Hawkins v. United States of America

Filing 4

ORDER denying 1 --motion to vacate/set aside/correct sentence (2255); denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER JUDGMENT against Hawkins and to CLOSE the case. Signed by Judge Steven D. Merryday on 6/30/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

CASE NO. 8:07-cr-345-T-23TBM
8:17-cv-1281-T-23TBM

DONIELLE LAVONTE HAWKINS
/

ORDER
Under the terms of his plea agreement, Hawkins was convicted of one count of
conspiracy to possess with the intent to distribute five grams or more of cocaine base,
for which he is imprisoned for 188 months. Hawkins moves under 28 U.S.C. § 2255
(Doc. 1) to vacate and challenges the validity of his sentence. Hawkins’s motion is
untimely.
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 (finding the summary dismissal of a Section 2255 motion
was proper “[b]ecause in this case the record, uncontradicted by [defendant], shows

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Unless later superseded by Eleventh Circuit precedent, a Fifth Circuit decision issued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).

that he is not entitled to relief”); Hart v. United States, 565 F.2d 360, 361 (5th Cir.
1978) (“Rule 4(b) [Rules Governing § 2255 Proceedings], 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 exhibits and the prior proceedings in the case
that the movant is not entitled to relief . . . .’”). See United States v. Deal, 678 F.2d
1062, 1065 (11th Cir. 1982) (citing Wright and Hart).
Hawkins’s motion is time-barred. See Day v. McDonough, 547 U.S. 198,
209 (2006) (“[W]e hold that district courts are permitted . . . to consider, sua sponte,
the timeliness of a state prisoner’s habeas petition.”), and Jackson v. Sec’y, Dep’t of
Corr., 292 F.3d 1347, 1349 (11th Cir. 2002) (holding that the district court possesses
discretion to sua sponte question the timeliness of a petition for the writ of habeas
corpus).
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 . . . the date on which the
judgment of conviction becomes final . . . .” 28 U.S.C. § 2255(f)(1). Hawkins’s
judgment was entered and became final in 2008. As a consequence, Hawkins’s
one-year limitation expired in 2009. Hawkins’s motion to vacate is dated May 22,
2017, which is nearly eight years late.
In addition to a limitation from the date the conviction becomes final, Section
2255(f) establishing a one-year limitation from three more dates:

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(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 to
cases 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.

New Limitation Under Section 2255(f)(3):
Hawkins asserts entitlement to a limitation under Section 2255(f)(3), which
calculates a one-year limitation 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
. . . .” Hawkins contends that Mathis v. United States, 136 S. Ct. 2243 (2016), affords
him a new limitation under Section 2254(f)(3).
Hawkins pleaded guilty to conspiracy to possess with the intent to distribute
five grams or more of cocaine base. Because he has two prior qualifying drug
convictions, Hawkins qualifies as an armed career offender under Section 4B1.4,
United States Sentencing Guidelines. Hawkins scored an Offense Level 23 (after a
three-level reduction for acceptance of responsibility). Hawkins’s prior convictions
earned him eight points, which placed him in Criminal History Category IV.
However, Hawkins’s two prior drug convictions qualify him as a criminal offender
under Section 4B1.1, which enhanced him to Criminal History Category VI. The
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pertinent prior convictions are (1) the sale or delivery of cocaine in Manatee County,
Florida, which offense occurred in 2005, and (2) the possession of cocaine with the
intent to sell or deliver in Manatee County, Florida, which offense occurred in 2006.
(Presentence Investigation Report at 10–11) Based on this computation of a
Criminal Offense Level 23 and a Criminal History Category VI, Hawkins faced a
mandatory minimum sentence of imprisonment for 60 months, an advisory guideline
maximum of 235 months, and a statutory maximum of 480 months (40 years).
Hawkins’s sentence of 188 months is the low end of the advisory guideline range.
Hawkins contends (1) that his sentence is unlawful under Descamps v. United
States, 133 S. Ct. 2276, 2282 (2013), which holds that, in determining whether a prior
conviction qualifies to support an enhanced sentence under the Armed Career
Criminal Act (“ACCA”), “sentencing courts may not apply the modified categorical
approach when the crime of which the defendant was convicted has a single,
indivisible set of elements” and (2) that his sentence is unlawful under Mathis, which
governs an offense’s qualification as a “violent felony” under the ACCA. Hawkins
serves a career offender sentence imposed under the advisory sentencing guidelines.
Beckles v. United States, 137 S. Ct. 886, 895 (2017), explains that a sentence under “the
advisory Sentencing Guidelines [is] not subject to” the same constitutional challenges
as a sentence under the ACCA. As a consequence, Descamps and Mathis are
inapplicable.

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Under the terms of the plea agreement, Hawkins waived the right to challenge
the computation of his sentence. Even if he had not waived this right and even if
Mathis was applicable, Hawkins would not gain a new limitation under Section
2254(f)(3) to challenge the computation of his sentence because “Mathis did not
announce a ‘new rule of constitutional law.’” In re Orestes Hernandez, 857 F.3d 1162,
1164 (11th Cir. 2017).
New Limitation Under Sections 2255(f)(2) and (4):
Hawkins argues that Mathis reversed the controlling precedent within the
Eleventh Circuit. He asserts entitlement to a limitation (1) under Section 2255(f)(2)
because the controlling precedent was an “impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United States” and

(2) under Section 2255(f)(4) because the controlling precedent is a new fact
“supporting the claim or claims presented [that] could [not] have been discovered
through the exercise of due diligence.” (Doc. 2 at 4–5) First, controlling precedent is
not an “impediment” that is “in violation of the Constitution or laws,” as required
under Section 2255(f)(2), even though the precedent is subsequently overturned.
Cf. Smith v. Jones, 256 F.3d 1135, 1145–46 (11th Cir. 2001), cert. denied, 534 U.S. 1136
(2002) (observing that “[i]t might be difficult to fit within th[e] definition [for cause to
overcome a procedural default] a subsequently overruled circuit decision that did not
actually ‘impede’ the effort to comply with any state court rule, but instead removed
an incentive for compliance by indicating (erroneously) that a particular action was

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not necessary for federal habeas review purposes,” and holding that reliance on
circuit precedent is neither cause to excuse a procedural default nor cause for failing
to comply with the subsequently determined need to seek discretionary review to
fully exhaust available state court remedies). Second, the overturning of controlling
precedent is not a new fact, as required under Section 2255(f)(4), that supports the
underlying claim. Bazemore v. United States, 595 Fed. App’x 869, 873 (11th Cir. 2014)
(“Stewart [v. United States, 646 F.3d 856 (11th Cir. 2011)] is not a new fact for the
purposes of timeliness under § 2255(f)(4). The plain language of the statute refers to
‘facts,’ and the Stewart decision is a legal opinion, not a new fact.”); Madaio v. United
States, 397 Fed. App’x 568, 570 (11th Cir. 2010) (“Section 2255(f)(4) is predicated on
the date that “facts supporting the claim” could have been discovered, the discovery
of a new court legal opinion, as opposed to new factual information affecting the
claim, does not trigger the limitations period.”). As a consequence, Hawkins is
entitled to a limitation under neither Section 2255(f)(2) nor Section 2255(f)(4).
Failure to Appeal:
Lastly, in his supporting memorandum Hawkins discusses the law regarding
an attorney’s failure to appeal, but Hawkins neither alleges that he directed counsel
to appeal nor asserts that counsel failed to consult him about appealing. (Doc. 2 at 6)
Under the terms of the plea agreement, Hawkins “expressly waives the right to
appeal defendant’s sentence or to challenge it collaterally, including the filing of a
28 U.S.C. § 2255 petition, on any ground, including the ground that the Court erred

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in determining the applicable guidelines range” except under certain inapplicable
exceptions. (Doc. 21 at 12 in 07-cr-345) Hawkins waived the present challenge to
the calculation of his sentence. “When a valid sentence-appeal waiver containing
express language waiving the right to attack a sentence collaterally is entered into
knowingly and voluntarily, it will be enforceable and serve to prevent a movant from
collaterally attacking a sentence on the basis of ineffective assistance of counsel.”
Thompson v. United States, 353 Fed. App’x 234, 235 (11th Cir. 2009) (per curiam).
The circumstances of Hawkins’s plea are factually indistinguishable from
Otero v. United States, 499 F.3d 1267 (11th Cir. 2007). Otero’s plea agreement
contained an appeal waiver identical to Hawkins’s.2 Otero, 499 F.3d at 1269,
“conclude[d] that Otero’s trial lawyer had no constitutional duty to consult Otero
about an appeal and thus did not render constitutionally ineffective assistance by
failing to do so.” This conclusion was because “under the circumstances of this case,
[there was] no constitutional duty to consult in the first place.” Otero, 499 F.3d at
1269 n.1. The plea agreement and the appeal waiver weigh heavily in the
government’s favor, as Otero, 499 F.3d at 1271, explains:
In answering the question of whether a rational defendant
would want to appeal his sentence, it is relevant to ask whether
there are any potential non-frivolous grounds for appeal,
whether there was a guilty plea, and whether the plea expressly
waived the right to appeal. See Flores-Ortega, id. at 480,
120 S. Ct. at 1036. All those factors weigh heavily in favor of
the government in this case. The plea agreement signed by
Otero contained a typical appeal-waiver provision, pursuant to
2

Both Otero’s and Hawkins’s prosecutions originated in the Tampa Division of the Middle
District of Florida.
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which Otero “expressly waived the right to appeal his sentence,
directly or collaterally, on any ground.” This broad waiver
contained four exceptions. Those exceptions allowed Otero to
appeal (1) “an upward departure by the sentencing judge,”
(2) “a sentence above the statutory maximum,” (3) “a sentence
in violation of the law apart from sentencing guidelines,” or
(4) any sentence if the Government appealed. Otero does not
argue that any of these exceptions apply in this case. Therefore,
on account of the plea agreement’s broad appeal waiver, any
appeal taken by Otero would have been frivolous and would
have been an appeal that no rational defendant would have
taken.

Considering the similarity with Otero, Hawkins’s claim fails “[b]ecause no
rational defendant in [his] position would have sought to appeal in light of the broad
appeal waiver, and because [he] did not communicate to his lawyer a desire to
appeal, [his] lawyer was not under a constitutional obligation to consult [him] about
an appeal.” Otero, 499 F.3d at 1271. See also Devine v. United States, 520 F.3d 1286,
1288–89 (11th Cir. 2008) (affirming the district court’s determination that “no
rational defendant would want to appeal” because the sentence “was at the bottom of
the guidelines” and the defendant’s plea agreement included the standard appeal
waiver); Cuero v. United States, 269 Fed. App’x 893, 895 (11th Cir. 2008) (“[E]ven if
counsel insufficiently consulted with Cuero, it did not amount to ineffective
assistance of counsel” because “trial counsel did not have a constitutional duty to
consult with Cuero about an appeal.”). As stated earlier, Hawkins 188-month
sentence is the low end of the advisory guideline range. Absent the benefits of the
plea agreement, including the standard appeal waiver, Hawkins faced a guideline
maximum of 235 months and a statutory maximum of 480 months (40 years).

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Concluson:
Hawkins’s motion to vacate is untimely under each one-year limitation under
Section 2255(f), and the cases on which he relies are inapplicable to his sentence
under the advisory sentencing guidelines.
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The clerk must enter a judgment against Hawkins, close this case, and
enter a copy of this order in the criminal action.

DENIAL OF BOTH A
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Hawkins is not entitled to a certificate of appealability (“COA”). A prisoner
moving under Section 2255 has no absolute entitlement to appeal a district court’s
denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must
first issue a COA. Section 2253(c)(2) permits issuing a COA “only if the applicant
has made a substantial showing of the denial of a constitutional right.” To merit a
certificate of appealability, Hawkins 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 motion to
vacate is clearly time-barred, Hawkins is entitled to neither a certificate of
appealability nor an appeal in forma pauperis.

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Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Hawkins must obtain authorization from the circuit court
to appeal in forma pauperis.
ORDERED in Tampa, Florida, on June 30, 2017.

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