Waddy v. USA
Filing
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ORDER denying 1 --motion to vacate, set aside, or correct sentence (2255); directing the Clerk to ENTER A JUDGMENT against Waddy and CLOSE the case. Signed by Judge Steven D. Merryday on 7/20/2011. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
Case No. 8:98-cr-329-T-23MAP
8:11-cv-892-T-23MAP
CORNELL WAYNE WADDY
/
ORDER
In 1999 Waddy pleaded guilty to conspiracy to distribute cocaine, possession
with the intent to distribute cocaine base, and possession of a firearm by a convicted
felon. Waddy was sentenced (Doc. 42) to more than twenty years as a career offender.
Waddy's plea agreement (Doc. 26) contains the standard waiver of the right to directly
or collaterally challenge the sentence. In 2008 Waddy moved to reduce his sentence
under a retroactive change to the sentencing guidelines, a motion that was denied (Doc.
67) because Waddy was sentenced as a career offender.
Waddy’s motion to vacate under 28 U.S.C. § 2255 challenges the validity of his
designation as a career offender. Waddy argues that he is "actually innocent" of the
career offender enhancement based on Johnson v. United States, ___ U.S. ___, 130
S. Ct. 1265 (2010), United States v. Shannon, 631 F.3d 1187 (11th Cir. 2011), and
Gilbert v. United States, 609 F.3d 1159 (11th Cir. 2010) ("Gilbert I"). Waddy's motion
lacks merit for three reasons.
First, the motion to vacate is untimely. Waddy's conviction became final in 1999
and his one-year limitation expired in 2000. Waddy asserts that he is entitled to a new
one-year limitation from the date Johnson was issued. Section 2255(f)(3) permits a new
one-year from "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 . . . ." Assuming that the
new right recognized in Johnson applies to Waddy's facts, Waddy acquires no new
statute of limitation because Johnson was decided on direct appeal and the Supreme
Court has not retroactively applied it. Consequently, Section 2255(f)(3) is inapplicable.
Second, Waddy's "actual innocence" argument lacks merit because Waddy must
show that he did not commit the offense. "It is important to note in this regard that
'actual innocence' means factual innocence, not mere legal insufficiency." Bousley v.
United States, 523 U.S. 614, 623 (1998). Actual innocence requires a showing that new
evidence compels a finding of not guilty. "A petitioner's burden . . . is to demonstrate
that more likely than not, in light of the new evidence, no reasonable juror would find
him guilty beyond a reasonable doubt—or, to remove the double negative, that more
likely than not any reasonable juror would have reasonable doubt." House v. Bell, 547
U.S. 518, 538 (2006). Because his actual innocence argument is limited to only the
sentence, Waddy shows no factual innocence of the criminal offense.
Waddy argues that Gilbert I permits an actual innocence claim directed to only
the sentence. His reliance on Gilbert I is misplaced because that panel decision was
vacated by Gilbert v. United States, 625 F.3d 716 (11th Cir. 2010) ("Gilbert II").
Waddy's actual innocence argument is precluded by Gilbert v. United States, 640 F.3d
1293, 1322-23 (2011) (en banc) ("Gilbert III"), which holds "that the Sawyer [v. Whitley,
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505 U.S. 333 (1992)], actual innocence of sentence exception does not apply to claims
that the guidelines were misinterpreted to produce a higher guidelines range than would
otherwise have applied . . . ."
Waddy's sentence is more than ten years old. Gilbert III, 640 F.3d at 1295,
recognized that "finality of judgment and the important interests that finality promotes"
cautions against examining a sentence that was correctly calculated when imposed
even though subsequent interpretations of the guidelines would now require a different
sentence. Consequently, Waddy's actual innocence argument is rejected.
Third, in the plea agreement Waddy waived his right to challenge the calculation
of his sentence. The negotiated plea agreement (Doc. 26) specifically states that
Waddy "expressly waives the right to appeal defendant's sentence, directly or
collaterally, on any ground except for an upward departure by the sentencing judge or a
sentence above the statutory maximum or a sentence in violation of the law apart from
the sentencing guidelines . . . ." Consequently, Waddy waived his right to challenge his
sentence in a Section 2255 motion.
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is DENIED.
The clerk shall enter a judgment against Waddy and close this case.
ORDERED in Tampa, Florida, on July 20, 2011.
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