence and qualifies as a crime of violence
under the elements clause.

Turner v. Warden Coleman FCI (Medium),

709 F.3d 1328, 1338 (11th Cir. 2013); Dixon v. United States, 588
F.3d 918 (11th Cir. 2014).

The Eleventh Circuit has stated that

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Turner remains binding precedent, even after Descamps 2 and Mathis 3,
therefore

aggravated

assault

qualifies

as

crime

of

violence.

United States v. Golden, 854 F.3d 1256 (11th Cri. 2017); United
States v. Kelly, 697 F. App'x 669, 670 (11th Cir. 2017).
As the career offender enhancement was supported by at least
two qualifying felonies, the motion is denied.
Accordingly, it is hereby
ORDERED:
The Government’s Motion to Dismiss the Movant's 2255 Motion
in Light of Beckles v. United States (Doc. #14) is GRANTED and the
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. #45) is DISMISSED as untimely, not cognizable, and
procedurally barred; or in the alternative, DENIED on the merits.
2.

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

2 Descamps v. United States, 570 U.S. 254 (2013).
3 Mathis v. United States, 136 S. Ct. 2243 (2016).

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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.”

28 U.S.C. § 2253(c)(B)(2).

To make such

a showing, 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)(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
of January, 2018.

Copies:
Counsel of record
AUSA

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11th

day