Myers v. United States Of America

Filing 13

ORDER directing the government to respond within 30 days of the date the Myers mandate is entered. Signed by Magistrate Judge G. R. Smith on 7/6/15. (bcw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ANDRE CHRISTOPHER MYERS,

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Movant,

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V.

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UNITED STATES OF AMERICA,

Case No. CV413-221
CR495- 123

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Respondent.

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ORDER
In 2013, Andre Christopher Myers filed his fourth 28 U.S.C. § 2255
motion attacking the same drug conviction that he has previously
challenged under § 2255. CR495-123, doe. 1206, see also docs. 803, 849,
863 (first § 2255 motion and rulings denying it); does. 1063 & 1064
(second § 2255 motion and adverse ruling); docs. 1155 & 1161 (third §
2255 motion and adverse ruling). Applying § 2255 Rule 4(b), the Court
sua sponte dismissed it as successive. Doe. 1216, adopted, doe. 1219. It did
that prior to the Eleventh Circuit's issuance of Boyd v. United States, 754
F.3d 1298, 1301-02 (11th Cir. 2014) (prisoner's fourth § 2255 motion,
seeking resentencing in light of vacatur of state convictions used to
enhance his federal drug sentence, was not successive; basis of prisoner's

motion, that his state court convictions had been vacated, did not occur
until after his initial motion took place, and prisoner's second and third
motions were not resolved on merits, since they were dismissed as second
or successive). Applying Boyd, the Eleventh Circuit held that Myers' §
2255 motion was not successive "because his actual innocence claim based
on the vacatur of his state-court conviction did not exist [in 2002, when
this Court denied his first § 2255 motion on the merits]." Myers v. United

States, 2015 WL 3482842 (11th Cir. June 3, 2015); doc. 1252. 1

1

Boyd applied
Stewart v. United States, 646 F.3d 856 (11th Cir.2011), [where] we addressed
the issue of whether Stewart's second-in-time § 2255 motion, which challenged
his sentence based on the vacatur of his prior state court convictions that did
not exist at the time that he filed his initial § 2255 motion, was second or
successive. Stewart's judgment became final in May 2003. Id. at 857. He filed a
"Motion for Equitable Tolling of the Time Period for the Filing of a § 2255
[Motion]," which was denied, and a § 2255 motion, which was dismissed as
time-barred, in 2004. Id. In 2008, Stewart's state court convictions were
vacated. The following month Stewart filed a second § 2255 motion, requesting
the vacatur of his career offender enhancement pursuant to Johnson v. United
States, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). Stewart, 646 F.3d
at 858. The district court dismissed Stewart's second § 2255 motion as
successive. Id. We reversed and held that because the factual basis for Stewart's
claim did not exist before his proceedings on his initial § 2255 motion concluded,
Stewart's numerically second motion was not second or successive and §
2255(h)'s gatekeeping provision did not apply. Id. at 865.

Boyd, 754 F.3d at 1301-02. Nevertheless, movants cannot sit on vacated state court
convictions. They must file their § 2255 motions within one year of that new fact.
Boykin v. United States, 592 F. App'x 809, 812 (11th Cir. 2014) (§ 2255 motion,
challenging sentence enhancement that had been made on the basis that one of three
predicate convictions had been vacated by state court, was successive; claim regarding

Hence, Myers' motion is back before the Court on preliminary
review under Rule 4(b). Again, he claims that he has gotten a prior state
court conviction -- used to enhance his sentence here -- vacated. He
argues that he is entitled to relief pursuant to McQuiggin v. Perkins, 569
U.S. , 133 S. Ct. 1924 (2013) (actual innocence meets the miscarriage
of justice exception, which applies to the time bar in 28 U.S.C. §
2244(d)(1), so a petition based on actual innocence is timely, even if filed
after the one-year period) and Spencer v. United States, 727 F.3d 1076 7
1091 (11th Cir. 2013) (erroneous career offender designation is cognizable
under a timely filed, § 2255 motion even in the case of a defendant
sentenced after Booker). Doc. 1206 at 14-19.
The Court's § 2255 form asked Myers to explain why his § 2255
motion is not barred by § 2255(f)'s one-year time limit. Doc. 1 at 12.
Myers does not contend that the state court conviction was recently
vacated. In fact, it was in 2008. Myers, 2015 WL 3482842 at * 1 ("In 2008,
vacated state conviction had been in existence when movant filed his second motion
and district court denied that claim on the merits as untimely, having been filed over
two months past one-year filing deadline); see also Futch v. United States, 2015 WL
160084 at * 1 (S.D. Ga. Jan. 12, 2015) ("a petitioner has one year from the date the
state court conviction was vacated to file a corresponding habeas petition in federal
court, regardless of whether that petition would be considered successive or not.")
(applying Bazemore v. United States, 595 F. App'x 869, 873 (11th Cir. 2014)). The
Boyd panel, incidentally, remanded Boyd's case to determine whether his § 2255
motion was timely. Boyd, 754 F.3d at 1301 n. 4.
3

after [this Court] had already denied Myers's first § 2255 motion on the
merits, a state court vacated one of Myers's previous felony drug
convictions."). Rather, he relies on McQuiggin's issuance in 2013, the
year he signed the instant § 2255 motion. Id. at 15, 16. So, he invokes §
2255(f)(3)'s newly recognized right exception to restart the one-year
limitations clock.
It is true that actual innocence can serve "as a gateway through
which a petitioner may pass whether the impediment is a procedural bar
or expiration of the statute of limitations." McQuiggin, 133 S. Ct. at
1928. But Myers is out of luck if this Court joins others in ruling that
McQuiggin is not a " 2255(f)(3) right" because it is not retroactive in
collateral review cases. 2 Beyond that, he must show that he was
The Court has not located an Eleventh Circuit case that definitively speaks to this.
As explained elsewhere:
2

McQuiggin is limited to "an untimely first federal habeas petition alleging a
gateway actual-innocence claim." [133 S.Ct.] at 1934. McQuiggin requires that
a claim of actual innocence meet the "demanding" standard of Schiup v. Delo,
513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Id. at 1936. The Court did
not announce that McQuiggin was a new and retroactively-applicable right. See
Stewart v. United States, No. 15-cv-73--JPS, 2015 WL 477226 (E.D.Wis. Feb.5,
2015); Thomas v. Cross, No. 14-cv-01103-DRH, 2014 WL 5849093 (S.D.I11.
Nov.12, 2014) (the Supreme Court has not declared McQuiggin to be
retroactive).
Rutledge v. United States, 2015 WL 1455634 at * 2 (S.D. Ind. Mar. 30, 2015); Cf.
11.

sentenced higher than the statutory maximum even without a sentencing
enhancement. See 28 U.S.C. § 2255(a) (authorizing defendants to attack a
sentence that is in excess of that maximum as authorized by law), cited in
Clayton v. United States, 2013 WL 3381373 at * 3 (W.D.N.C. July 8, 2013).
Other obstacles confront Myers. He is basically arguing "that he
should be resentenced because one of his prior drug offenses no longer
qualifies as a predicate felony for purposes of the career offender
enhancement and that this change is sufficient to toil the statute of
limitations under Section 2255(f)." Holland v. United States, 2015 WL
1262626 at * 3 (E.D. Va. Mar. 18, 2015). Under Holland's reasoning
Bazemore, 595 F. App'x at 873 (Stewart was neither a new fact that began a new
limitation period under § 2255(f)(4) nor could it be applied retroactively). Hence, in a
somewhat similar case the court ruled that:
McQuiggin also did not restart the clock on Petitioner's statute of limitations.
It does not appear that the case announced a "constitutional right" that "has
been newly recognized by the Supreme Court and made retroactively applicable
to cases on collateral review," as AEDPA requires if a Supreme Court decision is
to set the start date for the statute of limitations. 28 U.S.C. § 2244(d)(1)(C).
McQuiggin was not the first case to recognize that "a prisoner ' ... may have his
federal constitutional claim considered on the merits if he makes a proper
showing of actual innocence." McQuiggin, 133 S.Ct. at 1931 (quoting Herrera
v. Collins, 506 U.S. 390, 404-05, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)).
Moreover, it is not apparent that the McQuiggin rule is a constitutional rule,
and the case's holding has not been made retroactively applicable to cases on
collateral review.
Burton v. Wenerowicz, 2015 WL 409791 at * 2 (E.D. Pa. Jan. 30, 2015).

(applying Fourth Circuit law), Myers would not meet the threshold
requirement for "actual innocence" as set forth in McQuiggin because he
is not claiming that "in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable
doubt." McQuiggin, 133 S. Ct at 1928. Myers' state-court success, then, is
just a "status change [that] merely alters the offense's legal significance
and does not toll Section 2255's one-year statute of limitations. As such,
Section 2255(f)(1), 'the date on which the judgment of conviction becomes
final,' controls."

Id.

Hence, this reasoning goes, his claim would be

time-barred on these additional grounds.'
Holland's ruling bleeds into the conviction/sentencing distinction
explored by other courts: Whether McQuiggin extends to noncapital
sentences such as Myers'.

See United States v. Robinson, 2013 WL

5874012 at * 3 (D. Kan. Oct. 30, 2013) (McQuiggin does not extend the

The appellate courts have held that actual innocence applies in the context of capital
sentences as well as convictions. Sawyer v. Whitley, 505 U.S. 333, 341-42 (1992)
(recognizing the actual innocence of sentence exception in capital cases); Sibley v.
Culliver, 377 F.3d 1196, 1204-05 (11th Cir. 2004) (applying actual innocence in the
capital context). The Eleventh Circuit has reserved the question whether a prisoner
can be actually innocent with respect to a noncapital sentence. McKay v. United
States, 657 F.3d 1190, 1196 (11th CIr. 2011) ("Neither the Supreme Court nor this
Court has yet ruled on whether [the] actual innocence of sentence exception extends to
the noncapital sentencing context.").
10

Supreme Courts previous rulings on the actual innocence exception to
noncapital sentences); United States v. Ellis, 2015 WL 2063987 at * 2
(E.D. Va. Apr. 30, 2015) ("McQuiggin does not apply to habeas claims
based on actual innocence of a sentence." United States v. Jones, 758 F.3d
579 ) 587 (4th Cir. 2014), cert. denied, - U.S. -, 135 S.Ct. 1467
(2015)."). An unpublished Eleventh Circuit case employs reasoning that
does not bode well for Myers. Young v. FCC Coleman, 587 F. App'x 542,
547 (11th Cir. 2014) ("Moreover, Young's purported actual-innocence
claim is actually a sentencing-error claim under [18 U.S.C.] § 924(e), as
opposed to the factual-innocence claim at issue in McQuiggin. See id. at
1935 ('To invoke the miscarriage of justice exception to [the federal
habeas] statute of limitations, ... a petitioner must show that it is more
likely than not that no reasonable juror would have convicted him in the
light of the new evidence. 1

). 11 ). 4

Hence, that court seemed to say that in the noncapital context one may invoke
McQuiggin retroactively only for convictions, not sentences. The opposite occurred in
Johnson v. United States, 2015 WL 2094569 (M.D. Fla. May 5, 2015), where the court
entertained a McQuiggin-based claim for relief in an otherwise untimely filed § 2255
motion: "Petitioner . . . asserts that he is actually innocent of his ACCA sentence
enhancement for count three to overcome the statute of limitations." Id. at * 2. The
court denied it, however, because the movant had "not demonstrated that he is
actually innocent of his convictions to overcome the untimely filing of his § 2255
motion." Id.
7

Finally, Myers' only other ground (doc. 1206 at 5, 16-18) relies on
Alleyne v. United States, - U.S. -, 133 S. Ct. 2151 (2013), but that is
not retroactive. Barkley v. Warden, FCC Jesup, 2015 WL 3371873 at * 1
(11th Cir. May 26, 2015); accord King v. United States, 2015 WL 1898394
at * 4 (11th Cir. Apr. 28, 2015) ("neither Alleyne nor Descamps Iv. United
States, 570 U.S. , 133 S.Ct. 2276 (2013)] apply retroactively on
collateral review as required by § 2255(h)(2), and, thus, King's § 2255
motion was not timely under § 2255(1)(3).").
Nevertheless, the Court will hear from the parties. The government
is DIRECTED to respond within 30 days of the date the Myers mandate
is entered. Myers is free to file as many briefs as he wants whenever he
wants, but the Court will not wait for him unless he complies with
S.D.Ga.Loc.Civ.R. 7.6 (authorizing reply briefs but imposing notice
requirements and time limits); see also Brown v. Chertoff, 2008 WL
5190638 at *1 (S.D. Ga. Dec. 10, 2008) (reminding that "[o]nce the initial
round of briefs have been flied, subsequent replies run the risk of 'sudden
death.' That is, the Court is free to issue its decision at any time.").

8

SO ORDERED, this __ day of July, 2015.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA