Hayes v. USA

Filing 11

OPINION AND ORDER 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. 2:08-cr-155-FTM29SPC), 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 5/12/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
COREY HAYES,
Petitioner,
v.

Case No: 2:16-cv-532-FtM-29CM
Case No. 2:08-CR-155-FTM-29SPC

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 filed on July 1, 2016.

The government filed a Response (Cv.

Doc. #9) on September 6, 2016.
I.
On October 8, 2008, a federal grand jury in Fort Myers,
Florida returned a one-count Indictment (Cr. Doc. #1) charging
petitioner with possession with intent to distribute 100 grams or
more of heroin.

On January 6, 2009, petitioner appeared before

the Magistrate Judge and entered a plea of guilty as to Count One,

1The

Court will make references to the dockets in the instant
action and in the related criminal case throughout this opinion.
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.”

pursuant to a Plea Agreement (Cr. Doc. #18).

(Cr. Doc. #22.)

plea was accepted and petitioner was adjudicated guilty.
Doc. #24.)

The
(Cr.

On January 21, 2009, the government and counsel for

petitioner filed a Notice of Parties Recommended Sentence Pursuant
to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure
(Cr. Doc. #25).

On January 30, 2009, the Court entered an Order

(Cr.

rejecting

Doc.

#26)

the

portion

of

the

Plea

Agreement

providing for an agreed-upon sentence and allowing petitioner the
opportunity to withdraw his plea of guilty.

On February 4, 2009,

petitioner filed a Notice of Intent to Maintain Plea of Guilty
(Cr. Doc. #28).
On April 13, 2009, the Court sentenced petitioner to a term
of imprisonment of 188 months, followed by a term of supervised
release.

(Cr. Doc. #31.)

April 16, 2009.

Judgment (Cr. Doc. #32) was filed on

On June 11, 2014, petitioner filed a pro se Notice

of Appeal (Cr. Doc. #36), however the appeal was dismissed for
failure to prosecute on August 1, 2014 (Cr. Doc. #38).
Subsequently, on December 10, 2014, petitioner sought the
retroactive application of Amendment 782 of the United Sentencing
Guidelines to his sentence pursuant to 18 U.S.C. § 3582(c)(2), and
the Court appointed counsel to review petitioner’s eligibility.
(Cr. Docs. ## 39, 40.)

On April 7, 2016, after notice of a

determination that a motion would not be filed on behalf of
petitioner because he was sentenced as a career offender and not

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based on the drug quantity table in U.S. Sentencing Guidelines
Manual § 2D1.1(c), the Court relieved the Federal Public Defender
as counsel of record.
Court

denied

(Cr. Doc. #44.)

petitioner’s

pro

se

On August 11, 2016, the

motion

for

Amendment 782 finding that he was not eligible.

application

of

(Cr. Doc. #48.)

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
discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f).
the

appeal

on

In this case, the Eleventh Circuit dismissed

August

certiorari review.

1,

2014,

and

petitioner

did

not

seek

Under Section 2255(f)(1), petitioner had one

year from his conviction becoming final, or until on or before
November 2, 2015, to file his § 2255 motion.

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28 U.S.C. § 2255(f);

Kaufmann v. United States, 282 F.3d 1336, 1338 (11th Cir. 2002) (a
petitioner “gets the benefit of up to 90 days between the entry of
judgment on direct appeal and the expiration of the certiorari
period.”).

Giving petitioner the benefit of the mailbox rule 1,

his motion under § 2255 was signed and executed for filing on June
25, 2016.

Since this date is more than 6 months after the November

2, 2015 deadline, the motion is due to be dismissed as untimely.
Petitioner raises only one ground in his § 2255 motion, and
has filed it pursuant to Section 2255(f)(3) based on the decision
in Johnson v. United States, 135 S. Ct. 2551 (2015), 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.

If Johnson applies to reduce

petitioner’s sentence, and the motion is not a successive petition,
petitioner’s motion would be timely filed by the deadline of June
26, 2016.

In re Robinson, 822 F.3d 1196, 1198 (11th Cir. 2016)

(Martin, J., concurring).
III.
Petitioner’s Base Offense Level was a 26 based on the quantity
of heroin involved, but petitioner’s sentence was enhanced under

“[A] prisoner's pro se § 2255 motion is deemed filed the date it
is delivered to prison authorities for mailing.” Washington v.
United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (citation
omitted).
1

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the

career

offender

Manual § 4B1.1.

provisions

of

U.S.

Sentencing

Guidelines

Petitioner was 34 when he committed the instant

offense, it involves a controlled substance, and petitioner had at
least two prior felony convictions of either a crime of violence
or a controlled substance. 2

After an adjustment for acceptance of

responsibility, and applying the higher career offender offense
level, the resulting Enhanced Offense Level was a 31.

As a

Criminal History Category VI, the applicable guideline range was
188

months

to

235

months.

After

consideration

the

advisory

recommendations of the U.S. Sentencing Guidelines, and all the
factors identified in 18 U.S.C. § 3553(a)(1)-(7), the Court found
that a sentence at the low end of the guideline range of 188 months
of imprisonment was sufficient, but not greater than necessary, to
comply with the purposes set forth in 18 U.S.C. § 3553(a).
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 the constitutional challenge for vagueness raised in
Johnson.

Since petitioner’s sentence was enhanced under the

Specifically, petitioner’s priors included: (1) two counts of
attempted second degree murder, and shooting or throwing a deadly
missile into a building or vehicle in Dade County; (2) possession
with intent to sell or deliver cocaine, and possession with intent
to sell or deliver cannabis in Dade County; and (3) three counts
of possession of heroin with intent to sell, manufacture or deliver
within 1,000 feet of a school in Dade County. (Cr. Doc. #41, p.
12, ¶ 24.)
2

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Sentencing Guidelines and 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 time-barred under Section 2255(f)(3).
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. #45) is DISMISSED as time-barred.
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

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
(2004), or that “the issues presented were adequate to deserve

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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 May, 2017.

Copies:
Petitioner
AUSA

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