Smith v. United States of America

Filing 17

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255) and this case is DISMISSED. The Clerk of the Court shall enter judgment accordingly and is directed to close this case.The Clerk of the Court is directed to file a copy of this Order in criminal case number 6:10-cr-202-Orl-31KRS and to terminate the motion (Criminal Case Doc. 88) pending in that case.This Court should grant an application for certificate of appealability only if the petitioner makes "a substantial sho wing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a constitutional right. Accordingly, a Certificate of Appealability is DENIED in this case. Signed by Judge Gregory A. Presnell on 12/4/2017. (TKW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
IVAN ALBERT SMITH, JR.,
Petitioner,
v.

CASE NO. 6:16-cv-1002-Orl-31KRS
(6:10-cr-202-Orl-31KRS)

UNITED STATES OF AMERICA,
Respondent.
/
ORDER
This case involves a motion to vacate, set aside, or correct sentence pursuant to 28
U.S.C. ' 2255 (Doc. 1) filed by Ivan Albert Smith, Jr. The Government filed a motion to
dismiss Petitioner’s § 2255 motion (Doc. 4) and a supplemental response (Doc. 15).
Petitioner filed a response in opposition to the motion to dismiss (Doc. 8) but did not file
a reply to the supplemental response.
Petitioner asserts that his designation as a career offender, his conviction and
sentence for possessing a firearm in furtherance of a drug trafficking crime in violation
of 18 U.S.C. § 924(c), and his sentence pursuant to 21 U.S.C. § 851 violate his right to due
process. (Doc. 8 at 2-11). For the following reasons, the Court concludes that the motion
is untimely, otherwise without merit, and must be dismissed.
I.

PROCEDURAL HISTORY

Petitioner was charged by indictment with possession of a firearm by a convicted
felon (Count One) in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), distribution and

Page 1 of 5

possession with intent to distribute five grams or more of cocaine (Count Two) in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and possessing a firearm in furtherance
of a drug trafficking crime (Count Three) in violation of 18 U.S.C. § 924(c). (Criminal Case
No. 6:10-cr-202-Orl-31KRS, Doc. 1).1 Petitioner pled guilty to all counts. (Id. at Doc. Nos.
62, 67, 90). On February 3, 2011, this Court entered Judgment, sentencing Petitioner to
concurrent 72-month terms of imprisonment for Counts One and Two and to a
consecutive 60-month term of imprisonment for Count Three. (Id. at Doc. 71). The
Government appealed but subsequently moved to dismiss the appeal. The Eleventh
Circuit Court of Appeals dismissed the appeal with prejudice on August 10, 2011. (Id. at
Doc. 80).
II.

ANALYSIS

Pursuant to 28 U.S.C. § 2255, the time for filing a motion to vacate, set aside, or
correct a sentence is restricted, as follows:
A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of -(1)

the date on which the judgment of conviction becomes final;

(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

1Criminal

Case No. 6:10-cr-202-Orl-31KRS will be referred to as “Criminal Case.”

Page 2 of 5

(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).
Under the time limitation set forth in § 2255(f)(1), Petitioner had one year from the
date his conviction became final to file a ' 2255 motion. Petitioner’s conviction became
final on November 8, 2011. See Clay v. United States, 537 U.S. 522, 525 (2003) (“[A]
judgment of conviction becomes final when the time expires for filing a petition for
certiorari contesting the appellate court’s affirmation of the conviction.”); Sup.Ct. R. 13.3
(the time to file a petition for writ of certiorari runs from the date of the entry of judgment
or order sought to be reviewed, not the date mandate is issued). Thus, Petitioner had
through November 9, 2012, to file a 28 U.S.C. § 2255 motion under Section 2255(f)(1).
However, the instant proceeding was not filed until June 6, 2016.
Petitioner maintains that § 2255(f)(3) is applicable based on the retroactive
application of Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), which held “that
imposing an increased sentence under the residual clause of the Armed Career Criminal
Act violates the Constitution’s guarantee of due process.” See Doc. 1. The Supreme Court
held that the newly recognized right established in Johnson as to the ACCA applies
retroactively. Welch v. United States, 136 S. Ct. 1257 (2016).
Petitioner seeks to extend the holding of Johnson to the Sentencing Guidelines, §
924(c), and § 851. However, Johnson does not extend to the Sentencing Guidelines, to §
924(c), or to § 851. See, e.g., Beckles v. United States, 137 S. Ct. 886 (2017); Ovalles v. United
States, 861 F.3d 1257, 1266 (11th Cir. 2017); Mitchell v. United States, 123 F. Supp. 3d 1351,

Page 3 of 5

1355 (M.D. Fla. 2015). This is particularly true when application of the career offender
enhancement is based on prior convictions for controlled substance offenses and the §
924(c) conviction is premised on the possession of a firearm in furtherance of a drug
trafficking offense. See, e.g., United States v. Hill, 652 F. App’x 835, 836 (11th Cir. 2016) (sale
of cocaine qualifies as career offender predicate controlled substance offense). Neither the
Supreme Court of the United States nor the Eleventh Circuit Court of Appeals has held
that Johnson applies to the Sentencing Guidelines, § 924(c), or § 851. Consequently, the
instant action is untimely. See, e.g., Buford v. United States, No. 2:16-CV-8093-KOB, 2016
WL 7156065, at *2 (N.D. Ala. Dec. 8, 2016) (holding § 2255 motion was untimely because
the court did not sentence the petitioner under the residual clause of the ACCA and his
conviction under § 924(c) did not involve a crime of violence).
Nevertheless, even assuming Johnson applied retroactively to the Sentencing
Guidelines, § 924(c), and § 851, a finding not made by this Court, Petitioner would not
benefit from Johnson. Petitioner’s career offender enhancement was premised on his prior
convictions for sale of cocaine and possession of cocaine with intent to sell, which qualify
as controlled substance offenses under § 4B1.2(b). See Doc. 4-1 at 8; see also Hill, 652 F.
App’x at 836. Likewise, Petitioner’s conviction for violation of § 924(c) was premised on
his possession of a firearm in furtherance of a drug trafficking offense, not a crime of
violence. Finally, “’Johnson had no impact on the applicability of 21 U.S.C. § 851[.]’ Allen
v. United States, No. 2:03-CR-74-FTM-29, 2017 WL 631546, at *2 (M.D. Fla. Feb. 15, 2017).
Thus, Petitioner’s sentences and convictions are not implicated by the holding of Johnson.
See, e.g, United States v. Jones, No. 8:09-CR-440-T-30TGW, 2016 WL 9108854, at *2 (M.D.

Page 4 of 5

Fla. July 19, 2016) (concluding Johnson did not implicate the petitioner’s sentence under §
924(c) because he committed a drug trafficking crime, not a crime of violence).
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) is

DENIED with prejudice, and this case is DISMISSED.
2.

The Clerk of the Court shall enter judgment accordingly and is directed to

close this case.
3.

The Clerk of the Court is directed to file a copy of this Order in criminal

case number 6:10-cr-202-Orl-31KRS and to terminate the motion (Criminal Case Doc. 88)
pending in that case.
4.

This Court should grant an application for certificate of appealability only

if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a
constitutional right. Accordingly, a Certificate of Appealability is DENIED in this case.
DONE and ORDERED in Orlando, Florida on December 4, 2017.

Copies furnished to:
OrlP-1
Ivan Albert Smith, Jr.
Counsel of Record

Page 5 of 5