Bable v. United States Of America
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Bable's Section 1 2255 Motion and DIRECT the Clerk of Court to CLOSE this case. It is also RECOMMENDED that the Court DENY Bable a Certificate of Appealability and DENY Bable in forma pauperis status on appeal. 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 6/1/2017). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 5/18/2017. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: 2:16-cv-68
UNITED STATES OF AMERICA,
(Case No. 2:13-cr-29)
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Eric Bable (“Bable”), who is currently incarcerated at the Federal Correctional ComplexMedium in Coleman, Florida, 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 DISMISSES
as moot Bable’s Motion for Leave to Amend and/or Supplement. (Doc. 13.) Additionally, I
RECOMMEND this Court DENY Bable’s Section 2255 Motion and DIRECT the Clerk of
Court to CLOSE this case. I also RECOMMEND that the Court DENY Bable a Certificate of
Appealability and DENY Bable in forma pauperis status on appeal.
Bable pleaded guilty in this Court to one count of possession with intent to distribute
oxycodone, oxymorphone, and alprazolam, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).
J., United States v. Wright, 2:13-cr-29 (S.D. Ga. Apr. 16, 2014), ECF No. 43. The Honorable
Lisa Godbey Wood sentenced Bable to 151 months’ imprisonment. Id. at p. 2. Bable did not file
a direct appeal.
On May 13, 2016, Bable filed this Section 2255 Motion, in which he asserts 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, pp. 12–13.) The Government filed a
Response, (doc. 3), to which Bable filed a Reply, (doc. 4). Respondent filed a Supplemental
Response to Bable’s Motion, (doc. 11), after the Court granted Bable’s Motion to Stay his 28
U.S.C. § 2255 Motion pending the Supreme Court’s decision in Beckles v. United States, ____
U.S. ____, 137 S. Ct. 886 (Mar. 6, 2017). 1 Bable then filed a Motion seeking relief pursuant to
Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 (2016), and a Motion for Leave to Amend
and/or Supplement. (Docs. 12, 13.) 2
Bable asserts his sentence under the career offender provision of the United States
Sentencing Guidelines (“the Guidelines”) violates the due process clause of the Constitution.
(Doc. 1-1, p. 1.) Bable specifically contends that his previous convictions under Florida law for
burglary, resisting an officer with violence, and robbery by sudden snatching are no longer
considered “crimes of violence” within the meaning of the Guidelines’ residual clause. 3 (Id. at
p. 2.) In support of these assertions, Bable relies upon the Supreme Court’s decision in Johnson,
which found the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), (the
The Court hereby LIFTS that stay.
Bable’s Motions are virtually identical, which is why the Court dismisses as moot Bable’s later-filed
The Eleventh Circuit has found that, under Florida law, burglary of a dwelling or of an unoccupied
dwelling are crimes of violence within the meaning of the Guidelines’ residual clause. United States v.
Matchett, 802 F.3d 1185, 1196–97 (11th Cir. 2015). Likewise, a conviction for resisting a police officer
with violence pursuant to Florida Statute § 843.01 is a crime of violence under the Guidelines’ residual
clause. United States v. Barrow, 451 F. App’x 885, 886 (11th Cir. 2012) (citing United States v. Nix, 628
F.3d 1341, 1342 (11th Cir. 2010)). Accordingly, Bable has at least two felony convictions within the
meaning of the Guidelines’ residual clause.
“ACCA”), unconstitutionally vague. In addition, Bable avers the Supreme Court decisions in
Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (June 20, 2013), and Mathis v. United
States, ___ U.S. ___, 136 S. Ct. 2243 (June 23, 2016), are retroactively applicable decisions
which allow him to raise his claims relating to his erroneous career offender classification.
(Doc. 12, p. 2.)
The Government asserts the Supreme Court’s decision in Beckles forecloses Bable’s
argument that his sentence was unconstitutionally enhanced pursuant to the Sentencing
Guidelines’ career offender provision.
Additionally, the Government asserts that Bable’s
Mathis-based claims are untimely pursuant to 28 U.S.C. §§ 2255(f)(1) and (3) and are not
cognizable under Section 2255. (Doc. 11.)
Whether Johnson Applies to Bable’s Sentence Enhancement Pursuant to the
Bable moves under 28 U.S.C. § 2255 for resentencing pursuant to Johnson. In Johnson,
the Supreme Court held that “imposing an increased sentence under the residual clause of the
ACCA violates the Constitution’s guarantee of due process[.]” ___ U.S. at ___, 135 S. Ct. 2551,
2563. The ACCA provides enhanced penalties for defendants who are (1) convicted of being
felons in possession of firearms, in violation of 18 U.S.C. § 922(g), and (2) have “three prior
convictions . . . for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1)
(emphasis added). The residual clause of the ACCA defines “violent felony” as, inter alia, a
felony that “otherwise involves conduct that presents a serious potential risk of physical injury to
another.” Id. at § 924(e)(2)(B). In Johnson, the Supreme Court found the “residual clause” so
vague as to violate due process. See ___ U.S. at ___, 135 S. Ct. at 2557. The crux of Bable’s
first assertion is that he no longer qualifies for an enhanced sentence under the residual clause of
the Guidelines in light of the Johnson decision.
The “crime of violence” definition contained within the Sentencing Guidelines’ career
offender enhancement provision is identical to the residual clause language the Supreme Court
found unconstitutional in Johnson. U.S.S.G. § 4B1.2(a)(2). Despite this similarity, the Supreme
Court held in Beckles that the holding of the Johnson decision does not apply to the residual
clause of the Sentencing Guidelines. In Beckles, the petitioner was arrested for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). “Due to multiple prior felonies,
Beckles[’] violation of 18 U.S.C. § 922(g) subjected him to the enhanced penalty provision of 18
U.S.C. § 924(e)(1)[,] and the district court found him to be an armed career criminal pursuant to
that statute.” United States v. Beckles, 565 F.3d 832, 841 (11th Cir. 2009). “This finding, in
turn, qualified Beckles for a sentence enhancement under [Section 4B1.4 of the Sentencing
Guidelines].” Id. Section 4B1.4 of the Sentencing Guidelines “instructs that the appropriate
offense level is . . . [inter alia] the offense level described in § 4B1.1, if applicable.” Id. at 841–
42. “Section 4B1.1, in turn, applies if:
(1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.
Id. at p. 842 (citing U.S.S.G. § 4B1.1(a) (emphasis supplied)). The term “crime of violence”
includes “any offense under . . . state law, punishable by imprisonment for a term exceeding one
year, that . . . involves conduct that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a). “At [Beckles’] sentencing, the district court found that § 4B1.1
was applicable . . . reasoning that two of Beckles[’] prior felony convictions were for qualified
controlled substances offenses, and the current 18 U.S.C. § 922(g) conviction [for being a felon
in possession of a firearm] was for a ‘crime of violence’” Id.
In Beckles’ subsequent Section 2255 motion, he “claimed that he was improperly
sentenced as a career offender under U.S.S.G. § 4B1.1, [arguing that] his conviction for
possession of a sawed-off shotgun was not a ‘crime of violence.’” Beckles v. United States, 579
F. App’x 833, 833 (11th Cir. 2014), vacated, Beckles v. United States, ___ U.S. ___, 137 S. Ct.
886 (Mar. 6, 2017). The Eleventh Circuit Court of Appeals denied Beckles’ Section 2255
motion, finding Johnson inapplicable to the Sentencing Guidelines. Beckles subsequently filed a
petition for certiorari in the United States Supreme Court, again contending that the Sentencing
Guidelines’ residual clause is void for vagueness under Johnson. The Supreme Court granted
certiorari and affirmed the decision of the Eleventh Circuit, holding that “the advisory
Sentencing Guidelines, including § 4B1.2(a)’s residual clause, are not subject to a challenge
under the void-for-vagueness doctrine.” Beckles, ___ U.S. at ___, 137 S. Ct. at 896. The Court
reasoned that, unlike the ACCA, “[t]he advisory Guidelines [ ] do not implicate the twin
enforcement.” 4 Beckles, ___ U.S. at ___, 137 S. Ct. at 894. The Court further distinguished the
Guidelines from the ACCA because the ACCA requires sentencing courts to increase a
defendant’s prison term from a statutory maximum of 10 years to a minimum of 15 years,
whereas the Guidelines are advisory. Id. at 892. Therefore, although the Sentencing Guidelines’
residual clause and the ACCA’s residual clause are identical, the Sentencing Guidelines are not
subject to a void-for-vagueness challenge under Johnson because the Guidelines “merely guide
the district courts’ discretion[.]” Id. at 894.
Specifically, the Supreme Court found that “even perfectly clear Guidelines could not provide notice to
a person who seeks to regulate his conduct so as to avoid particular penalties within the statutory range.”
Beckles, ___ U.S. at ___, 137 S. Ct. at 886, 894. As to arbitrary enforcement, the Guidelines “do not
regulate the public by prohibiting any conduct or by ‘establishing minimum and maximum penalties for
[any] crime.’” Id. at 895 (citing Mistretta v. United States, 488 U.S. 361, 396, (1989)). “Rather, the
Guidelines advise sentencing courts how to exercise their discretion within the bounds established by
The Supreme Court’s decision in Beckles forecloses Bable’s argument that he was
improperly sentenced as a career offender under the Sentencing Guidelines. As a result, the
Court should DENY that portion of his Section 2255 Motion.
Whether Descamps and Mathis Provide Bable With Relief
The Government contends Bable’s Mathis claims are untimely. (Doc. 11, p. 3.) To
determine the timeliness of these claims, the Court looks to the applicable statute of limitations.
Section 2255(f)(1) provides that a movant has one year to file a Section 2255 motion, and that
period runs from the latest of “the date on which the judgment of conviction becomes final[.]”
Bable was sentenced to 151 months’ imprisonment on April 14, 2014, and the Court’s
final judgment was entered on April 16, 2014. 5 Min. Entry & J., United States v. Bable, 2:13-cr29 (S.D. Ga. Apr. 14 and Apr. 16, 2014), ECF Nos. 41, 43. Bable had fourteen (14) days, or
until April 30, 2014, 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 Bable did not file an appeal, he had
until April 30, 2015, to file a timely Section 2255 motion. 28 U.S.C. § 2255(f)(1). Bable did not
execute his Section 2255 motion until May 10, 2016, and it was filed in this Court on May 13,
2016. (Doc. 1.) Bable filed his Section 2255 Motion more than a year after the expiration of the
applicable statute of limitations period.
Consequently, Bable’s petition is untimely under
§ 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
Bable’s judgment date is listed as being April 14, 2014. The Court signed Bable’s Judgment on April
15, 2014, and it was filed upon the docket and record of the case on April 16, 2014. J., United States v.
Bable, 2:13-cr-29 (S.D. Ga. Apr. 16, 2014), ECF No. 43. Regardless of which date the Court uses as the
date of judgment, Bable’s Motion is untimely under Section 2255(f)(1). Nevertheless, the Court uses the
latest of these dates for statute of limitations purposes.
deadline; a complaint or petition filed one day late (or six days late as in the case at bar) is
untimely, just as if a year late.”) (quoting Turner v. Singletary, 46 F. Supp. 2d 1238, 1240 (N.D.
Because Bable does not meet the limitations period of Section 2255(f)(1), the Court must
assess whether Bable can utilize the statute of limitations period found at Section 2255(f)(3).
Section 2255(f)(3) provides that the one-year statute of limitations runs from “the date on which
the right asserted was initially recognized by the Supreme Court, if that right has been newly
recognized . . . and made retroactively applicable to cases on collateral review[.]” Descamps
was decided on June 20, 2013, and Mathis was decided on June 23, 2016. Regardless of the
dates of these decisions, however, neither case provides Bable with the relief he seeks because
these cases did not announce a newly recognized right made retroactively applicable to cases on
In Descamps, the Supreme Court held that sentencing courts may not apply the modified
categorical approach to determine if a conviction is a “violent felony” under the ACCA when the
crime of conviction has a “single, indivisible set of elements.” ___ U.S. at ___, 133 S. Ct. at
2281–82. In doing so, the Supreme Court stated that its case law regarding the categorical
approach and modified categorical approach in ACCA applications “all but resolve[d]” the case.
Id. at ___, 133 S. Ct. at 2283. “It is well settled that a case does not apply retroactively unless
and until the Supreme Court so states.” Hill v. Taylor, No. 114CV00477MHHTMP, 2017 WL
1097216, at *3 (N.D. Ala. Mar. 2, 2017), report and recommendation adopted, No.
114CV00477MHHTMP, 2017 WL 1076446 (N.D. Ala. Mar. 22, 2017) (citing Tyler v. Cain, 533
U.S. 656 (2001) (noting that the Supreme Court is the only entity that can make a new rule
retroactive by so holding, and that neither decisions of lower courts nor dicta of Supreme Court
decisions make a case retroactive to cases on collateral review)). 6
In determining whether a new rule announced by the United States Supreme Court is
retroactively applicable for purposes of a first Section 2255 motion, the Eleventh Circuit
distinguishes substantive rules from procedural rules. “Under the Teague[v. Lane, 489 U.S. 288
(1989),] framework, an old rule applies both on direct and collateral review, but a new rule is
generally applicable only to cases that are still on direct review.” Mays v. United States, 817
F.3d 728, 734 (11th Cir. 2016). “A new rule is defined as a rule that was not dictated by
precedent existing at the time the defendant’s conviction became final.”
Id. (emphasis in
original). However, Descamps did not announce a new rule; rather, “its holding merely clarified
existing precedent.” Because Descamps did not announce a new rule, the statute of limitations
period found in Section 2255(f)(3) is not triggered and cannot render Bable’s claims timely.
Thus, Bable cannot seek relief in this collateral proceeding on this basis.
Likewise, the Supreme Court’s decision in Mathis did not announce a new rule that is
retroactively applicable to cases on collateral review. The Supreme Court noted in Mathis that,
“For more than 25 years, we have repeatedly made clear that application of ACCA involves, and
involves only, comparing elements. Courts must ask whether the crime of conviction is the same
as, or narrower than, the relevant generic offense. They may not ask whether the defendant’s
conduct—his particular means of committing the crime—falls within the generic definition.”
___ U.S. at ___, 136 S. Ct. at 2257. Stated another way, the Mathis court held that the modified
categorical approach must focus on the elements of the statutory offense and not on that
offense’s means of commission. Accordingly, Mathis does not establish a newly recognized rule
“The Supreme Court itself has not expressly declared Descamps to be retroactive to cases on collateral
review.” Wilson v. Warden, FCC Coleman, 581 F. App’x 750, 753 (11th Cir. 2014).
that is retroactively applicable to cases on collateral review. Holt v. United States, 843 F.3d 720,
722 (7th Cir. 2016) (noting the Mathis decision interprets the “statutory word ‘burglary’ and
does not depend on or announce any novel principle of constitutional law[ ]”); United States v.
Taylor, No. 16-6223, 2016 WL 7093905, at *4 (10th Cir. Dec. 6, 2016) (collecting cases); Davis
v. United States, CV116-140, 2017 WL 1362795, at *4 (S.D. Ga. Mar. 16, 2017) (determining
that Mathis did not announce a new rule of constitutional law that the Supreme Court made
retroactive, nor is this decision retroactive for purposes of filing a second or successive Section
2255 motion). Thus, Bable is not entitled to relief pursuant to Mathis, as this decision also does
not trigger the limitations period found in Section 2255(f)(3).
Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Bable leave to appeal in forma pauperis. Though Bable 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 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. Pursuant to Rule 11 of the
Rules Governing Section 2255 cases, the Court “must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant.” 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 Bable’s Motion, as supplemented, 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
Bable a Certificate of Appealability, Bable 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.
Based on the foregoing, the Court DISMISSES as moot Bable’s Motion for Leave to
Amend and/or Supplement. (Doc. 13.) Additionally, I RECOMMEND that the Court DENY
Bable’s Section 2255 Motion and DIRECT the Clerk of Court to CLOSE this case. I also
RECOMMEND the Court DENY Bable in forma pauperis status on appeal and DENY Bable 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.
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 Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Bable and the United States
Attorney for the Southern District of Georgia.
SO ORDERED and REPORTED and RECOMMENDED, this 18th day of May,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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