Calderon v. United States of America

Filing 3

ORDER dismissing 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to close the civil case. Signed by Judge Susan C Bucklew on 5/31/2016. (ALK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANTHONY CALDERON,
Petitioner,

Civ. Case No.: 8:16-cv-1198-T-24TBM
Cr. Case No.: 8:11-cr-592-T-24TBM

vs.
UNITED STATES OF AMERICA,
Respondent.
__________________________/
ORDER
This cause comes before the Court on Petitioner Anthony Calderon’s pro-se motion to
vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255. (Civ. Dkt.
1; Cr. Dkt. 155). Because review of the motion and the file and records of the case conclusively
show that Petitioner is not entitled to relief, the Court will not cause notice thereof to be served
upon the United States but shall proceed to address the matter. 28 U.S.C. § 2255(b).
I.

BACKGROUND

On August 13, 2012, Petitioner pleaded guilty to counts 3 and 5 of the Second Superseding
Indictment for possession and brandishing one or more firearms in furtherance of a crime of
violence in violation of 18 U.S.C. § 924(c) and 2. (Cr. Dkts. 100, 101). On November 6, 2012,
this Court sentenced Petitioner to 84 months of incarceration as to Count Three and 300 months
of incarceration consecutive as to Count Five for a total of 384 months incarceration. (Cr. Dkt.
116). On December 3, 2012, the Court entered an Amended Final Judgment, under which
Petitioner was still ordered to serve 384 months total incarceration time. (Cr. Dkt. 129). Petitioner
was not sentenced under the Armed Career Criminal Act (ACCA). Petitioner did not file a direct
appeal.

On May 13, 2016, Petitioner filed the instant § 2255 motion. (Civ. Dkt. 1; Crim. Dkt. 155).
Petitioner argues that the recent United States Supreme Court decision in Johnson v. United States,
135 S.Ct. 2551 (2015), in which the Supreme Court held that imposing an increased sentence under
the residual clause of the ACCA violates due process, affords him relief.
II.

PETITIONER’S MOTION IS UNTIMELY
The Antiterrorism and Effective Death Penalty Act of 1996 established a one-year statute

of limitations for filing a § 2255 motion. Lopez v. United States, 512 F. App'x 1001, 1003 (11th
Cir. 2013) (citing 28 U.S.C. § 2255(f)). The one-year period runs from the latest of the following
four events:
(1)

the date on which the judgment of conviction becomes final;

(2)
the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed, if the movant
was prevented from making a motion by such governmental action;
(3)
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 on collateral review; or
(4)
the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4). Petitioner’s § 2255 motion is dated May 10, 2016, and it is deemed to
have been filed on that date. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001)
(explaining that a prisoner’s § 2255 motion is considered filed on the date it is delivered to prison
authorities for mailing which, absent evidence to the contrary, is presumed to be the date the
prisoner signed it).
A.

Timeliness Under § 2255(f)(1)
Under § 2255(f)(1), “when a defendant does not appeal his conviction or sentence, the

judgment of conviction becomes final when the time for seeking that review expires.” Murphy v.
2

United States, 634 F.3d 1303, 1307 (11th Cir. 2011). Under the Federal Rules of Appellate
Procedure, a criminal defendant’s “notice of appeal must be filed in the district court within 14
days after . . . the entry of either the judgment or the order being appealed” and “[a] judgment or
order is entered for purposes of . . . Rule 4(b) when it is entered on the criminal docket.” Fed. R.
App. P. 4(b)(1)(A)(i) and (b)(6).
The Court entered the amended judgment on December 3, 2012. (Cr. Dkt. 129). Petitioner
did not file a direct appeal, and his judgment of conviction became final on December 17, 2012
when the 14 day period to file a notice of appeal expired. Under § 2255(f)(1), Petitioner had until
December 17, 2013 to file a § 2255 motion. Petitioner’s § 2255 motion was filed on May 10,
2016, and Petitioner therefore cannot rely on § 2255(f)(1) to establish the timeliness of his motion.
B.

Timeliness Under § 2255(f)(3)

Petitioner asserts that his § 2255 motion is timely because it asserts a right to relief based
on the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which was
decided on June 26, 2015. Under § 2255(f)(3), a § 2255 motion can be filed within one year of
“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 on collateral
review.” Thus, Petitioner’s motion, filed on May 10, 2016, would be timely if Johnson falls within
the parameters of § 2255(f)(3).
However, Petitioner is afforded no relief because Petitioner was not sentenced under the
ACCA and thus, Johnson is not applicable to Petitioner’s claims.
III.

CONCLUSION

Petitioner’s motion is is untimely under § 2255(f)(1) because it was filed more than one
year after his judgment of conviction became final, and Petitioner cannot rely on Johnson to

3

establish the timeliness of his motion under § 2255(f)(3). Accordingly, Petitioner’s § 2255 motion
(Civ. Dkt 1; Cr. Dkt. 155) is DISMISSED as untimely.
The Clerk is directed to close the civil case.
CERTIFICATE OF APPEALABILITY AND
LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHERED ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district
court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district 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, this 31st day of May, 2016.

Copies to:
Pro Se Petitioner

4