Footman v. United States of America
Filing
11
ORDER denying 6 Motion to vacate, set aside, or correct sentence (2255. Petitioner is neither entitled to a COA nor to proceed IFP on appeal. The clerk is directed to enter judgment accordingly and close this case. Signed by Judge James D. Whittemore on 8/17/2011. (KE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DELVECCHIO FOOTMAN,
Petitioner,
vs.
CASE NO. 8:10-cv-1831-T-27MAP
CRIM. CASE NO. 8:04-cr-484-T -27MAP
UNITED STATES OF AMERICA,
Respondent.
--------------------------------~/
ORDER
BEFORE THE COURT is Petitioner's Amended Motion to Vacate, Set Aside or Correct
Sentence pursuant to 28 U.S.C. § 2255 (CV Dkt. 6) and the Government's Response (CV Dkt. 10).
Upon consideration, Petitioner's amended motion to vacate is DENIED.
Procedural Background
Petitioner was charged by an indictment with distributing five (5) grams or more of a mixture
or substance containing a detectable amount of cocaine base, in violation of21 U.S.C. §§ 841(a)(I)
and (b)(1 )(B)(iii). (CR Dkt. 1). On December 2, 2004, Petitioner pleaded guilty pursuant to a
written plea agreement. l (CRDkts. 13, 16). On March 2, 2005, Petitioner was sentenced as a career
offender under U.S.S.G. § 4Bl.l to one hundred twenty (120) months imprisonment to be followed
by five years of supervised release. (CR Dkt. 27). After granting the Government's subsequent Rule
I Petitioner pleaded guilty to Count One of the Indictment. The court granted the Government's motion to
dismiss Counts Two and Three. (CR Dkts. 24, 25).
35 motion to reduce Petitioner's sentence based on his substantial assistance, the court reduced
Petitioner's sentence to ninety-six months imprisonment. 2 (CR Dkts. 29, 32). Petitioner did not
appeal.
Petitioner signed his original Section 2255 motion on August 10,2010. (CR Dkt. 37; CV
Dkt. 1). The Respondent challenges the timeliness of the motion.
Petitioner presents one ground for relief:
Ground One:
Petitioner is no longer a career criminal in light of the decisions in Begay
v. United States, 553 U.S. 137 (2008), and Johnson v. United States,_
U.S. _ , 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)
Discussion
I.
Timeliness
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), effective April 24, 1996,
establishes a one-year limitation period for Section 2255 motions. See Goodman v. United States,
151 F.3d 1335, 1336 (lIth Cir. 1998). Specifically, Section 2255 provides that the one-year
limitation 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
(4)
the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.
2
The term of supervised release previously imposed remained the same. (CR Dkt. 32).
2
28 U.S.C. § 2255(f). See also Pruitt v. United States, 274 F.3d 1315, 1317 (11 th Cir. 2001).
Petitioner pleaded guilty and judgment was entered on March 3, 2005. (CR Dkt. 27).
Petitioner filed no direct appeal. Consequently, under the appellate rules in effect when the
judgment was entered, Petitioner's conviction became final on March 17,2005, when the ten-day
period for filing a notice of appeal expired. 3 Fed. R. Crim. P. 45(a)(1); Fed. R. App. P. 4(b)(1)(A)(i)
(West 2005). Petitioner had until March 17, 2006, to timely file a Section 2255 motion. Petitioner
did not file his original Section 2255 motion until August 10,2010, more than four years after the
expiration of Section 2255's one-year limitation. Consequently, the motion is time-barred.
Notwithstanding, Petitioner argues that his motion is timely because he filed it within one
year of the decision in Johnson v. United States,
-
U.S. -
, 130 S.Ct. 1265, 176 L.Ed.2d 1
(2010). In Johnson, the United States Supreme Court held that, under Florida law, a felony battery
conviction is not a "violent felony" under the Armed Career Criminal Act. Petitioner contends that,
pursuant to Johnson, his prior conviction for battery on a law enforcement officer used in
determining his status as a career offender would not now qualify as a "crime of violence" and,
therefore, he does not qualify as a career offender. Relying upon 28 U.S.C.§ 2255(f)(3), Petitioner
argues that Johnson established a new substantive rule oflaw that applies retroactively on collateral
review and, consequently, the March 2, 2010, decision in Johnson triggered the start of his federal
limitation for timely filing a Section 2255 motion. See 28 U. S. C. § 2255 (f)(3). Petitioner's argument
lacks merit.
3 The timeliness of Petitioner's motion is calculated from the date of entry of the original judgment and not the
date of his Rule 35 sentence reduction. Murphy v. United States, 634 F.3d 1303 (lIth Cir. 2011).
3
First, for Petitioner to avail himself of the date of the Johnson decision to establish the
timeless of his motion under Section 2255(f)(3), he must demonstrate that Johnson applies
retroactively. Johnson includes no statement from the Supreme Court that the decision applies
retroactively to cases on collateral review. No binding Eleventh Circuit decision requires retroactive
application of Johnson to Petitioner's Section 2255 motion and he cites no legal authority to support
his contention that Johnson's date is the appropriate trigger for the federal limitation in determining
the timeliness of this Section 2255 motion. Consequently, the timeliness of Petitioner's motion is
calculated from March 17,2005, the date that his conviction became final. As discussed above, the
instant motion, filed on August 10, 2010, is untimely and federal review is precluded absent a
demonstration of equitable tolling.
Equitable tolling requires both extraordinary circumstances and due diligence. Diaz v. Sec y,
Dep't o/Corr., 362 F.3d 698, 702 (11th Cir. 2004). To establish eligibility for equitable tolling, a
petitioner must show: '"(l) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and prevented timely filing. II Holland v. Florida, _
U.S. _ , 130 S. Ct. 2549,2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Equitable tolling "is an extraordinary remedy that must be applied sparingly." Holland v. Florida,
539 F.3d 1334, 1338 (11th Cir. 2008). "The burden of establishing entitlement to this extraordinary
remedy plainly rests with the petitioner." Drew v. Dep't o/Corr., 297 F.3d 1278, 1286 (l1th Cir.
2002).
A change in the law is not an extraordinary circumstance. Gonzalez v. Crosby, 545 U.S. 524
(2005); Outler v. United States, 485 F.3d 1273, 1281 (lIth Cir. 2007). Consequently, Petitioner
4
cannot avail himself of the benefit of equitable tolling because he fails to demonstrate an
extraordinary circumstance that prevented him from timely filing his Section 2255 motion.
II.
Actual innocence
To the extent that Petitioner's motion can be read to assert the argument that he is actually
innocent of the career offender enhancement, he cannot obtain relief. Generally, actual innocence
may serve to overcome the procedural bar caused by the untimely filing of a Section 2255 motion.
United States v. Montano, 398 F .3d 1276, 1280 (11 th Cir. 2005). However, "actual innocence" does
not apply to a career offender designation because that designation is not a separate substantive
offense for which Petitioner stands convicted. See Gilbert v. United States, 640 F.3d 1293, 1320
(11th Cir. 2011) ("A defendant who is convicted and then has the § 4Bl.l career offender
enhancement ... applied in the calculation of his sentence has not been convicted of being guilty of
the enhancement. ") ("Gilbert If'). See also Bido v. United States, 2011 WL 2899606 at *2 (11 th Cir.
July 20, 2011 ) (applying Gilbert II and rejecting the petitioner's claim that he was actually innocent
of the career offender enhancement). Accordingly, Petitioner cannot satisfy the actual innocence
exception to lift the procedural bar caused by his failure to timely file his motion to vacate.
III.
Cognizability
Even assuming, arguendo, that Johnson applies retroactively rendering Petitioner's Section
2255 motion timely, he is not entitled to relief. Collateral relief under Section 2255 "is reserved for
transgressions of constitutional rights and for that narrow compass of other injury that could have
been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. "
Richards v. United States, 837 F.2d 965,966 (11 th Cir. 1988). Petitioner challenges the trial court's
application of the Sentencing Guidelines, a non-constitutional issue that provides no basis for
5
collateral relief. Lynn v. United States, 365 F.3d 1225, 1232 (11 th Cir. 2004); Burke v. United
States, 152 F.3d 1329, 1331-32 (1Ith Cir. 1998).
Evidentiary hearing
This case warrants no evidentiary hearing because "it plainly appears from the face of the
motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled
to relief." Broadwater v. United States, 292 F.3d 1302, 1303 (1Ith Cir. 2003).
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability.
A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial
of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of
appealability (COA). Id. "A [COA] may issue ... only if the applicant has made a substantial
showing of the denial of a constitutional right." Id. at § 2253(c)(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) (quoting
Slackv. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were 'adequate to deserve
encouragement to proceed further."' Miller-El v. Cockrell, 537 U.S. 322,335-36 (2003) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). 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.
6
Accordingly, it is ORDERED AND ADJUDGED that Petitioner's Amended Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Dkt. 6) is DENIED. The
clerk is directed to enter judgment against Petitioner and to close this case.
DONE AND ORDERED in chambers this
Copies to~
Petitioner, pro se
Counsel of record
7
J1 "!: of Act'" ~.,
day
,2011.
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