Newell v. United States of America
Filing
6
REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY his second 1 Motion to Vacate/Set Aside/Correct Sentence (2255). It is further RECOMMENDED that the Court DENY Newell a Certificate of Appealability and in forma pauperis statu s on appeal. The Court should DIRECT the Clerk to CLOSE this case and enter the appropriate judgment of dismissal. 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. (Objections to R&R due by 3/16/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/2/2018. (ca)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION
RUSSELL JAY NEWELL,
Movant,
CIVIL ACTION NO.: 5:16-cv-32
v.
CIVIL ACTION NO.: 5:18-cv-03
UNITED STATES OF AMERICA,
(Crim. Case No.: 5:13-cr-9)
Respondent.
ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On March 7, 2014, this Court sentenced Russell Jay Newell (“Newell”) to 188 months’
imprisonment under the Armed Career Criminal Act (“ACCA”) after he pleaded guilty to being a
felon in possession of a firearm, as well as to one count of possession of methamphetamine with
intent to distribute. Newell, who is currently incarcerated at the Federal Correctional Institution
Marianna, Florida, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28
U.S.C. § 2255, on April 22, 2016. (Doc. 56.) 1 The United States moved to dismiss Newell’s
Motion.
(Doc. 58)
Newell has also filed a Motion to Amend his Section 2255 Motion,
(doc. 62), a Second Section 2255 Motion, (doc. 63), and a Motion to Appoint Counsel, (doc. 64).
The Clerk of Court treated these pleadings as a separate Section 2255 Motion and filed them in a
separate civil case.
1
The pertinent record documents in this case are filed on the docket of Newell’s criminal case, United
States v. Newell, 5:13-cr-9 (S.D. Ga. April 3, 2013), and many are not included in Newell’s civil dockets.
Furthermore, as explained below, Newell’s Section 2255 pleadings are divided between two civil dockets.
Thus, for ease of reference and consistency, the Court cites to Newell’ criminal docket in this Order and
Report and Recommendation.
Through his Motion to Amend and Second Section 2255 Motion, Newell seeks to add
claims that are untimely, unavailing, and barred by unnecessary delay.
Newell cannot
supplement his original Motion to add these futile claims. In his original Section 2255 Motion,
Newell contends that the Court must resentence him following the United States Supreme
Court’s decision in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (June 26, 2015).
However, Johnson only invalidated the ACCA’s residual clause, and Newell has failed to
demonstrate that the Court relied upon that clause in any way during his sentencing proceedings.
To the contrary, the record reveals that the Court properly sentenced Newell as an armed career
criminal under other provisions of the ACCA due to his prior convictions for burglary and
manufacturing methamphetamine.
For these reasons, which I detail more fully below, I RECOMMEND the Court
GRANT the Government’s Motion to Dismiss, (doc. 58), and DENY Newell’s Motion to
Vacate, Set Aside, or Correct his Sentence, (doc. 56). Additionally, the Court DENIES Newell’s
Motion to Amend, (doc. 62), and the Court should DISMISS his Second Section 2255 Motion,
(doc. 63). The Court also DENIES Newell’s Motion for Appointment of Counsel. (Doc. 64.)
Further, I RECOMMEND that the Court DENY Newell a Certificate of Appealability and in
forma pauperis status on appeal. The Court should DIRECT the Clerk of Court to CLOSE
these cases and enter the appropriate judgments of dismissal. 2
2
Newell is not entitled to an evidentiary hearing. Newell has the burden of establishing the need for an
evidentiary hearing. Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir. 1984). He would be entitled to a
hearing only if his allegations, if proved, would establish his right to collateral relief. Townsend v. Sain,
372 U.S. 293, 307 (1963). “Under Rules Governing Section 2255 Cases, Rule 4(b), a district court faced
with a 2255 motion may make an order for its summary dismissal “[i]f it plainly appears from the face of
the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled
to relief[.]” Broadwater v. United States, 292 F.3d 1302, 1303 (11th Cir. 2002). Accordingly, no hearing
is required when the record establishes that a Section 2255 claim lacks merit. United States v. Lagrone,
727 F.2d 1037, 1038 (11th Cir. 1984). Additionally, the Court need not hold a hearing where the record
reveals the claim is defaulted. McCleskey v. Zant, 499 U.S. 467, 494 (1991). Newell has not established
2
BACKGROUND
I.
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 Newell’s case
will be better understood by first discussing the federal statutes under which Newell 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)(2). 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). The
ACCA provides, in relevant part:
the term “violent felony” means any 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—
(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[.]
any basis for an evidentiary hearing because the record reveals that all of the issues he raises either lack
merit or are procedurally defaulted, waived, or barred.
3
18 U.S.C. § 924(e)(2)(B). 3
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 clause.” 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, 576 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, 578 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.
While the four enumerated crimes (or the “enumerated crimes clause”) have not suffered
the same fate as the residual clause, they have been the subject of numerous recent decisions of
the Supreme Court and the Eleventh Circuit Court of Appeals. These decisions inform an
analysis that is more complicated than would appear at first blush: whether an offender’s prior
conviction that bears the label of an enumerated crime actually constitutes a conviction for one
of the enumerated offenses for purposes of the ACCA. Rather than merely relying on the label
attached to an offender’s prior conviction, federal courts must assess whether the defendant
3
“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).
4
committed one of the enumerated crimes actually envisioned upon the passage of the ACCA. To
conduct this inquiry, a sentencing court must assess the elements forming the basis of the
offender’s conviction and compare those elements to the “generic crime–i.e., the offense as
commonly understood.” Descamps v. United States, 570 U.S. 254, 257 (2013).
Decisions regarding whether a burglary conviction qualifies as an ACCA predicate
offense demonstrate how courts approach the enumerated crimes.
Though the ACCA
specifically lists “burglary” as a violent felony, merely because a state conviction is labeled a
“burglary” does not automatically qualify it as a predicate offense under the ACCA. Rather,
“[a]s the [ACCA] has been interpreted, a conviction for ‘generic burglary’ counts as a violent
felony, while a conviction for ‘non-generic burglary’ does not.” United States v. Ranier, 616
F.3d 1212, 1213 (11th Cir. 2010), abrogated on other grounds by United States v. Howard, 742
F.3d 1334 (11th Cir. 2014). A “generic” burglary is “any crime, regardless of its exact definition
or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599
(1990). A “non-generic” burglary is one that “do[es] not include all of the elements essential to
generic burglaries,” including burglaries of boats, automobiles, and other non-buildings. Ranier,
616 F.3d at 1214.
As with all enumerated crimes, to assess whether a state conviction for burglary qualifies
as a generic crime, the Court can employ two methods. First, the Court must assess the state
statute under “the categorical approach.” Howard, 742 F.3d at 1345–46. If that assessment does
not end the inquiry, then the Court must determine whether the statute can be assessed under the
“modified categorical approach.” Id. Under the “categorical approach,” courts “compare the
elements of the statute forming the basis of the defendant’s conviction with the elements of the
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‘generic’ crime–i.e., the offense as commonly understood.” Descamps, 570 U.S. at 257. Under
this approach, “[t]he prior conviction qualifies as an ACCA predicate only if the statute’s
elements are the same as, or narrower than, those of the generic offense.” Id. If the statute so
qualifies, then this ends the inquiry: the conviction is a violent felony, and the modified
categorical approach is not needed. Howard, 742 F.3d at 1345.
However, if the burglary statute is broader than the elements of the generic crime, the
statute itself does not qualify as a predicate offense under the categorical approach. Thus, the
court must then determine whether it can apply the “modified categorical approach” to assess
whether the defendant’s conviction under the statute does qualify as a predicate offense. Id.
Courts can use the modified categorical approach in those instances “when a prior conviction is
for violating a so-called divisible statute.” Descamps, 570 U.S. at 257. A divisible statute is a
statute which “sets out one or more elements of the offense in the alternative—for example,
stating that burglary involves entry into a building or an automobile. If one alternative (say, a
building) matches an element in the generic offense, but the other (say, an automobile) does not,
the modified categorical approach permits sentencing courts to . . . determine which alternative
formed the basis of the defendant’s prior conviction.” Id.
To determine which alternative of a divisible statute formed the basis for the prior
conviction, a court can assess a limited class of documents including the charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial
judge. Shephard v. United States, 544 U.S. 13, 16 (2005). These documents are commonly
referred to as “Shephard documents.” If a statute is divisible, the Court can use the Shephard
documents to “do what the categorical approach demands: compare the elements of the crime of
conviction (including the alternative element used in the case) with the elements of the generic
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crime.” Descamps, 570 U.S. at 257. If the Shephard documents show that the defendant was
found guilty under elements of a divisible statute which match elements of the generic offense
instead of those which do not, the prior conviction is an ACCA predicate. Howard, 742 F.3d at
1347. In contrast, “a statute is indivisible if it contains ‘a single, indivisible set of elements.’”
Id. at 1346 (quoting Descamps, 570 U.S. at 258 (defining an indivisible statute as one “not
containing alternative element”)). “If a statute is indivisible, a court may not apply the modified
categorical approach, and that is the end of the inquiry; the prior conviction cannot qualify as an
ACCA predicate regardless of what any Shephard documents may show.” Id.
In Howard, the Eleventh Circuit assessed whether the defendant’s conviction under
Alabama’s third-degree burglary statute qualified as a generic burglary, and thus, a predicate
violent felony under the ACCA. The Eleventh Circuit noted “[t]he elements of generic burglary
under the ACCA are: (1) ‘an unlawful or unprivileged entry into, or remaining in,’ (2) ‘a
building or other structure,’ (3) ‘with intent to commit a crime.’” Id. at 1348 (quoting Taylor,
495 U.S. at 598). The Eleventh Circuit first determined that the Alabama statute the defendant in
Howard was convicted under did not qualify as a generic burglary under the categorical approach
because the elements of the offense were not the same as, or narrower than, those of the generic
offense. Id. (citing Ranier, 616 F.3d at 1215). The Howard court then assessed whether the
statute was divisible, and therefore, was able to be assessed under the modified categorical
approach. The Court noted that, under Descamps, the “key to determining divisibility . . . is
whether the ‘statute sets out one or more elements of the offense in the alternative—for example,
stating that burglary involves entry into a building or an automobile.” Id. (emphasis in original)
(citation and internal quotation marks omitted).
The Alabama statute contains nothing
“suggest[ing] its definition of ‘building’ is drafted in the alternative.” Id. “The items that follow
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each use of the word ‘includes’ in the statute are non-exhaustive examples of items that qualify
as a ‘structure’ and thus count as a ‘building’ under . . . § 13A-7-l(2). . . . The statutory definition
of ‘building’ does not say what is not included. In light of the Descamps decision, illustrative
examples are not alternative elements.” Id. (citation omitted). Thus, the Eleventh Circuit
determined that Alabama’s third-degree burglary statute, § 13A-7-7, is a non-generic and
indivisible statute, and a conviction under that statute “cannot qualify as a generic burglary under
the ACCA.” Id. at 1349.
In Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243 (June 23, 2016), the Supreme
Court further clarified how courts should employ the modified categorical approach. The Court
held the fact that a statute contains multiple alternative means of committing the crime does not
make the statute divisible, if these means are not alternative elements but rather only factual
determinations about an element, and thus, unnecessary to the jury’s determination of guilt for
the crime. 579 U.S. at ___, 136 S. Ct. at 2251–54. Put another way, the Court held that, when
using the modified categorical approach to determine whether a prior conviction is a “violent
felony” or “serious drug offense” under the ACCA, a court should focus on the “elements” of the
statutory offense rather than on that offense’s non-essential “means” of commission. Id.
After Mathis, the Eleventh Circuit analyzed whether a conviction under Georgia’s former
burglary statute can constitute a predicate violent felony under the ACCA. United States v.
Gundy, 842 F.3d 1156, 1166–69 (11th Cir. 2016). In Gundy, the offender had been designated
as an armed career criminal due to his prior burglary convictions under the same Georgia
burglary statute underlying Newell’s Georgia burglary convictions, O.C.G.A. § 16-7-1(a) (2011).
Id.
Applying Mathis, the Eleventh Circuit determined that, though the statute was “non-
generic,”—i.e., broader than generic burglary, it was divisible. Id. The Court reasoned “the
8
plain text of the Georgia statute has three subsets of different locational elements, stated in the
alternative and in the disjunctive . . . effectively creating several different crimes.” Id. at 1167.
“That the Georgia prosecutor must select and identify the locational element of the place
burgled—whether the place burgled was a dwelling, building, railroad car, vehicle, or
watercraft—is the hallmark of a divisible statute.” Id. Therefore, courts may continue to apply
the modified categorical approach to determine whether a defendant’s convictions under
Georgia’s prior burglary statute match the generic definition of burglary, and thus, qualify as
predicate offenses under the ACCA. Id. at 1168–69.
II.
Newell’s Conviction and Sentencing
On April 2, 2013, a grand jury in this District charged Newell with three crimes:
possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count One);
possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(c) (Count Two); and possession of a firearm in furtherance of drug trafficking, in violation
of 18 U.S.C. § 924(c)(1)(A)(i) (Count Three). (Doc. 1.)
Newell and his attorney, Mr. Marc G. Metts, were able to negotiate a plea agreement with
the Government whereby Newell agreed to plead guilty to Count One (possession of a firearm by
a convicted felon) and Count 2 (possession with intent to distribute methamphetamine) in
exchange for the Government moving to dismiss Count Three. (Doc. 38.) On July 8, 2013,
Newell pleaded guilty to Counts One and Two. (Doc. 27.) However, at the time of his first
change of plea, or Rule 11, proceeding, Newell was advised that his maximum term of
imprisonment as to Count One was ten years. (Doc. 38.) The United States Probation Office
subsequently learned that Newell had three qualifying predicate convictions under the ACCA
that increased Newell’s sentencing exposure to a mandatory minimum of fifteen years and a
9
maximum of life imprisonment. Because Newell was not advised of this mandatory minimum at
his initial plea hearing, the Government moved for a supplemental plea hearing. (Doc. 32.) On
January 6, 2014, the Court held a supplemental change of plea hearing. The Court apprised
Newell, among other things, of the fifteen-year mandatory minimum he faced under the ACCA,
and Newell again pleaded guilty to Counts One and Two. (Docs. 34, 35.)
Prior to Newell’s sentencing hearing, United States Probation Officer Scot Riggs
prepared a Presentence Investigation Report (“PSI”). Probation Officer Riggs detailed Newell’s
offense conduct and criminal history and calculated Newell’s statutory penalties, as well as his
advisory Guidelines’ sentencing range. The Probation Officer described Newell’s extensive list
of criminal convictions. (PSI, ¶¶ 34–45.) Pertinently, Probation Officer Riggs detailed an April
14, 1997 conviction for burglary, (id. at ¶ 38); an April 13, 1998 conviction for burglary, (id. at ¶
39); and a November 30, 2009 conviction for manufacturing methamphetamine, (id. at ¶ 42).
When calculating Newell’s offense level, Probation Officer Riggs asserted, “the defendant has at
least three prior convictions for a violent felony or serious drug offense, or both, which were
committed on different occasions (see paragraphs 38, 39, and 42). Therefore, the defendant is an
armed career criminal and subject to an enhanced sentence under the provisions of 18 U.S.C. §
924(e).” (Id. at ¶ 29.) Officer Riggs concluded that Newell’s statutory minimum term of
imprisonment as to Count One was fifteen years and the maximum term was life. (Id. at ¶ 71.)
According to the PSI, Newell’s Guidelines’ range for imprisonment was 188 to 235 months. (Id.
at ¶ 72.)
Newell’s counsel, Mr. Metts, filed objections to the PSI. (PSI Addendum.) Mr. Metts
argued that Newell’s April 1997 convictions for theft by receiving stolen property and for
burglary were unlawfully obtained. (Id. at p. 3.) Mr. Metts contended that Newell was a
10
juvenile at the time of the convictions and that the appropriate pleadings for transferring
Newell’s cases to Superior Court from Juvenile Court were not filed. (Id.) Mr. Metts also
objected to Newell’s designation as an armed career criminal under the ACCA and his
designation as a career offender under the Sentencing Guidelines. (Id. at pp. 1–2.)
The Probation Officer recommended that the Court overrule Mr. Metts’ objections. As to
whether Newell’s prior convictions were unlawfully obtained, Officer Riggs stated that Newell
could not collaterally attack his state convictions in a federal sentencing proceeding. (Id. at p. 3.)
As to Mr. Mett’s career offender objection, the Probation Officer stated in pertinent part:
Each of paragraphs 38 and 39 set forth a separate conviction for the offense of
burglary, which is one of the enumerated offenses in 18 U.S.C. § 924(e)(2)(B)
that qualify as a “violent felony.” Further, each of these two burglary convictions
meets the elements of generic burglary—unlawful, or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a crime. See
Taylor v. United States, 495 U.S. 575, 598–99 (1990). As such, the convictions
in paragraphs 38 and 39 qualify as predicate convictions for ACCA purposes.
(Id. at p. 2.)
Newell appeared before the Honorable William T. Moore for a sentencing hearing on
March 6, 2014. (Doc. 47.) At that hearing, Judge Moore heard from Newell, Newell’s counsel,
and counsel for the Government regarding Newell’s potential sentence. (Id.) This colloquy
began by Mr. Metts offering argument in support of his objections. (Id. at pp. 3–6.) Judge
Moore overruled the objections and adopted the PSI’s findings of fact and conclusions. (Id. at p.
6.) Judge Moore determined, in agreement with the PSI, that the Guidelines called for a sentence
between 188 to 235 months in prison. (Id.) Mr. Metts asked for a sentence at the low end of the
Guideline range, and AUSA Tania Groover concurred with Probation Officer Riggs’
recommendation that a sentence of 188 months’ was appropriate. (Id. at p. 7.) Newell then
made a statement of allocution where he apologized for his crimes and asked Judge Moore to
11
take the difficulties Newell had experienced in his life into consideration when sentencing him.
(Id. at pp. 7–8.)
Judge Moore then pronounced a sentence of 188 months as to Counts One and Two to be
served concurrently. (Id. at pp. 8–9.) Judge Moore found no reason to depart downward from
the advisory Guidelines’ range. In his articulation of how he arrived at his sentence, Judge
Moore stated,
On November 29, 2012, the Defendant fled from a traffic stop driving at a high
rate of speed, and after abandoning his vehicle the Defendant fled on foot carrying
with him an unloaded .40 caliber handgun and a quantity of methamphetamine.
The Defendant was ultimately apprehended and the drugs and the firearm were
recovered. The Defendant has acknowledged his criminal conduct in this case
and he has entered his plea of guilty in a timely manner. Mr. Newell
unfortunately has a lengthy substance-abuse history and an extensive criminal
history including convictions of seven felony offenses, and based upon his
criminal history and the nature of the instant offense the Defendant is classified
for sentencing purposes as both a career offender and an armed career criminal.
Nonetheless, the Court has determined that a sentence at the lower end of the
advisory guideline range is sufficient to address the sentencing factors set forth in
18 United States Code Section 3553(a), specifically, the need for the sentence
imposed to reflect the seriousness of the offense conduct and to afford adequate
deterrence of future criminal conduct.
(Id. at pp. 9–10.)
On March 14, 2014, Mr. Metts filed a Notice of Appeal to the Eleventh Circuit Court of
Appeals on Newell’s behalf. (Doc. 41.) The Eleventh Circuit rejected Newell’s argument that
Judge Moore’s sentence was not reasonable and affirmed that sentence on September 30, 2014.
(Doc. 51.)
III.
Newell’s Section 2255 Motion and Subsequent Pleadings
Newell filed the instant Section 2255 Motion on April 22, 2016. (Doc. 56.) Newell
argued that under Johnson, his sentence violates his right to due process of law. (Id. at p. 4.)
Specifically, he contended that after Johnson struck down the residual clause, his 1997 and 1998
12
convictions for burglary no longer qualify as ACCA predicate offenses. (Id.) The Government
responded in opposition to Newell’s Motion and argued that the Court designated his burglary
convictions as violent felonies under the ACCA’s enumerated crimes clause and not the residual
clause. (Doc. 58.) Newell subsequently sought leave to amend his Section 2255 Motion, (doc.
62), and filed a Second Section 2255 Motion, (doc. 63). In those pleadings, Newell argued that
Metts rendered ineffective assistance of counsel by failing to object to the Court “using
unconstitutionally obtained predicate offenses” to support his ACCA designation. (Doc. 62, pp.
5–8.) The Government filed a Response in opposition to Newell’s Motion to Amend contending
that his new claims were untimely and meritless. (Doc. 67.) Newell filed a Reply to the
Government’s Response. (Doc. 68.)
DISCUSSION
I.
Newell’s Motion to Amend (Doc. 62)
Federal Rule of Civil Procedure 15, which governs amendment of pleadings, is applicable
to 28 U.S.C. § 2255 petitions. Mayle v. Felix, 545 U.S. 644, 655 (2005). Under Rule 15(a), a
party may amend his complaint once as a matter of right within twenty-one (21) days after a
motion is served under Rule 12(b), (e), or (f). Once this time has passed, a party “may amend its
pleading only with the opposing party’s written consent or the court’s leave,” which the court
“should freely give . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “The thrust of Rule
15(a) is to allow parties to have their claims heard on the merits, and accordingly, district courts
should liberally grant leave to amend when ‘the underlying facts or circumstances relied upon by
a plaintiff may be a proper subject of relief.’” In re Engle Cases, 767 F.3d 1082, 1108 (11th Cir.
2014) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). However, a court need not allow
leave to amend “(1) where there has been undue delay, bad faith, dilatory motive, or repeated
13
failure to cure deficiencies by amendments previously allowed; (2) where allowing amendment
would cause undue prejudice to the opposing party; or (3) where amendment would be futile.”
In re Engle Cases, 767 F.3d at 1108–09 (quoting Bryant v. Dupree, 252 F.3d 1161, 1163 (11th
Cir. 2001)).
Through his Motion to Amend, Newell seeks to add claims to his Section 2255 Motion
that have no basis in Johnson. (Doc. 62.) In his Motion to Amend, Newell argues that Mr. Metts
rendered ineffective assistance of counsel regarding the use of his prior convictions. (Id. at pp.
5–7.) He argues that Mr. Metts failed to investigate one of his burglary convictions and his
convictions for theft by receiving stolen property and theft by taking. (Id.) He contends if Mr.
Metts had investigated the circumstances surrounding these convictions, he would have
discovered that the convictions were obtained “unconstitutionally.” (Id.) Specifically, Newell
takes issue with the fact that the Georgia state courts treated him as an adult in regard to these
convictions despite the fact that he was under the age of 18 and the state courts did not properly
transfer his cases from Juvenile Court to Superior Court. (Id.)
The Government correctly argues in its opposition to Plaintiff’s Motion to Amend that
these claims cannot “relate back” to Newell’s Section 2255 Motion. (Doc. 67.) Further, even if
these claims could somehow relate back, Newell did not file his Section Motion until more than
one year after his conviction became final. Consequently, these claims are time-barred and, thus,
futile. Moreover, the claims are unavailing, and Newell fails to provide any good cause for his
undue delay in asserting them.
Section 2255 Motions to Vacate or Set Aside 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;
14
(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.
Newell was sentenced on March 7, 2014, and the Court entered final judgment on that
same date. (Doc. 39.) Newell filed a Notice of Appeal, and the Eleventh Circuit affirmed his
conviction and sentence on September 30, 2014. (Doc. 52.) Newell had ninety days from the
Eleventh Circuit’s judgment to seek a writ of certiorari to the United States Supreme Court.
Sup. Ct. Rule 13 (“The time to file a petition for a writ of certiorari runs from the date of entry of
the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or
its equivalent under local practice.”). On the date that ninety-day period expired, December 29,
2014, Newell’s judgment of conviction became final. See Clay v. United States, 537 U.S. 522,
525, 527 (2003) (Under 2255(f)(1) “a judgment of conviction becomes final when the [90-day]
time expires for filing a petition for certiorari contesting the appellate court’s affirmation of the
conviction.”). Thus, Section 2255(f)(1)’s statute of limitations expired on December 29, 2015.
Newell did not execute his Section 2255 Motion until March 22, 2016, which was months after
the expiration of the applicable statute of limitations period.
Consequently, absent some
exception, Newell’s claims are untimely under Section 2255(f)(1).
Newell 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
15
under Section 2255(f)(3) because Johnson was not decided until April 22, 2016. (Doc. 56, p.
12.) Indeed, in Welch v. United States, 587 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. Newell executed this Motion within one year of the Supreme Court’s decision
in Johnson. Thus, Section 2255(f)(3) allows Newell to assert his Johnson-based claim at this
time. 4
However, though Newell’s Johnson claim is timely, he cannot use that claim 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.
Likewise, through his Motion to Amend, Newell attempts to assert ineffective assistance
of counsel claims that do not rely upon Johnson or any right recently recognized by the Supreme
Court. He does not identify any impediment that prevented him from bringing his ineffective
assistance of counsel claims within a year of his conviction becoming final. He also does not
raise a piece of newly discovered evidence. Thus, even if Newell had asserted his ineffective
assistance of counsel claims in his original Section 2255 Motion, those claims would be untimely
by approximately three months.
Indeed, Newell’s ineffective assistance of counsel claims are even more untimely than
that. Newell did not file his Motion to Amend until October 16, 2018, more than two years after
4
Nonetheless, as discussed below, Newell’s Johnson-based claims lack merit
16
his conviction became final. (Doc. 62.) These additional claims do not relate back to his
original Section 2255 Motion. “An amendment to a pleading relates back to the date of the
original pleading when . . . the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original
pleading.” Fed. R. Civ. P. 15(c)(1)(B). In order to relate back, “the untimely claim must have
more in common with the timely filed claim than the mere fact that they arose out of the same
trial and sentencing proceedings. Instead, in order to relate back, the untimely claim must have
arisen from the same set of facts as the timely filed claim, not from separate conduct or a
separate occurrence in both time and type.” Davenport v. United States, 217 F.3d 1341, 1344
(11th Cir. 2000).
“The critical issue in Rule 15(c) determinations is whether the original
complaint gave notice to the defendant of the claim now being asserted.” Moore v. Baker, 989
F.2d 1129, 1131 (11th Cir. 1993). “[W]hile Rule 15(c) contemplates that parties may correct
technical deficiencies or expand facts alleged in the original pleading, it does not permit an
entirely different transaction to be alleged by amendment.” Dean v. United States, 278 F.3d
1218, 1221 (11th Cir. 2002).
Newell’s proposed claims of ineffective assistance of counsel claims do not arise out of
the same conduct, transaction, or occurrence as his Johnson claim. His Johnson claim centers on
the definition of “violent felony” under the ACCA. In contrast, his ineffective assistance of
counsel claims center on whether Mr. Metts properly investigated and contested the
circumstances underlying his prior convictions. The Government was not noticed of these new
claims through Newell’s original Section 2255 Motion. In the Section 2255 context, even when
faced with claims that have more connection than Newell’s, the Eleventh Circuit has repeatedly
found that new claims do not relate back to the original motion. See, e.g., Farris v. United
17
States, 333 F.3d 1211, 1215 (11th Cir. 2003) (new claims that a prior conviction was
constitutionally invalid and the quantity of drugs was improperly decided did not relate back to
original claims concerning interpretation of the sentencing guidelines and that counsel was
ineffective for failing to advise defendant of his sentencing exposure as a career offender); Pruitt
v. United States, 274 F.3d 1315, 1316–19 (11th Cir. 2001) (new claims of ineffective assistance
of counsel, abuse of discretion by the district court, and prosecutorial misconduct did not relate
back to original claims that the sentence violated the ex post facto clause); Davenport, 217 F.3d
at 1346 (new claims that counsel was ineffective for allowing defendant to be sentenced on drugs
that were not part of same course of conduct, for relying on summary lab report, and for failing
to advise that a plea agreement might be possible did not relate back to original claims that
counsel was ineffective for failing to raise arguments regarding drug composition and weight or
claims that government witness committed perjury).
Further, the record reflects that Mr. Metts did investigate the circumstances surrounding
Newell’s prior convictions and argued that this Court should not use those convictions at
sentencing. In his Objections to the PSI, Mr. Metts argued that the Court should not use
Newell’s conviction for theft by receiving stolen property or his 1997 conviction for burglary to
designate him an armed career criminal under the ACCA or to calculate his Guidelines range.
(PSI Addendum, p. 3.) Mr. Metts argued that Newell was not “legally convicted as an adult” for
those offenses. (Id.) However, Probation Officer Riggs opposed this objection contending that
“with the sole exception of convictions obtained in violation of the right to counsel, a defendant
in a federal sentencing proceeding has no right to collaterally attack the validity of previous state
convictions that are used to enhance his sentence under the ACCA.” (Id. (citing Custis v. United
States, 511 U.S. 485 (1994).) At the sentencing hearing, Mr. Metts reiterated his objection and
18
stated that he had combed through “a very large clerk’s file” regarding the state conviction and
did not find a motion to transfer the case to the Superior Court from the Juvenile Court. (Doc.
47, pp. 4–6.) Ultimately, Judge Moore overruled the objection agreeing with the United States
Probation Officer that Newell could not collaterally attack his state court conviction through the
federal sentencing proceeding. (Id.)
Thus, even if Newell’s claims were not untimely, Mr. Metts took the very action that
Newell claims he should have taken and made the very arguments that Newell claims he should
have made. As such, Newell cannot show (1) that his counsel’s performance was deficient, i.e.,
the performance fell below an objective standard of reasonableness, or (2) that he suffered
prejudice as a result of that deficient performance. Strickland v. Washington, 466 U.S. 668,
685–686 (1984). Consequently, his claims would be futile on the merits.
For all of these reasons, the claims that Newell proposes to add through his Motion to
Amend are untimely and unavailing. Therefore, it would be futile for Newell to supplement his
Section 2255 Motion with these claims. Moreover, Newell has failed to explain why he waited
more than twenty months after he filed his original Section 2255 Motion to seek leave to amend
that Motion.
Accordingly, the Court DENIES Newell’s Motion to Amend his Section 2255 Motion,
(doc 62).
II.
Newell’s Second Section 2255 Motion (Doc. 63)
On January 16, 2018, at the same time that Newell filed his Motion to Amend, Newell
filed a Second Motion to Vacate pursuant to 28 U.S.C. § 2255. (Doc. 63.) Just as in his Motion
to Amend, in this second Section 2255 Motion, Newell argued that Mr. Metts failed to object to
the use of his burglary and theft by taking convictions. (Id. at p. 4; Doc. 65, pp. 4–5.) Because
19
Newell labeled his pleading as a Motion to Vacate, the Clerk of Court docketed this Motion as a
Second 2255 Motion, and opened a new civil matter, Newell v. United States, Case No. 5:18-cv3 (S.D. Ga. Jan. 16, 2018). However, because Newell’s original Section 2255 Motion was still
pending, the Court must treat this subsequent motion as a motion to amend and not a successive
Section 2255 Motion. United States v. Williams, 185 F. App’x 917, 919 (11th Cir. 2006) (“As
their § 2255 motion was still pending, [movant’s] subsequent motion should not have been
considered a successive § 2255 motion, but instead a motion to amend their § 2255 motion.”)
(citing Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002)).
Newell raises the same arguments in his Section 2255 Motion as his Motion to Amend,
and I will not belabor the points explained above. For the reasons previously stated, the claims
that Newell seeks to add are untimely, unavailing, futile, and brought after undue delay.
Consequently, the Court should deny Newell’s effort to amend his first Section 2255 Motion
with the claims asserted in his second Motion, and the Court should DISMISS Newell’s second
Section 2255 Motion, (doc. 63).
III.
Newell’s Motion to Appoint Counsel (Doc. 64)
Newell also requests that the Court appoint counsel to represent him on his Section 2255
Motion. (Doc. 64.) There is no automatic constitutional right to counsel in habeas proceedings.
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); United States v. Webb, 565 F.3d 789, 794
(11th Cir. 2009) (citing Barbour v. Haley, 471 F.3d 1222, 1227 (11th Cir. 2006)); Hooks v.
Wainwright, 775 F.2d 1433, 1438 (11th Cir. 1985); see also Barbour, 471 F.3d at 1227–32 (even
defendants sentenced to death do not enjoy a constitutional right to post-conviction counsel).
Under 18 U.S.C. § 3006A(a)(2)(B), the Court may appoint counsel for an indigent litigant
seeking relief under 28 U.S.C. § 2255, but such requests are discretionary when “due process or
20
the ‘interests of justice’” so require. Hooks, 775 F.2d at 1438; Norris v. Wainwright, 588 F.2d
130, 133 (5th Cir. 1979); see also 28 U.S.C. § 2255(g) and Rule 8(c) of the Rules Governing
Section 2255 Cases in the United States District Courts (authorizing appointment of counsel
pursuant to 18 U.S.C. § 3006A). Moreover, appointment of counsel is “a privilege that is
justified only by exceptional circumstances[.]” McCall v. Cook, 495 F. App’x 29, 31 (11th Cir.
2012).
The Court does not find any exceptional circumstances justifying the appointment of
counsel in this case. An evidentiary hearing is not required in this case, and the interests of due
process and justice do not otherwise require counsel.
Newell does not lay out any such
circumstances in his Section 2255 Motion, his Motion to Appoint Counsel, or his other
pleadings. Therefore, the Court DENIES Newell’s request for appointment of counsel.
IV.
Newell’s Section 2255 Motion (Doc. 56)
In his first Section 2255 Motion, Newell contends that Judge Moore relied upon the
ACCA’s residual clause when finding his burglary convictions to be “violent felonies.” (Doc.
56, p. 4.) As explained above, the Supreme Court struck down the residual clause in Johnson.
However, to prove a Johnson claim, Newell 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.
Beeman, 871 F.3d at 1221–22. Newell cannot meet either of these two requirements.
A.
Whether the Court Relied upon the Residual Clause at Newell’s Sentencing
In the PSI, Probation Officer Riggs stated that Newell “has at least three prior convictions
for a violent felony or serious drug offense, or both, which were committed on different
21
occasions (see paragraphs 38, 39, and 42). Therefore, the defendant is an armed career criminal
and subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e).” (PSI at ¶ 29.)
In turn, Paragraphs 38, 39, and 42 of the PSI detailed the following three convictions: (1)
Newell’s April 14, 1997 conviction for burglary in the Superior of Ben Hill County Georgia; (2)
his April 13, 1998 conviction for burglary in the Superior Court of Ben Hill County, Georgia;
and (3) his November 30, 2009 conviction for manufacturing methamphetamine in the Superior
Court of Coffee County, Georgia. (PSI at ¶¶ 38, 39, 42.) After Mr. Metts objected to Newell’s
ACCA classification, Officer Riggs responded that the separate convictions described in
Paragraphs 38 and 39 were for burglary, “which is one of the enumerated offenses in 18 U.S.C.
§ 924(e)(2)(B) that qualify as a ‘violent felony.’” (PSI Addendum, p. 2 (emphasis added).)
Thus, it is abundantly clear that Officer Riggs relied upon the ACCA’s enumerated
crimes provision and not the residual clause when concluding that Newell was an armed career
criminal. Moreover, Riggs went on to explain that both of Newell’s burglary convictions met the
definition of “generic burglary.” (Id.) By relying upon the Shepard documents to explain that
Newell’s conviction met the definition of generic burglary (unlawful entry into a structure, with
the intent to commit a crime therein), the Probation Officer clearly conducted an enumerated
crimes analysis and not a residual clause analysis. Judge Moore adopted Probation Officer
Riggs’ findings of facts and conclusion at the sentencing hearing. (Doc. 47, p. 6.)
At no point in the PSI or during the sentencing hearing did Judge Moore, Newell’s
counsel, counsel for the Government, or Probation Officer Riggs discuss the residual clause,
quote the residual clause, paraphrase the residual clause, or even indirectly refer to the residual
clause. The sentencing court did not address, much less decide, whether any of Newell’s
22
convictions “otherwise involve conduct that present a serious potential risk of physical injury to
another.” The residual clause played no part in Newell’s sentencing proceedings whatsoever.
The record unequivocally establishes that the Court relied upon the ACCA’s enumerated
crimes clause and its enumeration of “burglary” as a crime of violence when sentencing Newell.
See Oxner v. United States, No. 16-17036, 2017 WL 6603584, at *2–3 (11th Cir. Dec. 27, 2017)
(affirming district court’s finding, based on circumstantial evidence, that the sentencing court
relied on the enumerated crimes provision to enhance defendant’s sentence). The Supreme Court
in Johnson emphasized 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.” 576 U.S. at
___, 135 S. Ct. at 2563. Because the record establishes that the residual clause played no part in
Newell’s sentencing proceedings, Johnson affords him no relief.
Moreover, even if the record were unclear as to whether Judge Moore relied on the
residual clause or the enumerated crimes clause, the Court still must deny Newell’s Motion.
Uncertainty is not enough to obtain Johnson relief. Rather, Newell possesses the burden to
establish that Judge Moore “more likely than not” relied on the residual clause. Beeman, 871
F.3d at 1221–22. Thus, even if the record were silent on that issue, “where the evidence does not
clearly explain what happened, the party with the burden loses.” Id. at 1225; see also Oxner,
2017 WL 6603584, at *3 (affirming denial of Johnson relief to Section 2255 movant who
conceded that record was silent as to whether he was sentenced under residual clause or
enumerated crimes clause). Newell has not carried his burden to prove that Judge Moore relied
on the residual clause—solely or otherwise—when sentencing him under the ACCA.
Further, even if Newell had proven that Judge Moore solely relied upon the residual
clause, he has failed to prove that he does not have at least three convictions for “violent
23
felonies” or “serious drug offenses” under the other clauses of the ACCA. As explained below,
prior to his sentencing, Newell had obtained two convictions that qualify as “burglary” under the
ACCA’s enumerated crimes clause and one conviction for a “serious drug offense[].”
B.
Whether Newell has Three Predicate Offenses Absent the Residual Clause
Newell argues in his Response to the Motion to Dismiss that his Georgia burglary
convictions do not qualify as “burglaries” as enumerated in the ACCA. (Doc. 60.) However,
Newell did not raise this argument in his original Section 2255 Motion. Furthermore, even if
Newell had raised these arguments in his Motion, these claims would be untimely. As explained
above, Newell did not file his Section 2255 Motion until more than a year after his conviction
became final. While Section 2255(f)(3) allows Newell to bring his Johnson claims at the time he
filed his motion, he cannot use Johnson to open the door to these untimely non-Johnson claims.
Beeman, 871 F.3d at 1220; Zack v. Tucker, 704 F.3d at 922–26. The fact that Judge Moore did
not rely upon the residual clause is fatal to Newell’s Johson claims, and the Court need not
conduct any further analysis of his Section 2255 Motion.
However, in the interest of completeness, the Court explains that Newell had three prior
convictions that qualify as violent felonies or serious drug offenses under the ACCA. Newell
does not contest the fact that his November 30, 2009, conviction for manufacturing
methamphetamine qualifies as “serious drug offense.” Nor could he plausibly do so. Under the
ACCA, “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). At the relevant time, Georgia law provided that “it is unlawful for any person
to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute
24
any controlled substance.” O.C.G.A. § 16-13-30(b) (2009). The punishment for “any person
who violates [that subsection] with respect to a controlled substance in Schedule I or Schedule
II” was, for a first offense, “not less than five years nor more than 30 years.” O.C.G.A. § 16-1330(d) (2009); see also O.C.G.A § 16-13-26 (list of Schedule II controlled substances). Thus,
Newell’s manufacturing drug conviction gives him one strike towards his ACCA designation.
Additionally, as laid out above, Newell was convicted of burglary in the Superior Court
of Ben Hill County, Georgia in April of 1997 and April of 1998. (PSI at ¶¶ 38, 39.) At the time
of Newell’s burglary convictions, Georgia’s burglary statute provided that “[a] person commits
the offense of burglary when, without authority and with the intent to commit a felony or theft
therein, he enters or remains within the dwelling house of another or any building, vehicle,
railroad car, watercraft, or other such structure designed for use as the dwelling of another.”
O.C.G.A. § 16-7-1 (1998). In his Response to the Motion to Dismiss, Newell essentially argues
that his conviction under this statute cannot qualify as a violent felony under the enumerated
clause. (Doc. 60 (citing Mathis, 579 U.S. ___, 136 S. Ct. 2243)).
Fatal to Newell’s argument is the Eleventh Circuit’s decision in Gundy, which post-dates
Newell’s Response. As laid out above, in Gundy, the Eleventh Circuit squarely rejected the
argument that Newell makes here. 842 F.3d at 1166–69. The Court found that, though O.C.G.A.
§ 16-7-1(a) was “non-generic,”–i.e., broader than generic burglary, it was divisible.
Id.
Therefore, even after Mathis, courts may continue to apply the modified categorical approach to
determine whether a defendant’s conviction under O.C.G.A. § 16-7-1(a) matches the generic
definition of burglary, and thus, qualifies as a predicate offense under the ACCA. Id. at 1168–
69. Probation Officer Riggs did just that in this case, and Judge Moore adopted his conclusions.
25
Further, Newell has not even attempted to show that Officer Riggs’ modified categorical
analysis contained any error. Nor could Newell do so. Because O.C.G.A. § 16-7-1(a) is
divisible, the Court “must determine which of the alternative elements in Georgia’s burglary
statute formed the basis of [Newell’s] prior burglary convictions and whether those elements
match the generic definition of burglary.” Id. at 1168. To make this determination, the Court
looks at the Shepard documents, including the charging documents, to determine of what crime,
with what elements, Newell was convicted. Id. As to his April 1997 burglary conviction, the
State charged that Newell unlawfully entered the residence of Jerrold Wierth with the intent to
commit a theft. (PSI at ¶ 38.) Newell pleaded guilty to this charge and received a ten-year
probated sentence. (Id.) As to his April 1998 burglary conviction, the State charged that Newell
unlawfully entered the home of June Martin with intent to commit a theft. (Id. at ¶ 39.) The
court sentenced Newell to five years’ imprisonment after he pleaded guilty to that crime. (Id.)
Thus, using the Shepard documents concerning Newell’s Georgia burglary convictions, Officer
Riggs ensured that the convictions involved: (1) an unlawful entry; (2) into a dwelling house or
building; (3) with intent to commit a crime therein. “These elements substantially conform to the
generic definition of burglary.” Gundy, 842 F.3d at 1169 (citing Howard, 742 F.3d at 1342).
Therefore, Newell’s convictions qualified as a “burglary” under the ACCA’s enumerated
crimes clause. As such, the Court properly counted these two convictions as “violent felonies”
when sentencing Newell.
When combined with Newell’s conviction for a “serious drug
offense,” Newell has three strikes, completing his ACCA designation.
For all of these reasons, Newell is not entitled to relief under Johnson, and the Court
should DENY his Section 2255 Motion, (doc. 56).
26
III.
Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Newell leave to appeal in forma pauperis and a Certificate of
Appealability. Though Newell 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. Newell, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). 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
27
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 Newell’s 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 Newell a
Certificate of Appealability, Newell 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 Newell in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court GRANT the Government’s
Motion to Dismiss, (doc. 58), and DENY Newell’s Motion to Vacate, Set Aside, or Correct his
Sentence, (doc. 56). Additionally, the Court DENIES Newell’s Motion to Amend, (doc. 62),
28
and the Court should DISMISS his second Section 2255 Motion, (doc. 63). The Court also
DENIES Newell’s Motion for Appointment of Counsel. (Doc. 64.) Further, I RECOMMEND
that the Court DENY Newell a Certificate of Appealability and in forma pauperis status on
appeal. The Court should DIRECT the Clerk of Court to CLOSE these cases and enter the
appropriate judgments of dismissal.
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.
29
The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon Newell and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 2nd day of March,
2018.
R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
30
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