Johnson v. USA

Filing 5

ORDER denying 1 --motion to vacate, set aside, or correct sentence (2255); directing the Clerk to ENTER A JUDGMENT against Johnson and CLOSE the case; denying a certificate of appealability; denying leave to appeal in forma pauperis. Signed by Judge Steven D. Merryday on 7/26/2012. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

Case No. 8:01-cr-421-T-23EAJ
8:12-cv-1456-T-23EAJ

STEVEN M. JOHNSON
/

ORDER
Johnson moves to vacate his sentence under 28 U.S.C. § 2255 (Doc. 1).
Rule 4, Rules Governing Section 2255 Cases, requires both a preliminary review of
the motion to vacate and a summary dismissal “[i]f it plainly appears from the face of
the motion, any attached exhibits, and the record of prior proceedings that the
moving party is not entitled to relief . . . .” Accord Wright v. United States, 624 F.2d
557, 558 (5th Cir. 1980)1 (The summary dismissal of a Section 2255 motion was
proper “[b]ecause in this case the record, uncontradicted by [defendant], shows that
he is not entitled to relief.”); Hart v. United States, 565 F.2d 360, 361 (5th Cir. 1978)
(“Rule 4(b) of § 2255 allows the district court to summarily dismiss the motion and
notify the movant if <it plainly appears from the face of the motion and any annexed

1

Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued
before October 1, 1981, binds this court. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc).

exhibits and the prior proceedings in the case that the movant is not entitled to
relief.’”). The motion to vacate is time-barred.
In 2002 Johnson pleaded guilty to conspiracy to possess with the intent to
distribute more than fifty grams of cocaine base, for which he was sentenced to one
hundred months imprisonment and thirty-six months supervised release. (Doc. 84)
In 2008 Johnson successfully moved to reduce his sentence under 18 U.S.C.
§3582(c)(2) when the cocaine base sentencing guidelines were revised. Johnson’s
sentence was reduced to time served plus ten days. (Doc. 135) Johnson served half
of the term of supervised release, which was revoked because Johnson was arrested
for trafficking in oxycodone pills. (Doc. 143) On April 22, 2011, Johnson was
sentenced to twenty-four months imprisonment and thirty-six months supervised
release. Because Johnson filed no appeal, the judgment became final on May 6,
2011. Rule 4(b)(1), Fed. R. App. Pro.
The Anti-Terrorism and Effective Death Penalty Act creates a limitation for a
motion to vacate. “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 . . . .” 28 U.S.C. § 2255(f).
Because his conviction was final on May 6, 2011, Johnson’s limitation expired
one year later,2 on May 7, 2012. Under the mailbox rule, Johnson’s motion to vacate
2

One year from finality was May 6, 2012, which was a Sunday. Rule 45(a)(1)(C) extends
the deadline to “the next day that is not a Saturday, Sunday, or legal holiday.” As a consequence,
the deadline was extended until Monday, May 7, 2012.
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is considered filed as of June 27, 2012.3 Because the motion was filed approximately
six weeks too late, Johnson’s motion to vacate is time-barred.
Recognizing the limitation bar and citing Carachuri-Rosendo v. Holder, ___ U.S.
___, 130 S. Ct. 2577 (2010), and United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc), Johnson argues for a delayed start of the limitation. His argument
lacks merit.
Carachuri-Rosendo involves a defendant who sought discretionary cancellation
of removal under the Immigration and Nationality Act (“INA”). Carachuri-Rosendo
argued that neither of his earlier state convictions qualified as an “aggravated felony”
under the INA. Carachuri-Rosendo had two prior simple-possession misdemeanor
drug convictions from Texas, for which he was sentenced to the county jail for
twenty days and ten days, respectively. The second offense was not enhanced to a
felony (although an enhancement was permitted under state law) because the
prosecutor chose not to charge Carachuri-Rosendo as a “recidivist.” Nevertheless,
under Lopez v. Gonzales, 549 U.S. 47 (2006), the second misdemeanor conviction was
considered an “aggravated felony” under the INA because, hypothetically, the state
prosecutor could have pursued an enhanced felony sentence on the second
conviction. In rejecting the Fifth Circuit’s “hypothetical approach,” Carachuri-

3

Houston v. Lack, 487 U.S. 266, 276 (1988) (“[T]he notice of appeal was filed at the time
petitioner delivered it to the prison authorities for forwarding to the court clerk.”); Adams v. United
States, 173 F.3d 1339, 1341 (11th Cir. 1999) (holding that a pro se prisoner’s motion to vacate is
deemed filed on the date it is delivered to prison authorities for mailing).
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Rosendo, 130 S. Ct. at 2589, held that “when a defendant has been convicted of a
simple possession offense that has not been enhanced based on the fact of a prior
conviction, he has not been <convicted’” of an “aggravated felony” that would
disqualify an alien from seeking discretionary cancellation of his removal.
Simmons extended Carachuri-Rosendo’s analysis under the INA to criminal
sentencing under the Controlled Substances Act. Simmons is not binding outside of
the Fourth Circuit and no other circuit court has adopted Simmons. As a
consequence, Simmons affords Johnson no benefit.
Additionally, Johnson acquires no benefit directly from Carachuri-Rosendo.
Johnson seeks relief on collateral review. Johnson cannot benefit from CarachuriRosendo because “a new rule is not made retroactive to cases on collateral review
unless the Supreme Court holds it to be retroactive.” Tyler v. Cain, 533 U.S. 656
(2001). The Supreme Court has not said that Carachuri-Rosendo is retroactive.
Accordingly, the motion to vacate under 28 U.S.C. § 2255 (Doc. 1) is
DENIED. The clerk shall enter a judgment against Johnson and close this case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS
Johnson is not entitled to a certificate of appealability (“COA”). 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). Rather, a district court must first issue

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a COA. Section 2253(c)(2) limits the issuing of a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” To merit a
certificate of appealability, Johnson must show that reasonable jurists would find
debatable both (1) the merits of the underlying claims and (2) the procedural issues he
seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478
(2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir 2001). Because the petition is
clearly time-barred, Johnson cannot meet Slack’s prejudice requirement. 529 U.S. at
484. Finally, Johnson is not entitled to appeal in forma pauperis because he is not
entitled to a certificate of appealability.
Accordingly, a certificate of appealability is DENIED. Leave to proceed in
forma pauperis on appeal is DENIED. Johnson must pay the full $455 appellate filing
fee without installments unless the circuit court allows Johnson to proceed in forma
pauperis.
ORDERED in Tampa, Florida, on July 26, 2012.

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