Taylor v. USA

Filing 2

ORDER: The motion of Brian Eugene Taylor for habeas corpus relief pursuant to 28 U.S.C. § 2255 1 is DISMISSED. Any pending motions are denied as moot. The Clerk is directed to close this case. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 10/29/2014. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BRIAN EUGENE TAYLOR,
Plaintiff,
v.

Case No: 8:14-cv-1952-T-30TBM

UNITED STATES OF AMERICA,
Defendant.

ORDER OF DISMISSAL
THIS CAUSE is before the Court upon the motion of Brian Eugene Taylor for
habeas corpus relief pursuant to 28 U.S.C. § 2255 (Dkt. #1). A review of the motion
reveals that no response is needed from the Government because the motion is untimely.
In his motion, Taylor acknowledges that he was sentenced on December 18, 2007,
and did not file a direct appeal. He filed the instant motion on August 13, 2014, clearly
more than one year after his judgment of conviction became final. Taylor contends his
motion is timely because it was filed within one year of a Supreme Court ruling which he
claims applies retroactively:
The petitioner’s motion is timely given the fact that he filed his motion within
one year of the Eleventh Circuit’s ruling accepting and applying the rulings
in Johnson v. U.S., 130 S.Ct. 1265 (2010) and Descamps v. U.S., 133 S.Ct.
2276 (2013), and when discovering the application of the cases to his own
case. The rulings in Johnson and Descamps has (sic) been ruled to apply
retroactively, and the petitioner brings to the court’s attention that if the issue
of retroactively arises, such is clarified.
Paragraph 18 of Petition, p. 12, Dkt. #1.

Taylor is mistaken. First, Johnson was decided in 2010 and Descamps was decided
June 20, 2013. Taylor’s motion, filed on August 13, 2014, was not filed within one year
of either Johnson or Descamps.
Second, Descamps was decided in the context of a direct appeal, and the Supreme
Court has not declared its decision in Descamps to be retroactively applicable on collateral
review, either within the opinion itself or in a later ruling. See Wilson v. Warden, FCC
Coleman, F. App'x, 2014 U.S. App. LEXIS 16989, 2014 WL 4345685, at *3 (11th Cir.
Sept. 3, 2014). Moreover, the Supreme Court adopted the categorical approach to
reviewing prior convictions as far back as 1990. See Descamps, 133 S. Ct. at 2283 (citing
Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990)),
and the modified categorical approach developed [*7] by Taylor and related decisions was
acknowledged in 2009. See Descamps, 133 S. Ct. at 2284-85 (citing Nijhawan v. Holder,
557 U.S. 29, 35, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009)). The Eleventh Circuit has
stated that the Descamps ruling merely "clarif[ies] the proper analytical approach for
determining whether a defendant's sentence should be enhanced." United States v.
Ramirez-Flores, 743 F.3d 816, 820 (11th Cir. 2014).
Thus, because the Descamps ruling neither recognizes a new right nor applies
retroactively on collateral review, Petitioner's motion to vacate his sentence is not timely
under 28 U.S.C. § 2255(f)(3).
Third, since Petitioner did not directly appeal this issue, it is procedurally defaulted.
"[A] collateral challenge may not do service for an appeal." United States v. Frady, 456

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U.S. 152, 165, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982). "Once the defendant's chance to
appeal has been waived or exhausted," courts "are entitled to presume [*13] that [the
defendant] stands fairly and finally convicted." Id. at 164. As a result, claims that
previously were available yet were not raised in a prior proceeding are procedurally
defaulted and ordinarily are barred from consideration on collateral review. Bousley v.
United States, 523 U.S. 614, 622-24, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998).
The exceptions to procedural default do not apply to the present case. The only
exceptions to the procedural default rule are: "(1) for cause and prejudice, or (2) for
miscarriage of justice, or actual innocence." McKay v. United States, 657 F.3d 1190, 1196
(11th Cir. 2011), cert. denied, 133 S. Ct. 112, 184 L. Ed. 2d 52 (2012). Petitioner does
not suggest that either exception applies to him.
It is therefore ORDERED AND ADJUDGED as follows:
1.

The motion of Brian Eugene Taylor for habeas corpus relief pursuant to 28

U.S.C. § 2255 (Dkt. #1) is DISMISSED.
2.

Any pending motions are denied as moot.

3.

The Clerk is directed to close this case.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. 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 a certificate of appealability. Id. “A certificate of appealability may

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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 Slack v. 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.
DONE and ORDERED in Tampa, Florida, this 29th day of October, 2014.

Copies furnished to:
Counsel/Parties of Record
F:\Docs\2014\14-cv-1952 dismiss 2255.docx

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