Holland v. United States Of America
Filing
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REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Holland's 1 MOTION to Vacate under 28 U.S.C. 2255, DENY Holland in forma pauperis status on appeal, and DENY Holland a Certificate of Appealability. Any party seeking to object to this Report and Recommendation is ordered 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 6/7/2016). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 6/18/2015. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
MICHAEL ALLEN HOLLAND,
Petitioner,
CIVIL ACTION NO.: 2:16-cv-67
v.
UNITED STATES OF AMERICA,
(Case No. 2:06-cr-3)
Respondent.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Michael Allen Holland (“Holland”), who is currently incarcerated at the Federal Prison
Camp in Jesup, Georgia, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to
28 U.S.C. § 2255. (Doc. 1.) The Court directed service of this Motion on the United States
Attorney for the Southern District of Georgia and directed the United States Attorney to file a
response within thirty days of the Court’s Order. (Doc. 2.) For the reasons which follow, the
Court VACATES its May 18, 2016, Order and relieves the United States Attorney of any
obligation to respond to Holland’s Motion. For these same reasons, I RECOMMEND this
Court DISMISS Holland’s Motion, DENY Holland in forma pauperis status on appeal, and
DENY Holland a Certificate of Appealability.
BACKGROUND
Holland was convicted in this Court, after a jury trial, of being a convicted felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Jury Verdict, United
States v. Holland, 2:06-cr-3 (S.D. Ga. July 17, 2006), ECF No. 62. The Honorable Anthony A.
Alaimo sentenced Holland to 180 months’ imprisonment. J., United States v. Holland, 2:06-cr-3
(S.D. Ga. Sept. 25, 2006), ECF No. 75. Holland filed an appeal, and the Eleventh Circuit Court
of Appeals affirmed this Court’s judgment and sentence. Mandate, United States v. Holland,
2:06-cr-3 (S.D. Ga. Aug. 2, 2007), ECF No. 86.
In April 2008, Holland filed his first Section 2255 Motion, alleging ineffective assistance
of counsel and that he was wrongly attributed six criminal history points for an “old offense.”
Mot., Holland v. United States, 2:08-cv-47 (S.D. Ga. Apr. 18, 2008), ECF No. 1. This Court
denied Holland’s Motion. R. & R. and Order, Holland v. United States, 2:08-cv-47 (S.D. Ga.
Oct. 14, 2008 and Feb. 10, 2009), ECF Nos. 4, 8. Holland filed the instant Section 2255
Motion—his second—on May 10, 2016. (Doc. 1.)
DISCUSSION
Holland asserts, in relevant part, that he is innocent of his enhanced sentence pursuant to
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), as his previous convictions are
no longer considered to be violent felonies under the ACCA. 1 (Doc. 1, p. 4.) Holland bases his
assertion on the United States Supreme Court’s decision in Johnson v. United States, ___ U.S.
___, 135 S. Ct. 2551 (June 26, 2015). (Id. at p. 16.)
I.
Whether Holland can Proceed in this Court Pursuant to Section 2255
To file a second or successive Section 2255 motion, the movant is required to first file an
application with the appropriate court of appeals for an order authorizing the district court to
consider the motion. 28 U.S.C. § 2244(b)(3)(A); Farris v. United States, 333 F.3d 1211, 1216
1
Under the ACCA, a defendant who is convicted under 18 U.S.C. § 922(g) is subject to a 15-year
mandatory-minimum prison sentence if he has three prior convictions for “serious drug offenses” or
“violent felonies” committed on separate occasions. 18 U.S.C. § 924(e)(1); see also United States v.
Samuel, 580 F. App’x 836, 841 (11th Cir. 2014). Without Section 924(e)’s enhancement, Holland would
have been subject to a maximum term of ten years in prison. See Bryant v. Warden, FCC ColemanMedium, 738 F.3d 1253, 1285 (11th Cir. 2013) (recognizing that “[s]ection 924(a)(2) states that the
maximum sentence for a violation of § 922(g) is 10 years.”).
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(11th Cir. 2003). A panel of the court of appeals must certify that the second or successive
motion contains:
(1) newly discovered evidence that, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h); In re Anderson, 396 F.3d 1336, 1337 (11th Cir. 2005).
“Without
authorization” from the court of appeals, a “district court lack[s] jurisdiction to consider [a
movant’s] second or successive” motion. Carter v. United States, 405 F. App’x 409, 410 (11th
Cir. 2010).
Holland did not receive prior authorization from the Eleventh Circuit Court of Appeals
which would permit this Court to exercise jurisdiction over this Section 2255 Motion. United
States v. Florence, 411 F. App’x 230, 231 (11th Cir. 2011) (absent authorization to file a second
or successive Section 2255 motion, a district court lacks subject-matter jurisdiction to consider
the claims raised in the motion). 2 As noted above, Holland previously filed a Section 2255
motion in this Court, which was denied.
2
The Court recognizes that “[t]here is, however, a small subset of claims that are not categorized as
‘second or successive’—i.e., where the basis for the second habeas claim arose after the conclusion of the
previous petition.” Stewart v. United States, 646 F.3d 856, 863 (11th Cir. 2011). Holland’s claims do not
fall within this narrow exception. The movant in Stewart filed a Section 2255 motion after the Georgia
Supreme Court vacated his state criminal convictions that had been used to enhance his federal sentence.
Id. at 858. The court held that Stewart could not have possibly raised the claims in his first habeas corpus
motion, because the factual basis of his claim did not exist at the time that he filed the motion. Id. at 865.
Thus, the Eleventh Circuit held that Stewart’s motion fell within a “small subset” of numerically
successive Section 2255 motions that are not successive and thus are not barred. Id. In contrast, in this
case, Holland bases his claim on a “new constitutional rule of law.” 28 U.S.C. § 2244 specifically
provides that absent pre-filing authorization from the appropriate court of appeals, the district court does
not have jurisdiction over such claims. Indeed, the Fifth Circuit opinion which the Eleventh Circuit
adopted in Stewart directly rejected the contention that a petition such as Holland’s could fall within the
“small subset.” Leal Garcia v. Quarterman, 573 F.3d 214, 221 (5th Cir. 2009) (“Newly available claims
based on new rules of constitutional law (made retroactive by the Supreme Court) are successive under §
2244(b)(2)(A): Indeed this is the reason why authorization is needed to obtain review of a successive
3
The crux of Holland’s assertion here is that he no longer qualifies for an enhanced
sentence under the ACCA in light of the Johnson decision. In Johnson, the Supreme Court held
that “imposing an increased sentence under the residual clause 3 of the Armed Career Criminal
Act violates the Constitution’s guarantee of due process[.]” ___ U.S. at ___, 135 S. Ct. 2551,
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. However, Holland could have raised any argument that he is not an armed
career criminal based on his previous state drug convictions in his first Section 2255 motion.4
(Doc. 1, pp. 18–19.) Thus, Holland must seek permission, pursuant to Section 2255(h), from the
Eleventh Circuit before he files a second or successive Section 2255 motion in this Court.
In this regard, the Court notes that the Supreme Court recently decided in Welch v.
United States, ___ U.S. ___ 2016 WL 1551144 (Apr. 18, 2016), that Johnson applies
retroactively to cases on collateral review. The Supreme Court’s decision in Welch fortifies the
remedy available under Section 2255(h). Welch changes the Eleventh Circuit’s Section 2255(h)
analysis and no longer makes Section 2255(h) automatically unavailable to petitioners such as
Jackson. See In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015) (“Under section 2255(h)(2), the
petition. [To hold otherwise] would permit an end-run around § 2244. The new rule of constitutional law
would be non-successive because it was previously unavailable, so no authorization would be required.
Were [petitioner] correct, § 2244(b)(2) would be rendered surplusage.”); see also Stewart, 646 F.3d at 859
(adopting too broad an approach to when a Section 2255 motion is not successive “would threaten
Congress’s clear intention to limit ‘second or successive’ attempts at post-conviction relief”).
3
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.” Johnson, ___ U.S. at ___, 135 S. Ct. at 2555–56.
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The Court questions the applicability of the Johnson decision to Holland’s claims. He claims his
previous drug convictions—not any convictions characterized as “violent felonies” under Section
924(e)’s residual clause—are no longer qualifying predicate offenses.
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Supreme Court is the only entity that can make a new rule retroactive.”) (quoting Tyler v. Cain,
533 U.S. 656, 663 (2001) (internal citations and alterations omitted)). In addition, the Eleventh
Circuit has already recognized Welch’s holding and Johnson’s application to cases on collateral
review. In re Robinson, ___ F.3d ___, No. 16-11304, 2016 WL 1583616 (11th Cir. Apr. 19,
2016).
Holland is reminded that the filing of Section 2255 motions is governed by a statute of
limitations period, and of particular significance is Section 2255(f)(3). “It is important to note
that 28 U.S.C. [§] 2255(f)(3) requires that a § 2255 motion relying on a newly-recognized right
must be filed within one year from ‘the date on which the right asserted was initially recognized
by the Supreme Court[.]’” King v. Werlich, No. 16-CV-300-DRH-CJP, 2016 WL 1583936, at
*3 (S.D. Ill. Apr. 20, 2016) (quoting 28 U.S.C. § 2255(f)(3)). “Further, the one-year period
prescribed by [Section] 2255(f)(3) runs from the date of the Supreme Court’s ruling initially
recognizing the right asserted[ ] and not from the date the newly recognized right was found to
be retroactive. Id. (emphasis in original) (citing Dodd v. United States, 545 U.S. 353, 358
(2005)). The Supreme Court decided Johnson on June 26, 2015.
For these reasons, I RECOMMEND the Court DISMISS Holland’s Section 2255
Motion as being an unauthorized second or successive motion.
II.
Leave to Appeal In Forma Pauperis and Certificate of Appealability
The Court should also deny Holland leave to appeal in forma pauperis. Though Holland
has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. 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
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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
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,
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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 Holland’s Motion 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 Holland a Certificate of Appealability, Holland 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 are no non-frivolous issues to
raise on appeal, an appeal would not be taken in good faith. Thus, the Court should likewise
DENY in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS Holland’s Motion,
DENY Holland in forma pauperis status of appeal, and DENY Holland a Certificate of
Appealability.
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.
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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
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon Holland and the United States
Attorney for the Southern District of Georgia.
SO ORDERED and REPORTED and RECOMMENDED, this 24th day of May,
2016.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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