Allen v. United States of America

Filing 4

OPINION AND ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255) for lack of jurisdiction. The Clerk shall enter judgment accordingly, place a copy of the Judgment in the criminal file (Case No. 2:03-cr-74-FTM29 ), and close this case. A certificate of appealability and leave to proceed in forma pauperis is denied. Signed by Judge John E. Steele on 2/15/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GARY LIVINGSTON ALLEN,
Petitioner,
v.

Case No: 2:17-cv-93-FtM-29MRM
Case No. 2:03-CR-74-FTM-29

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on review of petitioner’s
Motion and Memorandum of Law in Support of Requested Relief Under
Title 28 U.S.C. § 2255(f)(4) in Light of Clarke v. [United]
State[s], 184 So. 3d 1107 (Fla. 2016) (Cv. Doc. #1; Cr. Doc. #273) 1
filed on February 10, 2017.

The Court notes that a Motion for

Reconsideration Pursuant to Rule 59(e) of the Federal Rules of
Civil

Procedure,

filed

on

July

8,

2016,

petitioner’s previously filed § 2255 case.

remains

pending

in

(2:07-cv-574-FTM-

29DNF, Cv. Doc. #35.)

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.” hereinafter.

I.
On June 25, 2003, a federal grand jury in Fort Myers, Florida
returned

a

twelve-count

Indictment

(Cr.

Doc.

#39)

charging

petitioner and others with conspiracy to possess with intent to
distribute 5 kilograms or more of a detectable amount of cocaine,
and several substantive counts.

Petitioner was specifically also

charged in Count Four with knowingly carrying a firearm during and
in

relation

to

a

drug

trafficking

crime,

and

with

knowingly

possessing a firearm in furtherance of the drug trafficking crime
alleged in Count One; in Count Eight with being a convicted felon
in possession of a firearm 1; and in Count Nine with being an alien
illegally and unlawfully in the United States in possession of a
firearm.

After a trial, the jury returned a verdict of guilty on

all charged counts.

(Cr. Doc. #115.)

On February 10, 2004, the Court sentenced petitioner to a
term of life as to Count One, concurrent terms of 120 months of
imprisonment each as to Counts Eight and Nine, and as to Count
Four, a term of 5 years to be served consecutively to the terms
imposed on Counts One, Eight, and Nine followed by a term of

Count Eight was based on the following felony convictions: (1)
aggravated assault in violation of Fla. Stat. § 784.021; (2)
possession of cannabis with intent to deliver or sell in violation
of Fla. Stat. § 893.031; and (3) possession of cannabis for the
purpose of sale, deliver, or manufacturing in violation of Fla.
Stat. § 893.13. (Cr. Doc. #39, pp. 5-6.)
1

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supervised release.

(Cr. Doc. #157.)

was issued on February 10, 2004.

Judgment (Cr. Doc. #159)

Petitioner filed a Notice of

Appeal (Cr. Doc. #166), and on April 28, 2006, the Eleventh Circuit
affirmed the conviction and sentence.

(Cr. Doc. #217.)

On September 10, 2007, petitioner filed a Motion Under 28
U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody (Cr. Doc. #227) arguing ineffective
assistance of counsel.

(See 2:07-cv-574-FTM-29DNF.)

On October

14, 2008, the undersigned issued an Opinion and Order (Cr. Doc.
#235) denying all claims presented in the 2255 petition on the
merits. 2

Petitioner filed an untimely appeal, which was dismissed

for lack of jurisdiction.

(2:07-cv-574-FTM-29DNF, Cv. Doc. #28.)

On June 16, 2016, the Court also issued an Opinion and Order
in

this

previous

2255

case

denying

petitioner’s

Request

for

Correction of the Manifest Injustice and Clear Error finding that
Fed. R. Civ. P. 60(b) was not available to petitioner to attack
the decision on the merits without leave to file a successive
petition, and in the alternative, that nothing in Clarke 3 suggested
that the law had changed regarding 21 U.S.C. § 841.

(2:07-cv-574-

On September 9, 2010, the Court also denied a reduction of
petitioner’s sentence under Amendments 591 and 599.
(Cr. Doc.
#240.)
2

3

Clarke v. United States, 184 So. 3d 1107 (Fla. 2016).

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FTM-29DNF, Cv. Doc. #34.)

Petitioner has filed a motion to

reconsider this Opinion and Order, which remains pending.
On July 6, 2016, the Eleventh Circuit denied petitioner’s
Application for Leave to File a Second or Successive Motion to
Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h) based
on Johnson v. United States, 576 U.S.

, 135 S. Ct. 2551 (2015)

because Johnson “had no impact on the applicability of 21 U.S.C.
§ 851; however, even if it did, Allen’s contention that his
conviction in which adjudication was withheld does not support a
§ 851 enhancement is contrary to our prior holdings.

See United

States v. Smith, 96 F.3d 1350, 1351 (11th Cir. 1996) (explaining
that a prior plea of nolo contendere with adjudication withheld in
Florida state court is a “conviction” that supports an enhanced
sentence under federal narcotics law).”

(Cr. Doc. #269, pp. 5-

6.)
II.
Petitioner is now seeking relief in a second 2255 based on
the decision in Clarke v. United States, 184 So. 3d 1107 (Fla.
2016), which answered a certified question from the Eleventh
Circuit that a guilty plea for a felony where adjudication was
withheld does not qualify as a conviction under Fla. Stat. 790.23. 4

The Court notes that petitioner was not convicted under this
particular statute, see supra n.1.
4

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Petitioner filed the motion pursuant to § 2255(f)(4) arguing it is
timely filed within one year of “the date on which the facts
supporting the claim or claims presented could have been discovered
through the exercise of due diligence.”
To file a second or successive Motion under Section 2255,
petitioner must obtain certification from the Eleventh Circuit
Court of Appeals.

28 U.S.C. § 2255(h) 5; Gilbert v. United States,

640 F.3d 1293, 1308 (11th Cir. 2011).

Petitioner has not indicated

that such certification was received, and in fact the record
reflects that leave to file a successive petition was denied.

In

the absence of an order authorizing the undersigned to consider a
second or successive motion, the current Motion must be dismissed
for lack of jurisdiction.

Farris v. United States, 333 F.3d 1211,

Section 2255(h) provides that a second or successive motion
must be certified to contain:
5

(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and
convincing
evidence
that
no
reasonable
factfinder would have found the movant guilty
of the offense; or
(2) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255(h).

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1216 (11th Cir. 2003); El-Amin v. United States, 172 F. App’x 942,
946 (11th Cir. 2006).
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. #273) is DISMISSED for lack of
jurisdiction.
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 and internal quotation marks 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 February, 2017.

Copies:
Petitioner
AUSA

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15th

day