Charlot v. United States of America
Filing
11
OPINION AND ORDER dismissing without prejudice 1 Motion to vacate/set aside/correct sentence (2255) as to Ground One as untimely in part and for lack of due diligence in part and as to Grounds Two and Three for lack of jurisdiction; dismissing [ 10] Motion for reduction without prejudice for lack of jurisdiction. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:03-cr-126-FTM-29), 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 1/29/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MAX CHARLOT,
Petitioner,
v.
Case No: 2:17-cv-372-FtM-29MRM
Case No: 2:03-cr-126-FtM-29
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #290) 1, filed
on June 30, 2017.
The United States Response in Opposition (Cv.
Doc. #6) was filed on September 1, 2017.
(Cv. Doc. #9) on October 26, 2017.
Petitioner filed a Reply
Petitioner also filed a
Memorandum in Support of Post-Conviction Rehabilitative Efforts
Pursuant to Pepper v. United States (Cv. Doc. #10) on November 24,
2017.
For the reasons set forth below, the § 2255 motion is
dismissed, and the Memorandum in Support, construed as a motion,
is dismissed.
1 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.”
I.
In
November
2013,
petitioner
Max
Charlot
(petitioner
or
Charlot) was charged with two counts of a five-count Indictment.
(Cr. Doc. #35.)
Count One charged that on or about October 30,
2003, petitioner and five other named defendants conspired to
possess with intent to distribute and to distribute five kilograms
or more of a mixture or substance containing a detectable amount
of cocaine.
Count Two charged that on October 30, 2003, petitioner
did knowingly use, carry, and possess a firearm during and in
relation to the drug trafficking crime charged in Count One.
The
case involved a reverse sting operation wherein an undercover
police officer posed as a disgruntled courier of cocaine. The
undercover officer was to advise defendants of when and where he
would be delivering one or two kilograms of cocaine, and petitioner
and his co-defendants were to rob the location of the one or two
kilograms plus the far larger amount (40-50 kilograms) which was
represented to be at the location.
(Cr. Doc. #280, p. 9, ¶ 9.)
In February 2004, petitioner was convicted by a jury on both
counts.
On the verdict form, the jury specifically found that
petitioner was responsible for at least five kilograms of cocaine.
(Cr. Doc. #138.)
At the sentencing hearing, the Court found that
defendant occupied a leadership role as an organizer or leader of
criminal activity involving five or more participants, and imposed
a four level enhancement under United States Sentencing Guidelines
- 2 -
Manual § 3B1.1(a) (2003). The Court also determined that for
sentencing
purposes
kilograms of cocaine.
petitioner
was
responsible
for
40
to
50
Petitioner was sentenced to a term of 262
months of imprisonment as to Count One, and 60 consecutive months
of imprisonment as to Count Two, followed by a term of supervised
release.
Judgment was filed on May 26, 2004.
(Cr. Doc. #174.)
Petitioner filed a direct appeal, and the Eleventh Circuit
upheld the convictions and sentences. (Cr. Doc. #210); United
States v. Charlot, 135 F. App’x 365 (11th Cir. 2005).
Petitioner’s
petition for a writ of certiorari with the United States Supreme
Court was denied.
Charlot v. United States, 546 U.S. 957 (2005).
On October 2, 2006, petitioner filed his first Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody. (Cr. Doc. #237.)
The district court
denied the motion on the merits on June 3, 2008.
(Cr. Doc. #247.)
Petitioner’s Traverse to his motion raised the claim that three of
petitioner’s prior convictions were the result of involuntary
guilty pleas, and therefore could not be considered in petitioner’s
criminal history calculation. (Cr. Doc. #237, pp. 6-7.)
The
district court held that two of the convictions had not been
challenged in state court, and therefore could not be challenged
at sentencing or in a § 2255 proceeding.
(Cr. Doc. #247, p. 11.)
As to the third conviction, petitioner asserted that the simple
battery conviction had been vacated by the state court on November
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21, 2006.
The district court found the § 2255 motion was timely
as to this conviction and assumed petitioner had acted with due
diligence, but denied habeas relief, stating:
The state conviction which has now been set
aside was for simple assault in 1999, for
which he received a two day jail sentence.
Eliminating that conviction would still result
in a Criminal History Category II, and
therefore the Sentencing Guidelines range
would not change. The absence of this
misdemeanor conviction would not have changed
the sentence the Court imposed on defendant.
(Id. at 11-12.)
A certificate of appealability was denied by the
district court on July 16, 2008 (Case No. 2:06-cv-525-FTM-29DNF,
Cv. Doc. #14), and also by the Eleventh Circuit on February 5,
2009.
(Id., Cr. Doc. #21.)
On April 28, 2014, petitioner filed a second Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody. (Cr. Docs. ## 271, 272.)
Petitioner asserted
that the government had withheld exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83 (1963), and that petitioner had
received ineffective assistance of counsel.
the
district
court
dismissed
the
§
2255
On April 29, 2014,
motion
for
lack
of
jurisdiction because petitioner had not obtained authorization
from the Eleventh Circuit to file a second or successive motion.
(Cr. Doc. #273.)
In December 2015, the Court reduced petitioner’s sentence to
210
months
of
imprisonment
on
Count
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One,
with
a
consecutive
sentence of 60 months on Count Two, pursuant to Amendment 782 of
the United States Sentencing Guidelines.
(Cr. Doc. #284.)
In November 2016, petitioner filed an application with the
Eleventh Circuit for authority to file a second or subsequent
motion pursuant to § 2255(h).
The application raised one claim,
asserting that two of his prior convictions had been vacated and
he should therefore be resentenced.
(Cr. Doc. #288, p. 2.)
The
Eleventh Circuit found that authorization was unnecessary to file
a new § 2255 motion raising this issue because petitioner could
not have raised the claim in his original § 2255 motion.
(Id. at
p. 3.)
II.
Petitioner’s third and current Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody
(Cr.
Doc.
#290)
was
filed
on
June
liberally, petitioner raises three issues:
30,
2017.
Read
(1) Since the time of
petitioner’s original sentencing, two of his prior state court
convictions
have
resentenced
using
been
a
vacated,
corrected
and
therefore
criminal
he
history
should
score;
be
(2)
petitioner’s conviction violates due process of law because it
involves a statute that unconstitutionally criminalizes mythical
conduct as the result of a “reverse sting” operation by law
enforcement; and (3) there is no federal jurisdiction under the
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Hobbs Act where the facts arise from a “reverse sting” by law
enforcement.
A. Jurisdiction to Consider Claims
The Eleventh Circuit has already found that the district court
would have jurisdiction without a certificate of appealability as
to the claim related to the post-sentencing vacatur of two of
petitioner’s prior state convictions.
The second and third issues raised in the current § 2255
motion do require a certificate of appealability because they could
have been raised on direct appeal or in the original habeas
petition, but were not.
or
successive
§
2255
“The AEDPA provides that, to file a second
motion,
the
movant
must
first
file
an
application with the appropriate court of appeals for an order
authorizing the district court to consider it.
2244(b)(3)(A).[]
See 28 U.S.C. §
Without authorization, the district court lacks
jurisdiction to consider a second or successive petition.
Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997).”
See
Farris v.
United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (footnote
omitted).
See also Thomas v. Florida, 706 F. App’x 653, 654 (11th
Cir. 2017) (same).
Therefore, claims (2) and (3) are dismissed
without prejudice for lack of jurisdiction.
Alternatively, claim 3 is dismissed because it fails to state
a
meritorious
jurisdictional
claim
since
petitioner
charged with or convicted of a Hobbs Act violation.
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was
not
B. Petitioner’s Prior Convictions
The Presentence Report (PSR) used in sentencing petitioner
showed that the following prior convictions were assessed points
in determining petitioner’s criminal history under the Sentencing
Guidelines:
(1)
In
1998,
petitioner
pled
guilty
and
had
adjudication withheld for Possession of Cocaine and Possession of
Cannabis, for which he was assessed 1 point under the Sentencing
Guidelines; (2) in 1999, petitioner was arrested for aggravated
assault with a firearm, and in 2001 pled nolo contendere with an
adjudication
of
guilty
for
simple
assault,
for
which
he
was
assessed 1 point under the Sentencing Guidelines; and (3) in 2001
petitioner pled nolo contendere with adjudication withheld for
possession of marijuana, for which he was assessed 1 point under
the Sentencing Guidelines.
As a result of the three criminal
history points, petitioner was a criminal history category II.
(Cr. Doc. #280, pp. 15-16, ¶¶ 50-55.)
C. Timeliness of § 2255 Motion
Petitioner asserts that his 1999 simple assault conviction
and
his
1998
controlled
substance
convictions
have
vacated, and he should therefore be re-sentenced.
now
been
Petitioner
further asserts that the current § 2255 motion is timely, relying
solely upon § 2255(f)(4), which provides that a § 2255 motion must
be filed within one year of “[t]he date on which the facts
supporting the claim or claims presented could have been discovered
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through the exercise of due diligence.”
The United States asserts
that the current ¶ 2255 motion is untimely because it was filed
beyond the one year time period set forth in § 2255(f)(4) and/or
petitioner did not act with due diligence.
The Supreme Court has held that a state court order vacating
a prior conviction is a “fact” which can start the statute of
limitations under § 2255(f)(4).
U.S. 295, 302 (2005).
Johnson v. United States, 544
The one-year statute of limitations period
“begins when a petitioner receives notice of the order vacating
the prior conviction, provided that he has sought it with due
diligence in state court, after entry of judgment in the federal
case with the enhanced sentence.”
Johnson, 544 U.S. at 298.
See
also Rivers v. United States, 416 F.3d 1319, 1322 (11th Cir. 2005)
(petitioner must show due diligence in obtaining the vacatur even
if
the
one-year
period
under
§
2255(f)(4)
is
satisfied).
“[D]iligence can be shown by prompt action on the part of the
petitioner as soon as he is in a position to realize that he has
an interest in challenging the prior conviction with its potential
to
enhance
the
later
sentence.”
Johnson,
544
U.S.
at
308.
Diligence is measured from the date of the entry of judgment by
the district court in the federal case.
Johnson, 544 U.S. at 308-
09.
The record and petitioner’s representations establish the
following chronology:
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May 26, 2004: Judgment (Cr. Doc. #174) filed
in federal case.
September 26, 2006: Petitioner signs § 2255
motion in Case No. 2:06-cv-525-FTM-29DNF,
asserting that the prior convictions used to
calculate
his
criminal
history
were
unconstitutional
because
they
were
involuntary and unintelligent.
(Cr. Doc.
#237, pp. 6-7.)
Unknown Date: Petitioner files a Rule 3.850
motion to vacate and/or for post-conviction
relief in the state court simple assault case,
Case No. F99-32382. (Cv. Doc. #1, Exh. 2.)
November 21, 2006: State court conviction for
simple assault in Case No. F99-32382 vacated
pursuant to petitioner’s motion to vacate
and/or for post-conviction relief. (Cv. Doc.
#1, Exh. 2.)
December 22, 2006: Petitioner files a Traverse
raising the issue of the vacatur of simple
assault conviction in Case No. F99-32382 in
relation to a pending § 2255 Motion.
(Case
No. 2:06-cv-525-FTM-29DNF, Cv. Doc. #7.)
February 23, 2007:
Petitioner files Rule
3.850 motion in state court to vacate the two
controlled substance convictions, Case No.
F98-021499. (Cv. Doc. #9, p. 3.)
June 3, 2008: Court denies the § 2255 signed
on September 26, 2006, after considering
merits of the issue raised in the Traverse
relating
to
vacatur
of
simple
assault
conviction. (Cr. Doc. #247.)
October, 2010:
Rule 3.850 motion denied in
state court as to the two controlled substance
convictions, Case No. F98-021499. (Cv. Doc.
#9, p. 3.)
July 25, 2016: Petitioner, through counsel,
files another motion to correct illegal
sentence in state court as to the two
controlled substance convictions in Case No.
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F98-21499.
p. 3.)
(Cv. Doc. #1, Exh. 1; Cv. Doc. #9,
September 7, 2016: Petitioner’s two state
controlled substance convictions vacated by
state court pursuant to a defense motion to
correct illegal sentence filed on July 25,
2016. (Cv. Doc. #1, Exh. 1.)
November 16, 2016: Petitioner files his
Application for Leave to File a Second or
Successive § 2255 motion with the Eleventh
Circuit. (Case 16-17132.)
December 14, 2016: Petitioner’s Application
denied as unnecessary by the Eleventh Circuit.
(Cr. Doc. #288.)
June 30, 2017:
2255 motion.
(1)
Petitioner files current §
Application to Simple Assault Conviction
The Court already ruled on the simple assault vacatur in the
first § 2255 motion.
The Court found the § 2255 motion was timely
and assumed petitioner had acted with due diligence, but denied
habeas relief, stating:
The state conviction which has now been set
aside was for simple assault in 1999, for
which he received a two day jail sentence.
Eliminating that conviction would still result
in a Criminal History Category II, and
therefore the Sentencing Guidelines range
would not change. The absence of this
misdemeanor conviction would not have changed
the sentence the Court imposed on defendant.
(Cr. Doc. #247, pp. 11-12.)
Called upon to consider the issue anew, the Court concludes
that the claim as asserted in the most recent § 2255 motion is not
timely.
Petitioner believed this conviction was constitutionally
- 10 -
defective since at least September 26, 2006, and he received the
state court order vacating the conviction on or about November 21,
2006.
Petitioner did not file the current § 2255 motion raising
the issue until June 30, 2017.
The current motion was thus filed
over ten years after petitioner received the order vacating the
conviction, and the motion is untimely as to this claim.
Johnson,
544 U.S. at 311.
(2)
It
Application to Controlled Substance Convictions
is
substance
clear
that
convictions
the
claim
vacatur
was
relating
timely
to
the
controlled
filed.
Petitioner
received the order vacating the controlled substances convictions
on or about September 7, 2016, and filed the current § 2255 motion
on June 30, 2017, well within the one-year time period.
Petitioner, however, was not diligent in obtaining the order
vacating the controlled substances convictions.
Petitioner filed
his first state court Rule 3.850 motion as to these convictions on
February 23, 2007, approximately 33 months after the May 26, 2004
federal judgment.
of diligence.
This delay alone is sufficient to show a lack
Johnson, 544 U.S. at 311.
The motion was denied
in October 2010, and petitioner took no further steps until July
25, 2016, over five years later, when he filed another state court
post-conviction motion through counsel.
Petitioner argues that the five year delay in filing the
second Rule 3.850 motion was excused because his claim did not
- 11 -
become viable until the Eleventh Circuit decided United States v.
Clarke, 822 F.3d 1213 (11th Cir. 2016) on May 11, 2016.
This
cannot be a justifiable excuse for delay in further challenging
the
validity
of
the
state
controlled
substance
convictions.
Clarke held that a guilty plea without adjudication of guilt does
not qualify as a felony for purposes of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1).
Such a
decision cannot have had an impact on the validity of the state
court
proceedings
convictions.
regarding
the
two
controlled
substance
Clarke does not even have an impact of petitioner’s
federal case, since he was not charged with being a felon in
possession of a firearm, and use of a prior guilty plea with
adjudication withheld still warrants a criminal history point as
a “diversionary disposition.”
United States v. Marius, 678 F.
App'x 960, 964 (11th Cir.), cert. denied, 137 S. Ct. 2230 (2017);
United States v. Arias, No. 16-16063, 2017 WL 4422468, at *3 (11th
Cir. Oct. 5, 2017).
Petitioner also offers as justification his pro se status,
the constraints of incarceration, and the costs of hiring counsel.
As in Johnson, these reasons do not justify the delays, and both
sets of delays are long enough to demonstrate a lack of due
diligence.
Johnson, 544 U.S. at 311.
- 12 -
D. Rehabilitation Motion
Liberally construed, petitioner’s Memorandum in Support of
Post-Conviction
Rehabilitative
Efforts
Pursuant
to
Pepper
v.
United States (Cv. Doc. #10) appears to be a request for a sentence
reduction
based
upon
rehabilitation.
The
Court
has
no
jurisdiction to reduce a sentence for such reasons, and therefore
this Memorandum, deemed to be a motion, will be dismissed without
prejudice.
Accordingly, it is hereby
ORDERED:
1. Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
(Cv. Doc. #1; Cr. Doc. #290) is DISMISSED without prejudice
as to Ground One as untimely in part and for lack of due
diligence in part; and without prejudice as to Grounds Two
and Three for lack of jurisdiction.
2. Petitioner’s
Memorandum
in
Support
of
Post-Conviction
Rehabilitative Efforts Pursuant to Pepper v. United States
(Cv. Doc. #10), construed as a motion, is DISMISSED without
prejudice for lack of jurisdiction.
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:
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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.”
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).
requisite
showing
in
these
Petitioner has not made the
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:
Petitioner
Counsel of Record
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29th
day
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