Witherspoon v. United States Of America

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS 10 . Court denies the Motion to Vacate. Court denies a certificate of appealability and leave to proceed in forma pauperis on appeal. Clerk is directed to enter judgment of dismissal. Signed by Chief Judge J. Randal Hall on 11/8/17. (slt)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

JOHNNY LEE WITHERSPOON,
Movant,

CIVIL ACTION NO.: 2:16-cv-64

v.

(CaseNo.:2:00-cr-19)
UNITED STATES OF AMERICA,

Respondent.

ORDER

Presently before the Court are Movant Johnny Lee Witherspoon's ("Witherspoon")

Objections to the Magistrate Judge's Report and Recommendation. (Docs. 11, 13.) After an

independent and de novo review of the entire record, the undersigned concurs with the Report
and Recommendation.

(Doc. 10.)

Accordingly, the Court OVERRULES Witherspoon's

Objections and ADOPTS the Report and Recommendation of the Magistrate Judge, as
supplemented herein, as the opinion of the Court. The Court DENIES Witherspoon a Certificate

of Appealability and leave to proceed in forma pauperis on appeal. The Court DIRECTS the
Clerk of Court to enter an appropriate judgment of dismissal and to CLOSE this case.
BACKGROUND

Witherspoon filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to

28 U.S.C. § 2255. (Doc. 1.) Witherspoon asserted that he should be resentenced in light of the
United States Supreme Court's decision in Johnson v. United States,

U.S.

, 125 S. Ct.

22551 (June 26, 2015). The Government filed a Response arguing that Johnson is inapplicable

to Witherspoon's Motion because his status as an armed career criminal under the Armed Career

Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), was predicated on seven prior convictions, none of

which Witherspoon challenged in his Motion. (Doc. 6, p. 3.)

The Magistrate Judge recommended denying Witherspoon's Section 2255 Motion

because Witherspoon has the requisite number of prior convictions to qualify him as an armed
career criminal.

(Doc. 10.) In coming to this conclusion, the Magistrate Judge looked to

Witherspoon's convictions for strong armed robbery and assault and battery of a high and

aggravated nature.

(Id at pp. 1-2.)

The Magistrate Judge concluded that, although

Witherspoon's convictions for assault and battery of a high and aggravated nature may not

qualify as violent felonies, Witherspoon's three convictions for strong armed robbery do qualify.
(Id. at p. 4.)

Witherspoon filed Objections arguing that his three strong armed robbery

convictions actually only qualify as two convictions for purposes of his armed career criminal
designation. (Doc. 11.)
DISCUSSION

Witherspoon failed to raise any arguments regarding his strong armed robbery
convictions in his Section 2255 Motion. In fact, the only convictions he challenged were for his

second degree burglary in South Carolina, burglary, and resisting arrest. (Doc. 1, p. 7.) As the

Magistrate Judge warned Witherspoon, "[t]he filing of objections is not a proper vehicle through
which to make new allegations[.]" (Doc. 10, p. 7.) Thus, the Court need not consider the new

arguments Witherspoon raises in his Objections. See Williams v. McNeil 557 F.3d 1287, 1292

(11th Cir. 2009) ("The district court retained the final adjudicative authority and properly
exercised its discretion in deciding whetherto considerany new arguments raised by Williams in

his objections to the magistrate judge's report and recommendation.") (citing United States v.
Raddatz, 447 U.S. 667, 681-82 (1980)).

However, even if the Court desired to consider Witherspoon's Objections, it would be
unable to do so. A Section 2255 motion cannot be a substitute for a direct appeal; therefore, a

movant is procedurally defaulted from seeking habeas relief on claims that he could have raised
on direct appeal. Reed v. Farley, 512 U.S. 339, 354 (1994). If a movant has not raised an
available issue on direct appeal, he has waived his right to assert these issues in a later

proceeding. This procedural default can be overcome by showing "cause" for the waiver of a
claim on direct appeal and "actual prejudice resulting from the alleged error." Lynn v. United
States, 365 F.3d 1225, 1234 (11th Cir. 2004) (citing Bouslev v. United States, 523 U.S. 614, 622

(1998)). In procedural default cases, "the question is not whether legal developments or new
evidence has made a claim easier or better, but whether at the time ofthe direct appeal the claim

was available at all." Id. at 1235 (emphasis added). Additionally, cause is defined as "some

objective factor external to the defense [that] prevented [movant] or his counsel from raising his
claims on direct appeal[.]" Id.

Witherspoon's arguments regarding his strong armed robbery convictions are precisely

the type of claim that could have been raised on direct appeal. However, Witherspoon failed to
make these arguments and fails to provide any explanation—much less a showing of cause and

prejudice—for his failure to raise them on appeal. Instead, Witherspoon unsuccessfully appealed
the consecutive nature of his sentence, the admissibility of law enforcement testimony during his

sentencing hearing, and the necessity of the length of his sentence based on his age. Mandate,
United States v. Witherspoon, 2:00-cr-19 (S.D. Ga. July 6, 2001), ECF No. 73, p. 3. Because

Witherspoon did not raise the arguments regarding his strong armed convictions on appeal, he

may not do so now. Massaro v. United States, 538 U.S. 500, 504 (2003) ("[C]laims not raised on

direct appeal may not be raised on collateral review unless the petitioner shows cause and

prejudice .... c[R]ules of procedure should be designed to induce litigants to present their
contentions to the right tribunal at the right time.'") (citing Guinan v. United States, 6 F.3d 468,
474 (7th Cir. 1993) (Easterbrook, J., concurring)).

Finally, the arguments in Witherspoon's Objections are also barred 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

(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
Id

Witherspoon was sentenced to 293 months' imprisonment on November 1, 2000, and the
Court's final judgment was entered on November 6, 2000. J., United States v. Witherspoon,

2:00-cr-19 (S.D. Ga. Nov. 6, 2000), ECF No. 63. Witherspoon timely filed an appeal with the
Eleventh Circuit Court of Appeals. Notice of Appeal, United States v. Witherspoon, 2:00-cr-19

(S.D. Ga. Nov. 9, 2000), ECF No. 65. The Eleventh Circuit affirmed this Court's judgment on
June 6, 2001. United States v. Witherspoon, 263 F.3d 170 (Table) (11th Cir. 2001). Thus,

Witherspoon had until September 4, 2002, to file a timely Section 2255 motion. 28 U.S.C.

§ 2255(f)(1); see also Clav v. United States, 537 U.S. 522, 525 (2003). However, Witherspoon
did not execute his Section 2255 Motion until May 2, 2016, nearly fourteen (14) years after the

expiration of the applicable statute of limitations period. Importantly, the extended statute of

limitations under Johnson does not apply to the strong armed robbery claims contained in
Witherspoon's Objections. These claims fall under the elements clause of the ACCA and not the

residual clause. Consequently, even if the Court were able to consider the arguments raised in

Witherspoon's Objections, they would be 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 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)).
CONCLUSION

For all the reasons set forth above, the Court OVERRULES Witherspoon's Objections

and ADOPTS the Report and Recommendation of the Magistrate Judge, as supplemented herein,

as the opinion of the Court. Accordingly, the Court DENIES Witherspoon's Motion to Vacate,
Set Aside, or Correct Sentence, brought pursuant to 28 U.S.C. § 2255. (Doc. 1.) The Court

DENIES Witherspoon a Certificate of Appealability and leave to proceed informa pauperis on

appeal. The Court DIRECTS the Clerk of Court to enter an appropriatejudgment of dismissal
and to CLOSE this case.

SO ORDERED, this

day of November, 2017.

J. R4NM. HALL, CHIEF JUDGE
UNITED^STATES DISTRICT COURT
lERN DISTRICT OF GEORGIA