Davis v. USA

Filing 7

ORDER: Respondent's Motion to Dismiss as Time-Barred Davis's Motion to Vacate, Set Aside, or Correct Sentence, Pursuant to 28 U.S.C. § 2255 (CV Dkt. #5) is GRANTED. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §2255 (CV Dkt. #1) is DISMISSED with prejudice as time-barred. The Clerk is directed to enter judgment of dismissal with prejudice for Respondent, United States of America, and close this case. The Clerk is directed to terminate from pending status the motion to vacate found at Dkt. #46, in the underlying criminal case, case number 8:10-cr-362-T-30EAJ. 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 2/9/2015. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JAMES LEE DAVIS,
Petitioner,
v.

CASE NO: 8:14-cv-2021-T-30EAJ
Crim. Case No: 8:10-cr-362-T-30EAJ

UNITED STATES OF AMERICA,
Respondent.
________________________________/
ORDER
THIS CAUSE comes before the Court upon Respondent’s Motion to Dismiss as
Time-Barred Davis’s Motion to Vacate, Set Aside, or Correct Sentence, Pursuant to 28
U.S.C. § 2255 (CV Dkt. #5), filed December 22, 2014. Petitioner did not file a response to
the motion. Upon review, the Court concludes that Petitioner’s claims are time-barred and
Respondent’s motion to dismiss should be granted.
BACKGROUND
On August 31, 2010, Petitioner was charged with being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (CR Dkt. #10). Pursuant to
a negotiated plea agreement, Petitioner pleaded guilty (CR Dkt. #18, #20, and #23). On
October 25, 2011, the Court sentenced Petitioner to 200 months in prison followed by 60
months of supervised release (CR Dkt. #43-44). Petitioner did not appeal his judgment and
sentence. On August 19, 2014, Petitioner filed the instant motion, raising the following
grounds for relief:
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1.

His sentence was improperly enhanced under the Armed Career Criminal Act
(“ACCA”) because, under Florida law, he only had one prior conviction for a violent
felony offense, as opposed to the three prior convictions required for the ACCA
enhancement.

2.

His due process rights were violated because his sentencing guidelines were
erroneously calculated.

3.

His counsel was ineffective for failing to previously raise the issues alleged in
Grounds One and Two.
DISCUSSION
In his motion, Petitioner raises three interrelated claims. First, he contends that his

sentence was improperly enhanced under the ACCA. Specifically, he argues that the Court
improperly considered his Florida armed robbery convictions as three separate convictions
for purposes of the ACCA enhancement because, under Florida law, “convictions and
sentences are considered a single offense and consolidated when they are imposed on the
same day, by the same judge, using the same score sheet, and made to run concurrently.”
Accordingly, he posits that his three armed robbery convictions, which were consolidated
at the time of adjudication and sentencing, qualify as a single violent felony offense,
insufficient to enhance his sentence under the ACCA.
Second, Petitioner alleges that his due process rights were violated because his
presentence investigation report, which the Court relied on at sentencing, erroneously
calculated the recommended sentence. Petitioner’s argument is two-fold: first, he contends
that he should not have been assessed points for the ACCA enhancement because, as he
laid out in his first ground for relief, he is ineligible for it; second, he asserts that his prior
convictions were erroneously used to determine both his base offense level and his criminal

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history category. In his third ground for relief, Petitioner alleges that his counsel was
ineffective for failing to preserve the issues highlighted in his first two claims for appellate
review and for failing to raise the issues on appeal. Without reaching the merits of
Petitioner’s claims, the Court concludes that his motion is time-barred and he is not entitled
to relief.
The Antiterrorism and Effective Death Penalty Act imposes a one-year statute of
limitations on claims brought under § 2255. See Outler v. United States, 485 F.3d 1273,
1278 (11th Cir. 2007). Typically, federal habeas petitioners have one year from when their
conviction becomes final to file their § 2255 claims in federal court. See § 2255(f)(1).
Petitioner concedes that, under this principle, the instant motion is untimely. See Murphy
v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) (“[W]hen a defendant does not
appeal his conviction or sentence, the judgment of conviction becomes final when the time
for seeking that review expires.” However, Petitioner argues that § 2255(f)(3) provides him
an avenue of relief. 1
Under section 2255(f)(3), the one-year statute of limitations does not expire until
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.” Petitioner theorizes that, in light of the

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Petitioner additionally asserts that § 2255(f)(4) applies. This subsection grants petitioners an additional one year to
file a § 2255 motion from “the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.” However, Petitioner makes no argument in support of this assertion,
and the Court notes that he alleges no new facts that give rise to his claim. He simply alleges a change in the law.
Thus, the Court concludes that statute of limitations in § 2254(f)(4) is inapplicable.

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retroactivity of the Supreme Court’s decisions in Johnson v. United States, 559 U.S. 133
(2010), and Descamps v. United States, 133 S. Ct. 2276 (2013), his claims are not
time-barred. Petitioner is mistaken.
The rule of law Petitioner believes retroactively applies to his claims is that federal
courts must defer to the state courts’ determinations respecting the manner in which
convictions and sentences are imposed when evaluating whether the defendant’s prior
convictions qualify as ACCA predicate offenses. Petitioner believes the Court failed to do
so when it determined that his “consolidated” Florida armed robbery convictions qualified
as three separate violent felony offenses, subjecting his sentence to enhancement under the
ACCA.
However, even under § 2255(f)(3), Petitioner’s claims are untimely. The statute of
limitations under § 2255(f)(3) “begins to run on the date which the right asserted was
initially recognized by the Supreme Court.” Dodd v. United States, 365 F.3d 1273, 1279
(11th Cir. 2004). Both of the cases Petitioner leans on were decided more than a year before
he filed the instant motion, on August 19, 2014: Johnson issued on March 2, 2010—even
before Petitioner was sentenced, and Descamps issued on June 20, 2013. See Johnson, 559
U.S. 133; Descamps, 133 S. Ct. 2276. Accordingly, even if Petitioner has legitimate claims
under these two cases, the statute of limitations created by § 2255(f)(3) expired before he
filed this motion, and Petitioner’s claims are time-barred.
In addition to being untimely for purposes of § 2255(f)(3), the claims Petitioner
brings do not derive from rights created by the Supreme Court in Johnson and Descamps.
While the Johnson court noted that a federal court must defer to state law when determining
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whether a defendant’s prior convictions qualify as ACCA predicate offenses, it did not
create this right. See Johnson, 559 U.S. at 138 (citing Johnson v. Fankell, 520 U.S. 911,
916 (1997), for the proposition that the Court is bound by the state court’s interpretation of
state law when determining whether an offense qualifies as a violent felony under the
ACCA). Rather, Johnson determined, more specifically, that prior state convictions must
involve violent force capable of causing physical pain or injury to qualify as ACCA
predicate offenses. See Johnson, 559 U.S. at 140. Petitioner does not contend that his prior
armed robbery convictions did not involve violent force of this nature; therefore, his claims
do not arise from the right created by Johnson.
Similarly, the holding of Descamps is unrelated to the gist of Petitioner’s claims. In
Descamps, the Supreme Court held that when determining whether a defendant’s prior
convictions qualify as ACCA predicate offenses, if the defendant’s prior convictions
originate in an “indivisible statute,” one not containing alternative elements, “[s]entencing
courts may ‘look only to the statutory definitions’—i.e. the elements—of a defendant’s
prior offenses, and “not to the particular facts underlying those convictions.” Id. (quoting
Taylor v. United States, 495 U.S. 575 (1990)). Descamps, 133 S. Ct. at 2283. Petitioner
does not allege that, under Descamps, the Court improperly looked beyond the statutory
definitions to determine whether his prior convictions qualified as ACCA predicate
offenses because he was convicted under an indivisible statute. Petitioner’s belief that
Descamps created a newly recognized right retroactively applicable to his case is
unfounded.

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Thus, the Court concludes that (1) even if Petitioner had a legitimate claim under
Johnson and Descamps, the § 2255(f)(3) statute of limitations expired before he filed this
motion, (2) Petitioner has not established that the right he asserts arises from Johnson and
Descamps and is retroactively applicable to his claims, so § 2255(f)(3) is not controlling,
and (3) under § 2255(f)(1), the statute of limitations on Petitioner’s claims expired one year
after his conviction and sentence became final, approximately 19 months before he filed
the instant motion.
CONCLUSION
It is therefore ORDERED AND ADJUDGED that:
1.

Respondent’s Motion to Dismiss as Time-Barred Davis’s Motion to Vacate,

Set Aside, or Correct Sentence, Pursuant to 28 U.S.C. § 2255 (CV Dkt. #5) is GRANTED.
2.

Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28

U.S.C. §2255 (CV Dkt. #1) is DISMISSED with prejudice as time-barred.
3.

The Clerk is directed to enter judgment of dismissal with prejudice for

Respondent, United States of America, and close this case.
4.

The Clerk is directed to terminate from pending status the motion to vacate

found at Dkt. #46, in the underlying criminal case, case number 8:10-cr-362-T-30EAJ.
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 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

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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 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 at Tampa, Florida on this 9th day of February, 2015.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-2021 deny 2255.docx

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