Flores v. United States of America
Filing
9
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-108-FTM-29SPC), 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 8/31/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSE EMIGDIO FLORES,
Petitioner,
v.
Case No: 2:17-cv-112-FtM-29CM
Case No. 2:08-CR-108-FTM-29SPC
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on review of 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.
#259) 1 and Memorandum of Law in Support of § 2255 Motion (Cv. Doc.
#2), both filed on February 21, 2017.
The government filed a
Response in Opposition (Doc. #8) on May 1, 2017.
Petitioner
presents only one ground for relief arguing for the retroactive
application of Amendment 794 of the United States Sentencing
Guidelines.
I.
On July 30, 2008, a federal grand jury in Fort Myers, Florida
returned
1The
a
three-count
Indictment
(Cr.
Doc.
#1)
charging
Court will make references 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.”
petitioner and others with conspiracy to possess with intent to
distribute more than 500 grams of methamphetamine, and possession
with intent to distribute more than 500 grams of methamphetamine.
Defendant was further individually charged with knowingly carrying
a firearm during and in relation to a drug trafficking crime, and
in furtherance of the drug trafficking crime of conspiracy to
possess and possession with intent to distribute more than 500
grams of methamphetamine.
On April 20, 2009, defendant entered a
plea of guilty as to Counts Two and Three of the Indictment.
#153.)
The plea was accepted on the next day.
(Doc.
(Doc. #156.)
On
July 20, 2009, Count One was dismissed upon motion of the United
States,
and
the
Court
sentenced
petitioner
to
a
term
of
imprisonment of 135 months of imprisonment as to Count Two, and a
term of 60 months of imprisonment as to Count Three, to be served
consecutively to Count Two, followed by a term of supervised
release.
(Cr. Doc. #191.)
July 20, 2009.
Judgment (Cr. Doc. #192) was filed on
Petitioner filed a Notice of Appeal (Cr. Doc.
#196), and the Eleventh Circuit affirmed the convictions on May
28, 2010.
United States v. Flores, 380 F. App'x 921 (11th Cir.
2010).
On November 14, 2016, the Court denied a motion for the
retroactive application of Amendment 782 to the United States
Sentencing Guidelines finding petitioner’s sentence would remain
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unchanged.
(Cr. Doc. #257.)
Petitioner filed his motion under §
2255 on February 21, 2017.
II.
Federal prisoners whose convictions became final after April
24, 1996, the effective date of The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 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).
petitioner’s
In this case, the Eleventh Circuit affirmed
convictions
on
May
28,
2010.
Whether
or
not
petitioner files a petition for certiorari, he “gets the benefit
of up to 90 days between the entry of judgment on direct appeal
and the expiration of the certiorari period.”
States,
282
F.3d
1336,
1338
(11th
Cir.
Kaufmann v. United
2002).
Therefore,
petitioner’s convictions became final ninety days after they were
- 3 -
affirmed, and petitioner had through August 29, 2011, to file his
federal habeas petition.
Giving petitioner the benefit of the
mailbox rule 1, the motion under § 2255 was signed and executed on
February 17, 2017.
As a result, the motion is untimely from the
date petitioner’s conviction became final, 28 U.S.C. § 2255(f)(1)
and is due to be dismissed as time-barred.
The Court will also
consider whether a later date may apply under § 2255(f).
Petitioner argues that his motion is timely under § 2255(f)(4)
because
it
available.
was
filed
within
one
year
(Cv. Doc. #1, p. 10, ¶ 18.)
of
when
facts
became
Petitioner does not
further expand on what facts were unavailable, or whether the facts
were “discovered through the exercise of due diligence.”
U.S.C. § 2255(f)(4).
Therefore, this argument is rejected.
28
The
other two bases, subsections (2) and (3) have no applicability in
this case.
Petitioner was not prevented from filing his petition
by an impediment of the government 2, and petitioner seeks the
retroactive application of a Sentencing Guidelines amendment not
a right newly recognized by the Supreme Court.
The Court finds
“[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
In fact, petitioner was permitted to enter a conditional plea of
guilty, “with the consent of the Court, reserving the right to
appeal the adverse order” that denied his motion to suppress.
(Cr. Doc. #151, ¶ 1.)
2
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no alternative date for the limitation to run from, and therefore
petitioner’s petition is time-barred.
III.
Petitioner argues that the retroactive application of U.S.
Sentencing
Guidelines
Manual
supp.
app.
C,
Amend.
794
would
decrease his sentence by up to 4 levels pursuant to U.S. Sentencing
Guidelines
Manual
§
3B1.2
cmt.
n.3(A).
Amendment
794
is
a
clarifying amendment that clarifies the factors considered for a
minor-role adjustment.
United States v. Cruickshank, 837 F.3d
1182, 1194 (11th Cir. 2016).
The Court notes that petitioner did
not receive a role adjustment at sentencing that would require
clarification.
(Doc. #244, PSR ¶ 29.)
“It is now well-settled in this circuit that the sentencing
court should consider clarifying amendments when interpreting the
guidelines, even when sentencing defendants convicted before the
effective date of the amendments.”
United States v. Anderton, 136
F.3d 747, 751 (11th Cir. 1998) (citations omitted).
This is the
case in the context of a direct appeal, and upon review of a
petition under 28 U.S.C. § 2255.
States
v.
Armstrong,
347
F.3d
Cruickshank, at 1194; United
905,
908
(11th
Cir.
2003).
Nonetheless, an argument that the sentence was contrary to a
subsequent clarifying amendment “is a non-constitutional issue
that does not provide a basis for collateral relief in the absence
of a complete miscarriage of justice.”
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Burke v. United States,
152 F.3d 1329, 1332 (11th Cir. 1998).
Petitioner did not raise
the issue on his limited appeal, and the petition under § 2255 is
time-barred.
Finding no miscarriage of justice, the Court is
foreclosed from considering or applying the clarifying amendment
retroactively.
V.
Alternatively, if the Court were to consider the motion as a
request for a reduction of petitioner’s sentence under 18 U.S.C.
§ 3582(c)(2), the motion would be denied.
Section 3582 allows the
Court reduce the term of imprisonment “after considering the
factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.”
18 U.S.C.
§ 3582(c)(2).
A reduction in the defendant's term of
imprisonment is not consistent with this
policy
statement
and
therefore
is
not
authorized under 18 U.S.C. § 3582(c)(2) if-(A)
None
of
the
amendments
listed
in
subsection (d) is applicable to the defendant;
or
(B) An amendment listed in subsection (d) does
not
have
the
effect
of
lowering
the
defendant's applicable guideline range.
. . . .
U.S. Sentencing Guidelines Manual § 1B1.10(a)(2).
enumerates the list of amendments as follows:
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Subsection (d)
Amendments covered by this policy statement
are listed in Appendix C as follows: 126, 130,
156, 176, 269, 329, 341, 371, 379, 380, 433,
454, 461, 484, 488, 490, 499, 505, 506, 516,
591, 599, 606, 657, 702, 706 as amended by
711, 715, 750 (parts A and C only), and 782
(subject to subsection (e)(1)).
U.S. Sentencing Guidelines Manual § 1B1.10(d).
Therefore, for the
Court
be
to
consider
a
reduction,
there
must
an
applicable
amendment to the United States Sentencing Guidelines that lowers
the sentence, and it must be listed in U.S. Sentencing Guidelines
Manual § 1B1.10(d).
United States v. Armstrong, 347 F.3d 905, 907
(11th Cir. 2003).
It is undisputed that Amendment 794 is not
listed, and a reduction is therefore not authorized under this
bright-line rule.
See U.S. Sentencing Guidelines Manual §1B1.10
cmt. n.1; Armstrong, at 909.
Finding no jurisdictional basis to
reduce petitioner’s sentence, the motion is denied.
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. #259) 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:
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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
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 August, 2017.
Copies:
Petitioner
AUSA
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31st
day
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