Collins v. United States of America

Filing 18

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). Signed by Judge Roy B. Dalton, Jr. on 6/28/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
WILLIAM BERNARD COLLINS,
Petitioner,
v.

CASE NO. 6:16-cv-1118-Orl-37GJK
(6:13-cr-151-Orl-37GJK)

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 filed by William Bernard Collins (Doc. 1). The Government filed a response
to the § 2255 motion in compliance with this Court’s instructions and with the Rules
Governing Section 2255 Proceedings for the United States District Courts (Doc. 14). Petitioner
filed a reply (Doc. 17).
Petitioner alleges one claim for relief. However, as discussed hereinafter, the Court
finds that Petitioner is not entitled to relief, and the motion to vacate will be denied.
I.

BACKGROUND

Petitioner was charged by indictment with one count of conspiracy with intent to
distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841(b)(1)(B)(ii)
(Criminal Case No. 6:13-cr-151-Orl-37GJK, Doc. 11). 1 Petitioner pled guilty to the count

1Criminal

Case No. 6:13-cr-151-Orl-37GJK will be referred to as “Criminal Case.”

as charged (Criminal Case Doc. 32). On February 24, 2014, the Court sentenced Petitioner
as a career offender to a 130-month term of imprisonment to be followed by an eight-year
term of supervised release (Criminal Case Doc. Nos. 42, 56 at ¶ 25, and 67). Judgment was
entered on February 26, 2014 (Criminal Case Doc. 45). Petitioner did not appeal.
II.

LEGAL STANDARD

Section 2255 provides federal prisoners with an avenue for relief under limited
circumstances:
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to attack, may move the court which imposed the
sentence to vacate, set aside, or correct the sentence
28 U.S.C. § 2255. If a court finds a claim under Section 2255 to be valid, the court “shall
vacate and set the judgment aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear appropriate.” Id. To obtain this
relief on collateral review, however, a petitioner must clear a significantly higher hurdle
than would exist on direct appeal. See United States v. Frady, 456 U.S. 152, 166 (1982)
(rejecting the plain error standard as not sufficiently deferential to a final judgment).
III.

ANALYSIS

Petitioner contends his career offender sentence is unconstitutional in light of
Johnson v. United States, 135 S. Ct. 2551 (2015) (holding that the residual clause of the

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Armed Career Criminal Act (“ACCA”) is unconstitutionally vague) (Doc. 1 at 4). 2 The
Government argues that this claim is procedurally barred because it could have been
raised at sentencing or on direct appeal (Doc. 14 at 3-4).
“[A] defendant generally must advance an available challenge to a criminal
conviction or sentence on direct appeal or else the defendant is barred from presenting
that claim in a § 2255 proceeding. This rule . . . applies to all claims, including
constitutional claims.” Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004); Mills v.
United States, 36 F.3d 1052, 1055 (11th Cir. 1994). A defendant can avoid the procedural
bar by demonstrating the applicability of one of the two exceptions: (a) cause and
prejudice for the failure to raise the claim on direct or (b) “a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Mills, 36 F.3d at
1055.
This claim should have been raised on direct appeal. Therefore, this claim is
procedurally barred unless Petitioner can show cause and prejudice for his failure to raise
it on direct appeal or that he is actually innocent. Petitioner has neither alleged nor shown
any cause or prejudice for the default. Further, Petitioner has not asserted that he is
actually innocent. Consequently, this claim is procedurally barred.
Additionally, even if Petitioner’s claim was not procedurally barred, he is not
entitled to relief. The Supreme Court held in Beckles v. United States, 137 S. Ct. 886 (2017),

The Supreme Court determined Johnson was retroactive to cases on collateral
review. See Welch v. United States, 136 S. Ct 1257 (2016).
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that the advisory guidelines are not susceptible to constitutional vagueness challenges
such as the one in Johnson. Furthermore, even if Johnson were applicable to Petitioner’s
case, his two prior convictions of resisting arrest with violence and two prior convictions
of possession of cocaine with intent to distribute are qualifying convictions pursuant to
§§ 4B1.1 and 4B1.2 of the United States Sentencing Guidelines. See United States v.
Pridgeon, 853 F.3d 1192, 1198 (11th Cir. 2017) (concluding the defendant’s prior drug
convictions for sale or possession with intent to distribute qualify as controlled substance
offenses under the United States Sentencing Guidelines); United States v. Hill, 799 F.3d
1318, 1322-23 (11th Cir. 2015) (holding that a conviction for resisting an officer with
violence categorically qualifies as a crime of violence).Thus, Petitioner has at least two
prior felony convictions that qualify for career offender sentencing. Accordingly,
Petitioner’s claim is denied.
Any of Petitioner’s allegations that are not specifically addressed herein have been
found to be without merit.
IV.

CERTIFICATE OF APPEALABILITY

This Court should grant an application for a 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). To make such a showing “[t]he petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec’y, Dep’t of Corr.,
568 F.3d 929, 934 (11th Cir. 2009). However, the petitioner need not show that the appeal
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will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner fails to demonstrate that reasonable jurists would find the Court’s
assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot
show that jurists of reason would find this Court’s procedural rulings debatable.
Petitioner fails to make a substantial showing of the denial of a constitutional right. Thus,
the Court will deny Petitioner a certificate of appealability.
V.

CONCLUSION

Accordingly, it is hereby ORDERED and ADJUDGED:
1.

The motion to vacate, set aside, or correct an illegal sentence pursuant to 28

U.S.C. ' 2255 (Doc. 1) filed by William Bernard Collins is DENIED, and this case is
DISMISSED with prejudice.
2.

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

close this case.
3.

Petitioner is DENIED a certificate of appealability.

4.

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

case number 6:13-cr-151-Orl-37GJK and terminate the motion to vacate pending in that
case (Criminal Case Doc. 62).
DONE AND ORDERED in Orlando, Florida this 28th day of June, 2017.

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Copies to:
OrlP-3 6/28
William Bernard Collins
Counsel of Record

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