United States District Court, M.D. Alabama, Eastern Division
September 3, 2014
SHEAMEAKA LASHAUN EDWARDS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER, Magistrate Judge.
On August 15, 2012, federal inmate Sheameaka Lashaun Edwards ("Edwards") filed this pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1. Edwards challenges her 2004 guilty-plea convictions and sentence for possession with intent to distribute cocaine base and cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) (Counts 1 and 2), and carrying a firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 3). The government maintains Edwards's § 2255 motion is time-barred because it was filed after expiration of the one-year limitation period. Doc. No. 4. The court concludes the government is correct and that the § 2255 motion should be denied because it was not filed within the time allowed by federal law.
A. One-year Limitation Period
The timeliness of Edwards's § 2255 motion is governed by 28 U.S.C. § 2255(f). That section provides:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run 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.
28 U.S.C. § 2255(f).
On March 15, 2004, Edwards pled guilty under a plea agreement to possession with intent to distribute cocaine base and cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1) (Counts 1 and 2), and carrying a firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 3). On June 7, 2007, she was sentenced to a total of 180 months in prison (concurrent terms of 120 months for the distribution counts followed by a consecutive term of 60 months for the § 924(c) count). Judgment was entered by the district court on June 10, 2004. Edwards took no appeal. Therefore, her conviction was "final" on June 21, 2004, the first business day after June 20, 2004. Under 28 U.S.C. § 2255(f)(1), Edwards had until June 21, 2005, to file a timely § 2255 motion. Her § 2255 motion filed on August 15, 2012, is untimely under § 2255(f)(1).
Edwards maintains her § 2255 motion is timely under 28 U.S.C. § 2255(f)(3) because it was filed within one year after the Fourth Circuit Court of Appeals' decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). See Doc. No. 1 at 12. In Simmons, the Fourth Circuit applied Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), to find that a federal defendant's prior North Carolina conviction for non-aggravated, first-time marijuana possession was for an offense not "punishable by imprisonment for a term exceeding one year, " and thus did not qualify as a predicate felony conviction for purposes of the Controlled Substances Act. Simmons, 649 F.3d at 248-49. Carachuri, which was decided by the Supreme Court in June 2010, dealt with under what circumstances a prior conviction for simple possession of a controlled substance can constitute an "aggravated felony" under 8 U.S.C. § 1229b(a)(3). The Supreme Court held that the statutory enhancements for recidivism regarding simple possession under 18 U.S.C. § 844 do not render a prior conviction a conviction for an aggravated felony, where recidivism is demonstrated by the record but not actually alleged or raised, 560 U.S. at 577-82, and that a federal court "cannot, ex post, enhance the state offense of record just because facts known to it would have authorized a greater penalty under either state or federal law, " id. at 576-77.
In seeking to "extend" the limitation period for filing her § 2255 motion, Edwards argues her sentence is unlawful under the holdings of Carachuri and Simmons, an argument predicated on her apparent belief that one of the crimes of which she was convicted in this court in 2004 was possession of a firearm as a convicted felon and that, under Carachuri and Simmons, the prior predicate conviction for the felon-in-possession charge was not a felony. See Doc. No. 1 at 5, 10. The simple answer to this argument is that Edwards was not convicted in this court in 2004 for possession of a firearm as a convicted felon. Rather, the firearm offense to which she pled guilty in 2004 (Count 3) was carrying a firearm during a drug-trafficking crime, a violation of 18 U.S.C. § 924(c). A prior predicate felony is not an element of that offense. Carachui and Simmons are inapplicable to Edwards's 2004 convictions in this court.
In an amendment to her § 2255 motion (Doc. No. 10), Edwards contends she is entitled to resentencing on the drug-distribution counts (Counts 1 and 2) to which she pled guilty in 2004, based on the Supreme Court's recent holding in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). In Alleyne, the Court held that the enhancers described in 18 U.S.C. § 924(c)(1)(A)(ii) and (iii) - brandishing or discharging a firearm - triggering higher mandatory minimum sentences, must be treated as elements of separate, aggravated offenses, to be alleged in the indictment and proved beyond a reasonable doubt. Id. Edwards maintains the district court violated Alleyne by increasing her sentence based on factfinding, under a preponderance-of-the-evidence standard, regarding the drug amounts she was responsible for. Doc. No. 10 at 2. She appears to suggest that the holding in Alleyne is retroactively applicable to her case. Id.
The holding in Alleyne is inapplicable to Edwards's case. The district court sentenced Edwards to the statutory minimum (10 years; see 21 U.S.C. § 841(b)(1)) for the drug-distribution counts based not on factfinding at sentencing regarding drug amounts (or any offense element) but instead based on Edwards's guilty plea, by which she admitted to all the elements of the drug-distribution offenses charged in the indicment. Although the district court sentenced Edwards to the statutory minimum for those counts, the holding of Alleyne would not have prohibited the court from factfinding regarding drug amounts that increased Edwards's sentence under the Sentencing Guidelines. Judicial factfinding that affects the Guidelines calculation does not fit within the category of facts required under Alleyne to be proved beyond a reasonable doubt
Alleyne is also inapplicable to Edwards's case because it does not apply retroactively to cases on collateral review. See Chester v. Warden, 552 F.Appx. 887, 891 (11th Cir. 2014) (" Alleyne 's rule does not apply retroactively on collateral review."); United States v. Harris, 741 F.3d 1245, 1250 n.3 (11th Cir. 2014) (" Alleyne was decided in the context of a direct appeal, and the Supreme Court itself has not expressly declared Alleyne to be retroactive on collateral review... [a]nd Alleyne has not been made retroactive through any combination of cases that necessarily dictate retroactivity."); Barkley v. Hastings, 2014 WL 808079, at *5 (S.D. Ga. Feb. 28, 2014) ("The decision in Alleyne, is an extension' of that in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).... Given that Apprendi is not retroactively applicable on collateral review, it is unlikely the Supreme Court will give the ruling in Alleyne retroactive effect."). Because Alleyne is not retroactively applicable, Edwards's attempt to assert an Alleyne claim in the amendment to her § 2255 motion is untimely.
Finally, Edwards suggests her § 2255 motion, as amended, is timely because the decisions in Carachuri and Alleyne constitute "extraordinary circumstances" that prevented her from filing on time. However, as discussed above, Carachuri and Alleyne are not applicable to Edwards's claims. Therefore, they neither extend the limitation period under § 2255(f) nor provide a basis for equitable tolling of the limitation period. Moreover, judicial decisions where a defendant is a non-party do not constitute extraordinary circumstances to warrant equitable tolling.
In sum, Edwards's § 2255 motion is untimely under § 2255(f)(1).
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the 28 U.S.C. § 2255 motion be denied as it was not filed within the controlling federal limitation period and that this case be dismissed with prejudice. It is further
ORDERED that the parties shall file any objections to this Recommendation on or before September 18, 2014. A party must specifically identify the findings in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's proposed findings and recommendations shall bar a party from a de novo determination by the District Court of issues covered in the Recommendation and shall bar the party from attacking on appeal factual findings accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).