Winters v. United States of America

Filing 16

ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying Winters's request for an evidentiary hearing; directing the clerk to enter a judgment against Winters and to CLOSE this case. Signed by Judge Steven D. Merryday on 3/9/2018. (GSO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

CASE NO. 8:12-cr-79-T-23TBM
8:13-cv-3086-T-23CPT

JERMAINE WINTERS
/

ORDER
Sentenced to 180 months’ imprisonment as an armed career criminal,
Jermaine Winters moves (Doc. 1) under 28 U.S.C. § 2255 to vacate his sentence.
Because Winters’s claims are procedurally defaulted and untimely, the motion to
vacate is denied.
Background
On December 27, 2011, Tampa police officers stopped Winters for driving
with an expired tag. Winters fled on foot and entered a nearby house. Winters later
surrendered and spontaneously declared, “I have a gun in the car.” An officer found
a loaded semi-automatic handgun on the front driver-side seat.
At the time of his arrest, Winters possessed one felony conviction for
attempted robbery in violation of Section 812.13, Florida Statutes, and two felony
convictions for delivery and possession of cocaine in violation of Section 893.13,
Florida Statutes. On February 23, 2012, a grand jury returned a one-count

indictment charging Winters with possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e).
Winters pleaded guilty without a written plea agreement. At sentencing,
Winters offered no objection to the pre-sentence investigation report. Winters was
sentenced to 180 months’ imprisonment, the mandatory minimum sentence under
the Armed Career Criminal Act. Winters filed no direct appeal.
On December 6, 2013, Winters moved (Doc. 1) under 28 U.S.C. § 2255 to
vacate his sentence and asserted three claims for ineffective assistance of counsel and
one substantive claim under the Tenth Amendment. The government responds.
(Doc. 12)
On June 13, 2014, Winters moved (Doc. 8) to amend the motion and to raise
supplemental claims under Descamps v. United States, 570 U.S. 254 (2013) and United
States v. Castleman, 134 S. Ct. 1405 (2014). A July 25, 2014 order (Doc. 9) grants the
motion to amend, and the government responds (Doc. 13).
Initial claims
The government argues that Winters’s initial claims are procedurally
defaulted. “Under the procedural default rule, 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.” Lynn v.
United States, 365 F.3d 1225, 1234 (11th Cir. 2004). A defendant can avoid a default
(1) by showing cause for not raising the claim on direct appeal and actual prejudice
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arising from the alleged error or (2) by demonstrating that he is actually innocent.
Lynn, 365 F.3d at 1225.
Winters’s Tenth Amendment claim is procedurally defaulted. Winters
contends that the statute under which he was convicted, 18 U.S.C. § 922(g)(1),
violates the Tenth Amendment because Winters “locally would have faced
[substantially] lower penalties than the present [federal] penalties he is now
suffering.” (Doc. 1 at 8) Winters failed to raise the Tenth Amendment argument on
direct appeal, and Winters identifies no exception to the procedural default rule.1
No procedural default bars Winters’s ineffective assistance claims. Massaro v.
United States, 538 U.S. 500, 509 (2003) (“failure to raise an ineffective-assistanceof-counsel claim on direct appeal does not bar the claim from being brought in a
later, appropriate proceeding under § 2255”). Nonetheless, Winters’s claims possess
no arguable merit.
Winters alleges that counsel rendered ineffective assistance by failing to
investigate Winters’s earlier state court felony convictions. For instance, with
respect to the conviction for attempted robbery, Winters asserts that his counsel
failed to interview the victim of the attempted robbery. Winters argues that a
thorough investigation would have revealed that he was guilty of mere “shoplifting”

1

Also, the Tenth Amendment claim is meritless. See United States v. Gibson, 615 F. App’x
619, 620 (11th Cir. 2015) (holding that 18 U.S.C. § 922(g)(1) is a valid exercise of Congress’s
Commerce Clause power and depends on the exercise of no power reserved to the states or the
people by the Tenth Amendment).
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and that counsel unreasonably failed to object to the incorrect facts in the presentence investigation report.2
The Armed Career Criminal Act (ACCA) imposes a fifteen-year mandatory
minimum sentence if a defendant is (1) convicted of possession of a firearm by a
convicted felon under 18 U.S.C. § 922(g) and (2) the defendant possesses “three
previous convictions . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another.” 18 U.S.C. § 924(e)(1); United
States v. Longoria, 874 F.3d 1278, 1281 (11th Cir. 2017). If a sentence is imposed
under the ACCA, a defendant enjoys no right in the same action to collaterally
attack the predicate felony convictions, Custis v. United States, 511 U.S. 485, 487
(1994), nor can a defendant challenge the predicate felony convictions through a
motion to vacate under 28 U.S.C. § 2255. Daniels v. United States, 532 U.S. 374, 382
(2001). An exception exists only when the earlier conviction is obtained in violation
of the right to counsel under Gideon v. Wainright. McCarthy v. United States, 320 F.3d
1230, 1232–33 (11th Cir. 2003).
Winters does not dispute that his criminal history includes three felony
convictions, and Winters raises no claim of deprivation of the right to counsel.

2

Winters further asserts that counsel’s performance violated both the Fourth Amendment
and the Fifth Amendment, but he identifies no specific facts to support those claims. Tejada v.
Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (holding that a petitioner is not entitled to an
evidentiary hearing “when his claims are merely conclusory allegations unsupported by specifics”)
(internal quotation marks omitted).
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Accordingly, Winters fails to demonstrate that counsel acted unreasonably by
declining to investigate or to challenge the earlier convictions. Cook v. Warden, Ga.
Diagnostic Prison, 677 F.3d 1133, 1139 (11th Cir. 2012) (holding that counsel was not
ineffective by failing to introduce irrelevant evidence).
Supplemental claims
Relying on Descamps v. United States, 570 U.S. 254 (2013) and United States v.
Castleman, 134 S. Ct. 1405 (2014), Winters attempts in his supplemental claims to
disqualify his felony convictions as ACCA predicate offenses. The government
persuasively argues that Winters’s supplemental claims are untimely.
The Anti-Terrorism and Effective Death Penalty Act creates for a motion to
vacate a one-year limitation, which runs from the latest of four specified dates. The
applicable limitation runs from “the date on which the judgment of conviction
becomes final,” 28 U.S.C. § 2255(f)(1), or from the date the Supreme Court first
recognizes a new right, 28 U.S.C. § 2244(f)(3).
Because Winters filed no direct appeal, his conviction was final in December,
2012, at the conclusion of the fourteen days for filing a notice of appeal. Fed. R.
App. P. 4(b)(1)(A); Adams v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir. 1999).
The one-year limitation expired in December, 2013. Winters’s supplemental claims,
which were not filed until 2014, are thus untimely under 28 U.S.C. § 2255(f)(1).
For a Supreme Court decision to refresh the limitation under Section
2255(f)(3), the decision must both (1) recognize a new right and (2) retroactively
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apply to cases on collateral review. Beeman v. United States, 871 F.3d 1215, 1219
(11th Cir. 2017). Descamps recognizes no new right because the Supreme Court
“merely clarified” existing precedent. Beeman, 871 F.3d at 1219 (quoting Mays v.
United States, 817 F.3d 728, 734 (11th Cir. 2016)). Similarly, Castleman applies
existing precedent and recognizes no new right. Castleman, 134 S. Ct. at 1410 (stating
that Johnson v. United States, 559 U.S. 133 (2010) “resolves this case in the
Government’s favor”).
As a result, Winters’s claims are untimely unless the claims “relate
back” to a claim raised in his initial motion to vacate. “[F]or an untimely § 2255
claim to ‘relate back’ under Rule 15(c), the untimely claim must have more in
common with the timely filed claim than the mere fact that they arose out of the
same trial and sentencing proceedings.” Davenport v. United States, 217 F.3d 1341,
1344 (11th Cir. 2000). The new claim must rise from the “same set of facts,” not
from separate conduct or a separate occurrence in “both time and type.” Davenport,
217 F.3d at 1344.
In the supplemental claims, Winters alleges that the statutes underlying his
earlier felony convictions fail to qualify as predicate offenses under the ACCA. In
particular, Winters argues that Section 893.13(1)(a), Florida Statutes, lacks the
requisite mens rea element and is not a “serious drug offense” within the meaning of
the ACCA, 18 U.S.C. § 924(e)(2)(A)(ii). Winters asserts that Section 812.13, Florida

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Statutes, is an overbroad, indivisible statute and is not a “violent felony” under the
ACCA, 18 U.S.C. § 924(e)(2)(B)(i).
By contrast, Winters’s initial claims raise no challenge under the ACCA. As
explained above, Winters challenges his counsel’s performance and asserts that
18 U.S.C. § 922(g)(1) unconstitutionally regulates local conduct. Winters’s
supplemental claims are therefore unrelated to the claims asserted in the original
motion.
Even if timely, Winters’s supplemental claims fail on the merits. Attempted
robbery in violation of Section 812.13, Florida Statutes, is categorically a “violent
felony” under the ACCA’s elements clause. United States v. Joyner, No. 16-17285,
___ F.3d ___, 2018 WL 1015765, at *9 (11th Cir. Feb. 22, 2018) (“Based on our
precedent, we conclude that Florida attempted robbery is categorically a violent
felony under the ACCA.”). Likewise, a drug offense in violation of Section
893.13(1)(a), Florida Statutes, qualifies as a “serious drug offense” under the ACCA.
Joyner, 2018 WL 1015765, at *7 n.4 (citing United States v. Smith, 775 F.3d 1262, 1268
(11th Cir. 2014)).
Conclusion
The motion to vacate (Doc. 1) is DENIED. Because Winters’s claims are
procedurally defaulted, untimely, and patently frivolous, Winters’s request for an
evidentiary hearing is DENIED. 28 U.S.C. § 2255(b); Griffith v. United States, 871

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F.3d 1321, 1329 (11th Cir. 2017). The clerk is directed to enter a judgment against
Winters and to CLOSE this case.
To merit a certificate of appealability, Winters must show that reasonable
jurists would find debatable both the merits of the underlying claims and the
procedural issues he seeks to raise. 28 U.S.C. § 2253(c)(2); Lambrix v. Sec’y, Fla. Dep’t
of Corrs., 851 F.3d 1158, 1169 (11th Cir. 2017). Because the motion to vacate is
plainly procedurally defaulted and untimely, and because Winters fails to show that
reasonable jurists would debate either the merits of the procedural issues or the
merits of the claims, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Winters must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 9, 2018.

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