Williams v. United States Of America
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS in part and DENY in part Williams' 1 Motion to Vacate, Set Aside, or Correct his Sentence. It is further RECOMMENDED that the Court DENY Williams a Certificate of App ealability and in forma pauperis status on appeal and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. Any party seeking to object to this Report and Recommendation is ordered to file specific written obj ections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 2/26/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/12/2018. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
MARK DAMON WILLIAMS,
CIVIL ACTION NO.: 2:16-cv-98
UNITED STATES OF AMERICA,
(Case No. 2:05-cr-44)
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
More than eleven years ago, this Court sentenced Mark Damon Williams (“Williams”) to
188 months’ imprisonment under the Armed Career Criminal Act (“ACCA”). Williams, who is
currently incarcerated at the Federal Correctional Institution in Jesup, Georgia, has now filed a
Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 149.) 1
Williams contends that the Court must resentence him following the United States Supreme
Court’s decision in Johnson v. United States, ___ U.S. at ___, 135 S. Ct. 2551 (June 26, 2015).
However, Johnson only invalidated the ACCA’s residual clause, and Williams has failed to
demonstrate that the Court relied upon that clause during his sentencing proceedings. Moreover,
even if the Court relied upon the residual clause at his sentencing, Williams’ has sufficient
predicate offenses to qualify as an armed career criminal, absent operation of the residual clause.
Therefore, he is not entitled to relief under Johnson.
The pertinent record documents in this case are filed on the docket of Williams’ criminal case, United
States v. Williams, 2:05-cr-44 (S.D. Ga. Nov. 2, 2005), and many are not included in Williams’ civil
docket. Thus, for ease of reference and consistency, the Court cites to Williams’ criminal docket in this
Order and Report and Recommendation.
For the reasons set forth more fully below, I RECOMMEND this Court DISMISS in
part and DENY in part Williams’ Motion to Vacate, Set Aside, or Correct his Sentence.
(Doc. 149.) The Court should DISMISS Williams’ claims that are not based on Johnson as
untimely and should DENY Williams’ Johnson-based arguments on the merits.
RECOMMEND that the Court DENY Williams a Certificate of Appealability and in forma
pauperis status on appeal and DIRECT the Clerk of Court to CLOSE this case and enter the
appropriate judgment of dismissal. Additionally, the Court DISMISSES as moot Williams’
Motion of Judicial Notice, (doc. 154), and Motion for Status Report, (doc. 155).
The Armed Career Criminal Act
The Court typically begins its discussion of a matter by detailing the factual and
procedural background of the case before it. However, the facts and history of Williams’ case
will be better understood by first discussing the federal statutes under which Williams was
prosecuted and recent cases pertinent to those laws.
Federal law prohibits certain persons, including convicted felons, from shipping,
possessing, or receiving firearms in or affecting interstate commerce. 18 U.S.C. § 922(g)(1).
Ordinarily, an individual who violates this prohibition faces a statutory maximum sentence of ten
years’ imprisonment. 18 U.S.C. § 924(a). However, a statutory provision known as the “Armed
Career Criminal Act” or “ACCA” imposes a higher mandatory minimum term of imprisonment
for certain offenders.
Any person who violates Section 922(g) and has on three or more
occasions been convicted for a “serious drug offense” or “violent felony” will receive a
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). The ACCA defines “violent felony” as:
[A]ny crime punishable by imprisonment for a term exceeding one year, or any
act of juvenile delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such term if
committed by an adult, that—
has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.
18 U.S.C. § 924(e)(2)(B).
The first prong of this definition, set forth in subsection (i), has come to be known as the
“elements clause,” while the crimes listed at the beginning of the subsection (ii), “burglary,
arson, or extortion, or involves use of explosives,” have come to be known as the “enumerated
crimes.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Finally, the last portion of
subsection (ii), “or otherwise involves conduct that presents a serious potential risk of physical
injury to another,” is commonly referred to as the “residual clause.” Id.
In the landmark case of Johnson, ___ U.S. at ___, 135 S. Ct. at 2563, the Supreme 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[.]” Thus, the Court struck
down that portion of the ACCA. 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. In Welch v. United States, ___ U.S. ___, 136 S. Ct.
1257, 1264–65 (Apr. 18, 2016), the Supreme Court held that Johnson announced a new
substantive rule that applies retroactively to cases on collateral review.
Williams’ Conviction and Sentencing
On November 2, 2005, a grand jury in this District returned a one-count Indictment
alleging that Williams possessed a firearm as a convicted felon and an armed career criminal, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Doc. 1.) The grand jury charged that Williams
had accumulated several state felony convictions before his possession of a .357 caliber revolver
on December 8, 2004. (Id.) The Indictment specifically listed four prior felonies: (1) an April
17, 1995, conviction for aggravated assault committed on October 25, 1994; (2) a September 15,
1997, conviction for possession of cocaine with intent to distribute committed on April 24, 1997;
(3) a September 15, 1997, conviction for possession of cocaine with intent to distribute
committed on July 23, 1997; and (4) an October 26, 1999, conviction for possession of cocaine
with intent to distribute committed on September 23, 1999. (Id.) The Government’s Penalty
Certification filed at the commencement of the case stated that Williams faced a minimum term
of imprisonment of fifteen years under the ACCA and a maximum of life imprisonment.
(Doc. 2.) On September 7, 2006, after a trial, a jury found Williams guilty of the sole charge
against him, possession of a firearm by a convicted felon in violation of the ACCA. (Doc. 115.)
Prior to Williams’ sentencing hearing, United States Probation Officer Fonda Dixon
prepared a Pre-Sentence Investigation report (“PSI”).
Probation Officer Dixon detailed
Williams’ offense conduct and criminal history and calculated Williams’ statutory penalties, as
well as his advisory Guidelines’ range. The PSI set forth a lengthy list of adult criminal
(Doc. 148, ¶¶ 24–34.)
Pertinently, Williams’ criminal history included the
following convictions: (1) a January 5, 1982, conviction in Cumberland County District Court,
Fayetteville, North Carolina, for committing assault inflicting serious injury on May 30, 1981;
(2) an April 17, 1995, conviction in the Superior Court of Glynn County in Brunswick, Georgia,
for committing aggravated assault by assaulting a victim with a knife on October 25, 1994; (3) a
September 15, 1997, conviction in the Superior Court of Glynn County in Brunswick, Georgia,
for possessing cocaine with intent to distribute on April 24, 1997; 2 (4) a September 15, 1997,
conviction in the Superior Court of Glynn County in Brunswick, Georgia, for possessing cocaine
with intent to distribute on July 23, 1997; 3 and (5) an October 26, 1999, conviction in the
Superior Court of Glynn County in Brunswick, Georgia, for possessing cocaine with intent to
distribute on October 26, 1999. (Id. at ¶¶ 24, 27, 29, 30, 32.) When calculating Williams’
offense conduct, Probation Officer Dixon stated, “[T]he defendant has been convicted of assault
inflicting serious injury, aggravated assault, and possession of cocaine with intent to distribute
(convicted for three different offenses occurring separately from one another). Since the instant
offense is a conviction for 18 U.S.C. §§ 924(e) and 922(g), the defendant is an armed career
criminal within the meaning of U.S.S.G. § 4Bl.4.”
(Id. at ¶ 20.)
The Probation Officer
concluded that Williams’ Guidelines’ range was 188 to 235 months’ imprisonment. (Id. at ¶ 57.)
Williams’ counsel filed objections the PSI. (Id. at p. 15.) Pertinently, she objected that
the Probation Officer included Williams’ January 5, 1982, conviction for assault in the list of his
career offender predicate offenses. (Id.) Williams’ counsel argued that, unlike the other four
predicate convictions listed in the PSI, this fifth conviction had not been included in the
Indictment. (Id.) Probation Officer Dixon responded that, while the Indictment listed four
offenses that supported Williams’ armed career criminal enhancement, this fifth offense also
This conviction arose out of a traffic stop where Williams was found to be in possession of
approximately forty-two pieces of crack cocaine. (Doc. 148, ¶ 29.)
This conviction arose out of an officer having found Williams to be in possession of two pieces of
crack cocaine and cash during an investigation of drug sales at a motel. (Doc. 148, ¶ 30.)
supported the classification, and it was appropriate for the Court to consider all of the prior
convictions which supported the armed career criminal designation. (Id.)
Williams appeared before the Honorable Anthony A. Alaimo for a sentencing hearing on
December 18, 2006. (Doc. 126.) At that hearing, Judge Alaimo heard from Williams, Williams’
counsel, and counsel for the Government. (Doc. 135-1.) Judge Alaimo asked Williams if he had
any objections to the factual accuracy of the PSI, and Williams clarified that he was honorably
discharged from the military. (Id. at pp. 3–4.) Williams also contested his guilt to the charge
against him. (Id. at p. 4.) Williams’ counsel objected that Williams’ criminal history was being
twice counted against him, as he had been convicted of being an armed career criminal and then
given additional criminal history points under the Guidelines for the same criminal history. (Id.
at p. 5.)
Judge Alaimo overruled Williams’ objection and incorporated the findings and
statements in the addendum to the PSI. (Id.) Williams’ counsel then argued for a sentence
below the Guidelines’ range. (Id. at pp. 6–9.) Counsel for the Government argued against this
request and asked the Court to sentence Williams within the Guidelines. (Id. at pp. 9–11.) The
Government’s counsel laid out Williams’ extensive criminal history to the Court, highlighting:
his 1982 conviction for an assault inflicting serious injury with a knife; his 1985 arrest involving
two pounds of marijuana; and “three other convictions from the 1990s for possession of cocaine
with intent to distribute and another aggravated assault from the mid[-]1990s.” (Id. at pp. 10–
11.) The Government’s counsel labeled Defendant’s past as representing a “persistent record of
drug dealing.” (Id. at p. 11.)
Judge Alaimo determined that Williams’ total Guidelines’ offense level was 33 and
criminal history category was IV, resulting in a sentencing range of 188 to 235 months’
imprisonment. (Id.) After hearing from Williams and his counsel, Judge Alaimo sentenced
Williams to 188 months’ imprisonment, the bottom of the Guidelines’ range. (Id. at p. 14.)
Judge Alaimo explained, “And the reason, of course, as has already been expressed here, is that
he has been convicted of two prior violent felonies and four felony drug offenses, at least three of
which qualify him as an armed career criminal.” (Id. at p. 14.)
Williams’ Direct Appeal
Williams filed a direct appeal to the Court of Appeals for the Eleventh Circuit. On
appeal, Williams argued that the Court erred by allowing the Government to cross examine an
exculpatory witness regarding character evidence, by allowing the jury to view a videotape
during deliberations of a police interview during which he made incriminating statements, and by
refusing to order the Government to divulge the identity of a confidential informant. The
Eleventh Circuit rejected Williams’ arguments and affirmed his sentence. (Doc. 140.)
Williams executed his instant Section 2255 Motion on June 23, 2016, and it was filed on
June 27, 2016. (Doc. 149.) He contends that he does not have sufficient predicate offenses for
operation of the ACCA in light of the Supreme Court’s decision in Johnson. (Id. at p. 4.)
Williams argues that his Georgia conviction for aggravated assault can no longer be considered a
violent felony under the ACCA following the invalidation of the residual clause. (Doc. 149-1,
pp. 4–6.) Additionally, he argues that two of his convictions for possession of cocaine with
intent to distribute should be counted as one offense, as he was sentenced for those offenses on
the same date. (Id. at p. 6.) The Government has responded to Williams’ Motion, (doc. 152),
and Williams has filed a Reply, (doc. 153).
Whether Williams Timely Filed his Motion
To determine whether Williams timely filed his Motion, the Court must look to the
applicable statute of limitations period. 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.
Williams was sentenced on December 18, 2006, and the Court entered final judgment on
December 19, 2006. (Doc. 128.). Williams filed a Notice of Appeal, and the Eleventh Circuit
entered judgment affirming his conviction and sentence on August 31, 2007. (Doc. 140.) Thus,
Williams had until September 2, 2008, to file a timely Section 2255 motion. 4
§ 2255(f)(1). Williams did not execute his Section 2255 Motion until June 23, 2016, which was
nearly eight years after the expiration of the applicable statute of limitations period.
Consequently, absent some exception, Williams’ Motion is untimely under Section 2255(f)(1).
One year after August 31, 2017, was a Saturday, and the following Monday was a legal holiday. Thus,
Williams had until the next business day to file a timely Section 2255 Motion. Fed. R. Crim. P.
45(a)(1)(C); Fed. R. Civ. P. 6(a)(1)(C).
Williams does not argue that he is entitled to equitable tolling or to the statute of
limitations periods set forth in Sections 2255(f)(2) or (4). Rather, he argues that he timely filed
his Motion under Section 2255(f)(3) because Johnson is a new rule of constitutional law made
retroactive to cases on collateral review. (Doc. 149, p 10) Indeed, in Welch v. United States,
___ U.S. ___, 136 S. Ct. 1257 (Apr. 18, 2016), the Supreme Court held that Johnson is a
substantive decision which applies retroactively to cases on collateral review. Williams executed
this Motion within one year of the Supreme Court’s decision in Johnson. Because Williams
asserts a right newly recognized by the Supreme Court in Johnson, Section 2255(f)(3) allows
Williams to assert those Johnson-related claims at this time. Nonetheless, as discussed in
Section II below, Williams’ Johnson-based claims lack merit.
Though Williams’ Johnson claims are timely, he cannot use those claims to open the door
to other non-Johnson claims. Zack v. Tucker, 704 F.3d 917, 922–26 (11th Cir. 2013) (habeas
limitations periods apply on a claim-by-claim basis). In Beeman v. United States, 871 F.3d 1215
(11th Cir. 2017), a Section 2255 movant challenged his ACCA sentence partly based on Johnson
and partly on other grounds. The Eleventh Circuit found that, though the movant’s Johnson
claims were timely under Section 2255(f)(3), his claims based on principles and precedent other
than Johnson were not. Beeman, 871 F.3d at 1220. Thus, the Court affirmed the dismissal of
those claims. Id. Consequently, regardless of the timeliness of Williams’ Johnson claims, the
Court must dismiss his other claims, including his argument that his serious drug offenses should
have been counted as one offense. Williams did not raise this claim until far after expiration of
Section 2255(f)’s statute of limitations period, and he provides no grounds for excusing his
For all of these reasons, the Court should DISMISS Williams’ claims that are not based
on Johnson as untimely.
Whether Williams is Entitled to Relief Under Johnson
To obtain relief on his Johnson claims, Williams must show:
(1)  the sentencing court relied solely on the residual clause, as opposed to also
or solely relying on either the enumerated offenses clause or elements clause
(neither of which were called into question by Johnson) to qualify a prior
conviction as a violent felony, and (2)  there were not at least three other prior
convictions that could have qualified under either of those two clauses as a violent
felony, or as a serious drug offense.
Id. at 1221–22. Williams cannot meet either of these two requirements.
As to the first requirement—that Williams prove the Judge Alaimo relied upon the
residual clause— Beeman is again instructive. Like Williams does in this this case, the Section
2255 movant in Beeman argued that the sentencing court improperly relied upon his Georgia
aggravated assault conviction to sentence him under the ACCA. Id. at 1218. The movant argued
that the Johnson decision invalidated his ACCA sentences, because his conviction for aggravated
assault would have qualified as a violent felony under the residual clause of the ACCA. Id.
However, the movant had not pointed to anything in the record suggesting that the district court
actually relied on the residual clause at sentencing. Id. at 1224. Instead, he argued in conclusory
fashion that the sentencing judge must have relied upon the residual clause and that aggravated
assault convictions had historically qualified as ACCA predicate offenses under the residual
clause. Id. The Eleventh Circuit rejected this argument and held that the movant failed to carry
his burden of proof and persuasion. Because the record was unclear, the movant’s claim was
Similarly, Williams has not cited to any evidence that Judge Alaimo solely relied upon
the ACCA’s residual clause when finding that Williams’ Georgia aggravated assault conviction
qualified as a violent felony. Additionally, the Court’s review of the record does not establish
that the residual clause played a part in Williams’ sentencing. (Doc. 135.) At the sentencing
hearing, neither the Court nor counsel referred to the residual clause, paraphrased the residual
clause, or engaged in any discussion or analysis pertinent to the residual clause. Additionally,
the Probation Officer did not refer to the residual clause when concluding that Williams’ Georgia
aggravated assault conviction qualified as an ACCA predicate. Even if the record were silent as
to whether Judge Alaimo counted Williams’ conviction under the residual clause, “where the
evidence does not clearly explain what happened, the party with the burden loses.” Beeman, 871
F.3d at 1225; see also Oxner v. United States, No. 16-17036, 2017 WL 6603584, at *3 (11th Cir.
Dec. 27, 2017) (affirming denial of Johnson relief to Section 2255 movant who conceded that
record was silent as to whether sentencing court counted conviction under residual clause or
enumerated crimes clause). Williams has not carried his burden to prove that Judge Alaimo
relied on the residual clause—solely or otherwise—when sentencing him under the ACCA.
Moreover, even if Williams had proven that Judge Alaimo relied upon the residual clause
when finding his Georgia aggravated assault conviction to be a violent felony under the ACCA,
Williams has failed to prove that he does not have at least three other ACCA predicate
convictions. As an initial matter, Williams does not challenge his January 5, 1982, North
Carolina conviction for assault inflicting serious injury. The record is clear that Probation
Officer Dixon, counsel for the Government, and, most importantly, Judge Alaimo, included this
conviction amongst those which supported Williams’ career offender classification. (Doc. 148,
¶ 20 & p. 15; Doc. 135-1, pp. 10–11, 14.) When explaining Williams’ ACCA sentence, Judge
Alaimo stated, “[H]e has been convicted of two prior violent felonies.” (Doc. 135-1, p. 14.)
However, in his Section 2255 Motion, Williams only argues that his Georgia aggravated assault
conviction cannot be considered an ACCA violent felony after Johnson. (Doc. 149-1, pp. 4–6.)
Moreover, regardless of his record of violent felonies, the record is abundantly clear that
Williams had three convictions for “serious drug offenses” under the ACCA. Prior to his
sentencing, Williams had obtained: (1) a September 15, 1997, conviction for possession of
cocaine with intent to distribute committed on April 24, 1997; (2) a September 15, 1997,
conviction for possession of cocaine with intent to distribute committed on July 23, 1997; and
(3) an October 26, 1999, conviction for possession of cocaine with intent to distribute committed
on September 23, 1999. (Doc. 148, ¶¶ 29, 30, 32.) Williams does not dispute that each of these
convictions was for “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). Nor could he plausibly do so. See O.C.G.A. §§ 16-13-30(b) & (d).
Rather, Williams contends without any clear explanation that, because he was sentenced
for two of these crimes on the same date, they should be counted as one conviction. (Doc. 149-1,
p. 6.) As an initial matter, as set forth in Section I above, this claim is barred by Section
2255(f)’s statute of limitations. Moreover, even if this claim were not untimely, it is unavailing.
The ACCA only requires that predicate offenses be “committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). While Williams was convicted and sentenced of two drug
offenses on the same date, his commission of those offenses was separated by three months.
(Doc. 148, ¶¶ 29, 30, 32.) Under the plain language of the ACCA, Williams was convicted of a
sufficient amount of “serious drug offenses” to earn his armed career criminal designation. 5
Furthermore, even if two of his three serious drug offenses could be combined as Williams argues, he
would still have two convictions for serious drug offenses. When added to his 1982 North Carolina
For these reasons, the Court should DENY Williams’ Motion on the merits.
Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Williams leave to appeal in forma pauperis and a Certificate
of Appealability. Though Williams 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
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).
conviction for assault inflicting serious injury, Williams would have a sufficient amount of ACCA
predicate offenses. In other words, even if the Court agreed with Williams’ arguments and found that his
Georgia aggravated assault conviction is not a violent felony after Johnson and he only has two serious
drug offenses, he would still have three valid predicate convictions (one violent felony and two serious
drug offenses) to support his ACCA sentence.
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 Williams’ pleadings 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 Williams a
Certificate of Appealability, Williams 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 Williams in forma pauperis status on appeal.
For the above-stated reasons, I RECOMMEND this Court DISMISS in part and DENY
in part Williams’ Motion to Vacate, Set Aside, or Correct his Sentence. (Doc. 149.) The Court
should DISMISS Williams’ claims that are not based on Johnson as untimely and should DENY
Williams’ Johnson-based arguments on the merits. Further, I RECOMMEND that the Court
DENY Williams a Certificate of Appealability and in forma pauperis status on appeal and
DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal. Additionally, the Court DISMISSES as moot Williams’ Motion of Judicial Notice,
(doc. 154), and Motion for Status Report, (doc. 155).
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 Williams and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 12th day of February,
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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