Bennett v. United States of America

Filing 15

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Bennett's 1 Motion to Vacate/Set Aside/Correct Sentence, DIRECT the Clerk to CLOSE this case, and DENY Bennett a Certificate of Appealability and in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 9/11/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/28/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

ALEX BENNETT,
Movant,

CIVIL ACTION NO.: 2:16-cv-33

v.
UNITED STATES OF AMERICA,

(Case No. 2:12-cr-5)

Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Alex Bennett (“Alex Bennett”), who is currently incarcerated at the Federal Correctional
Complex in Yazoo City, Mississippi, filed a Motion to Vacate, Set Aside, or Correct his
Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) For the reasons which follow, the Court
DENIES Bennett’s Motions to Amend/Supplement.

(Docs. 5, 8, 12.)

Moreover, I

RECOMMEND this Court DENY Bennett’s Motion to Vacate, Set Aside, or Correct his
Sentence, DIRECT the Clerk of Court to CLOSE this case, and DENY Bennett a Certificate of
Appealability and in forma pauperis status on appeal.
BACKGROUND
After entry of a guilty plea, Bennett was convicted of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). J., United States v. Bennett,
2:12-cr-5 (S.D. Ga. Mar. 1, 2013), ECF No. 42. The Honorable Lisa Godbey Wood sentenced
Bennett to 180 months’ imprisonment. Id. Bennett’s sentence was calculated based on his
designation as an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. §
924(e) (“ACCA”), due to his four prior convictions for robbery, robbery by sudden snatching

(“RBSS”), sale of cocaine, and sale of marijuana. (Pre-Sentence Investigation Report (“PSI”),
¶¶ 22, 26–27, 30, 31, 36.) Bennett did not file an appeal. On February 29, 2016, Bennett filed
this Section 2255 Motion contending that he should be resentenced in light of the United States
Supreme Court’s decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (June 26,
2015). (Doc. 1.)
DISCUSSION
Bennett asserts that his sentence was improperly enhanced after the Supreme Court’s
decision in Johnson. Specifically, Bennett argues that his conviction for RBSS is no longer a
predicate violent felony because it falls under the ACCA’s residual clause. (Doc. 1, p. 4.) The
Government argues that, although Bennett’s RBSS offense is no longer a predicate violent felony
after Johnson, Bennett still qualifies as an armed career criminal based on his three separate
convictions for robbery and serious drug offenses. (Doc. 3, p. 3.) The Government provided
Shepard documents to support this contention. 1
Bennett then filed a Motion to Amend/Supplement his Section 2255 Motion to include
arguments that his drug convictions are not predicate ACCA offenses and that his attorney
rendered ineffective assistance of counsel for not investigating those drug convictions. (Doc. 5.)
The Government filed a Response, urging the Court to deny Bennett’s Motions due to the
untimeliness of his claims. (Doc. 10.)
I.

Whether Bennett is Entitled to Relief Pursuant to Johnson
Under the ACCA, any person who violates 18 U.S.C. § 922(g) and has on three or more

occasions been convicted for a “serious drug offense” or “violent felony” will receive a
1

“[A] later court determining the character of [a previous conviction] is generally limited to examining
the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544
U.S. 13, 16 (2005). These types of documents are commonly referred to as “Shepard documents.”

2

mandatory minimum sentence of fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). “Serious
drug offense” means “an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance . . . for which a
maximum term of imprisonment of ten years or more is prescribed by law[.]” 18 U.S.C.
§ 924(e)(2)(A)(ii). In Johnson, the Supreme Court explained that the ACCA:
defines ‘violent felony’ as follows: ‘any crime punishable by imprisonment for a
term exceeding one year . . . that—‘(i) has as an element the use, attempted use,
or threatened use of physical force against the person of another; or (ii) is
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.’
§ 924(e)(2)(B) (emphasis added). The closing words of this definition, italicized
above, have come to be known as the Act’s residual clause.
___ U.S. at ___, 135 S. Ct. at 2555–56. The Court held that “imposing an increased sentence
under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee
of due process[.]” ___ U.S. at ___, 135 S. Ct. at 2563. However, the Court also emphasized that
its “decision does not call into question application of the Act to the four enumerated offenses, or
the remainder of the Act’s definition of a violent felony.” Id.
A. RBSS Conviction
Bennett argues that, because his RBSS conviction was considered a violent felony under
the ACCA’s now-defunct residual clause, the Government can no longer use this conviction to
categorize him as an armed career criminal. (Doc. 1, p. 4.) The Government concedes that
Bennett’s RBSS conviction no longer qualifies as an ACCA predicate violent felony after the
Supreme Court’s decision in Johnson. (Doc. 3, p. 3); see also United States v. Johnson, 572 F.
App’x 833, 835 (11th Cir. 2014) (“[W]e have held that ‘robbery by sudden snatching’ is a
‘violent felony’ under the residual clause of the ACCA.”) (citing United States v. Welch, 683
F.3d 1304, 1312–13 (11th Cir. 2012).

3

However, even without the RBSS conviction, Bennett still qualifies as an armed career
criminal, and his sentence enhancement is still applicable. As his PSI makes clear, the Court
also considered Bennett’s convictions for robbery and sales of marijuana and cocaine in
determining his armed career criminal status. (PSI, ¶¶ 22, 27, 31.)
B.

Robbery Conviction

Although Bennett challenges his RBSS conviction throughout the bulk of his Section
2255 Motion, he briefly argues that his “robbery by force [conviction] falls in the similar kind of
definition of the residual clause[.]” (Doc. 1, p. 18.) However, Bennett’s robbery conviction
categorically qualifies as a violent felony under the “elements clause” of the ACCA. A violent
felony under subsection (i), or the “elements clause,” of the ACCA “has as an element the use,
attempted use, or threatened use of physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B)(i).
At the time of Bennett’s offense, the Georgia statute for robbery provided that:
A person commits the offense of robbery when, with intent to commit theft, he
takes property of another from the person or the immediate presence of another:
(1) By use of force;
(2) By intimidation, by the use of threat or coercion, or by placing such
person in fear of immediate serious bodily injury to himself or to
another; or
(3) By sudden snatching.
O.C.G.A. § 16-8-40(a). The Shepard documents for Bennett’s robbery conviction, specifically
the indictment, indicate that he was charged under the “use of force” provision and not the
“intimidation” provision, as Bennett argues. 2 (Doc. 3-1, p. 2.) Under Georgia law, robbery by

2

Bennett is also under the misconception that “robbery by force can be committed by intimidation only.”
(Doc. 1, p. 18.) However, as the Georgia statute makes clear, robbery by use of force and robbery by
intimidation are separate and distinct crimes. O.C.G.A. §§ 16-8-40(a)(1) & (2).
4

use of force requires “actual force . . . . consist[ing] in personal violence or that degree of force
that is necessary to remove articles so attached to the person or clothing as to create resistance,
however slight.” Bellamy v. State, 750 S.E.2d 395, 396 (Ga. Ct. App. 2013). This language
directly parallels the language in the elements clause definition of a violent felony under the
ACCA.
Thus, because Bennett’s robbery conviction qualifies as a violent felony under the
elements clause of the ACCA, it remains undisturbed by the Supreme Court’s decision in
Johnson. See Johnson, ___ U.S. at ___, 135 S. Ct. at 2563 (“[Johnson] decision does not call
into question application of the Act to . . . the remainder of the Act’s definition of a violent
felony.”).
B.

Drug Offense Convictions

Bennett also attempts to challenge his drug offense convictions through his various
Motions to Amend/Supplement. (Docs. 5, 8, 12.) Bennett argues that his two drug convictions
actually only qualify as one offense, (doc. 5), or alternatively, that neither of his drug convictions
qualify as “serious drug offenses” under the ACCA, (doc. 8). However, Bennett is precluded
from making these arguments due to their untimeliness.
Motions made pursuant to 28 U.S.C. § 2255 are subject to a one-year statute of
limitations period. 28 U.S.C. § 2255(f). This limitations period runs from the latest of:
(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 to cases on collateral review; or

5

(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
Id.
Bennett was sentenced to 180 months’ imprisonment on February 28, 2013, and the
Court’s final judgment was entered on March 1, 2013. Min. Entry & J., United States v. Bennett,
2:12-cr-5 (S.D. Ga. Feb. 28 and Mar. 1, 2013), ECF Nos. 41, 42. Bennett had fourteen (14)
days, or until March 15, 2013, to file a notice of appeal. Fed. R. App. P. 4(b)(1)(A)(i); Fed. R.
Civ. P. 6(a); Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) (noting that, when a
defendant does not appeal his conviction or sentence, the judgment of conviction becomes final
when the time for seeking that review expires). Because Bennett did not file an appeal, he had
until March 15, 2014, to file a timely Section 2255 motion. 28 U.S.C. § 2255(f)(1). However,
due to the Supreme Court’s retroactive decision in Johnson, Bennett had until June 26, 2016, to
file a motion challenging any violent felony classifications under the ACCA’s residual clause.
28 U.S.C. § 2255(f)(3). To be clear, this extended statute of limitations applied only to Bennett’s
Johnson claims and not toward any challenges to his serious drug offense convictions or his
robbery by force conviction. In re Rogers, 825 F.3d 1335, 1340 (11th Cir. 2016) (Convictions
under the ACCA’s elements and enumerated crimes clauses or as a serious drug offense “do[]
not ‘contain’ a Johnson claim.”).
Bennett executed his Section 2255 Motion on February 29, 2016—timely for his Johnson
claims, but nearly two years after the expiration of the applicable statute of limitations period for
his serious drug offense claims. Consequently, Bennett’s Motions to Amend/Supplement his
Section 2255 Motion to include challenges to his serious drug offense convictions are untimely
under Section 2255(f)(1). Townsend v. Crews, No. 14-24126-CIV, 2014 WL 6979646, at *6
(S.D. Fla. Dec. 9, 2014) (“The law is and always has been that a statute of limitations creates a

6

definitive deadline; a complaint or petition filed one day late . . . is untimely, just as if a year
late.”) (quoting Turner v. Singletary, 46 F. Supp. 2d 1238, 1240 (N.D. Fla. 1999)).
Although Bennett does not contend that the statute of limitations should be tolled, he
does argue that the limitations period should be defined by Section 2255(f)(4). (Doc. 11, p. 2
(“[T]he motion is timely one year from which the diligence was discovered.

And it was

discovered in November while assessing the law library[.]”).) However, Section 2255(f)(4)
specifically calls for discovery of the “facts supporting the claim” and not the legal issue.
28 U.S.C. § 2255(f)(4) (emphasis added). The facts underlying Bennett’s serious drug offenses
could have been “discovered” as soon as the final judgment was entered in this case on March 1,
2013, if not earlier. Bennett admitted during the sentencing hearing that he had viewed—and did
not object to—the PSI upon which his sentence was partially based. Sent. Hr’g., United States v.
Bennett, 2:12-cr-5 (S.D. Ga. Feb. 28, 2013). The PSI contained, inter alia, the convictions
qualifying Bennett for the ACCA sentence enhancement. Furthermore, Bennett fails to include,
in any of his pleadings, facts demonstrating his due diligence or circumstances preventing his
discovery of any facts underlying his claims, despite his due diligence. Thus, the statute of
limitations set forth in Section 2255(f)(4) is inapplicable to Bennett’s Section 2255 Motion.
Yet, even if Bennett’s challenge to his drug convictions were timely, the Shepard
documents surrounding his convictions reveal that his claims would still fail. As stated earlier, a
serious drug offense under the ACCA is, in relevant part, “an offense under State law, involving
manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled
substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by
law[.]” 18 U.S.C. § 924(e)(2)(A)(ii). Bennett’s sale of cocaine and marijuana unequivocally
qualify as serious drug offenses under this definition.

7

Georgia law prohibits “any person to . . . sell . . . any controlled substance.” O.C.G.A.
§ 16-13-30(1)(b). Selling cocaine, a Schedule II controlled substance, calls for imprisonment of
“not less than five years nor more than 30 years.” O.C.G.A. §§ 16-13-26(1)(D) & 16-1330(1)(d). Selling marijuana calls for imprisonment of “not less than one year nor more than ten
years.” O.C.G.A. § 16-13-30(j)(2). Thus, both Bennett’s convictions for sale of cocaine and sale
of marijuana had a “maximum term of imprisonment of ten years or more” and qualify as serious
drug offenses under the ACCA.
Bennett also contends that these two convictions only count as one because they occurred
“on the same day” and he was “sentenced to both at the same time, on the same day, in the same
charging instrument.” (Doc. 5, p. 1.) However, an offense is considered to be committed on
“occasions different from one another,” for purposes of the ACCA, as long as the “predicate
crimes are successive rather than simultaneous . . . especially if the defendant committed the
crimes in different places.” United States v. Pope, 132 F.3d 684, 692 (11th Cir. 1998); see also
United States v. Weeks, 711 F.3d 1255 (11th Cir. 2013).
Bennett was convicted on three counts for sale of controlled substances occurring on
February 26, 1999. (Doc. 10-1, p. 2.) Count One was for a sale of cocaine at “the Edgewood
Villa Apartments’ parking lot.” (Doc. 10-1, p. 2.) Count Two was for a sale of marijuana in the
same location, and Count Three was for a separate sale of marijuana at “the American Legion
Post 589.” (Id.) The sale of cocaine from Count One and the sale of marijuana in Count Three
occurred in two separate locations and at two separate times. Consequently, Bennett’s drug
convictions qualify as two separate serious drug offenses under the ACCA. Accordingly, for all
the reasons set forth above, the Court DENIES Bennett’s Motions to Amend/Supplement,
(docs. 5, 8, 12).

8

Bennett has the requisite qualifying predicate offenses under the ACCA: robbery, sale of
cocaine, and sale of marijuana. The residual clause had no bearing on his status as an armed
career criminal, and thus, Johnson also has no effect on the resulting sentence. Bennett is not
entitled to his requested relief, and therefore, I RECOMMEND the Court DENY his Motion to
Vacate, Set Aside, or Correct his Sentence.
II.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Bennett leave to appeal in forma pauperis and a Certificate

of Appealability (“COA”). Though Bennett has, of course, not yet filed a notice of appeal, it is
proper to address these issues in the Court’s order of dismissal. Pursuant to Rule 11 of the Rules
Governing Section 2255 Cases, “the district court must issue or deny a certificate of
appealability when it issues a final order adverse to the applicant.” (Emphasis supplied); see also
Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma
pauperis is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or

9

fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a certificate of appealability is issued.

A certificate of

appealability may issue only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a certificate of appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a certificate of appealability, a petitioner must show
“that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Bennett’s pleading and the Government’s Response and
applying the Certificate of Appealability standards set forth above, there are no discernable
issues worthy of a certificate of appeal; therefore, the Court should DENY the issuance of a
Certificate of Appealability. If the Court adopts this recommendation and denies Bennett a
Certificate of Appealability, Bennett is advised that he “may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” Rule 11(a),
Rules Governing Section 2255 Cases in the United States District Courts. Furthermore, as there

10

are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus,
the Court should likewise DENY Bennett in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, the Court DENIES Bennett’s Motions to Amend/Supplement.
(Docs. 5, 8, 12.) Moreover, I RECOMMEND this Court DENY Bennett’s Motion to Vacate,
Set Aside, or Correct his Sentence, DIRECT the Clerk of Court to CLOSE this case, and
DENY Bennett a Certificate of Appealability and in forma pauperis status on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

11

judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Bennett and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 28th day of August,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

12