United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, Magistrate Judge.
On December 13, 2013, petitioner John Edward White ("White") filed a pro se motion construed by this court as a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 1. White challenges his conviction and 235-month sentence imposed by the district court in January 2007 following his guilty plea to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He argues that the district court violated the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), by applying the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e),  at his sentencing when his prior ACCA-qualifying convictions were not charged as offense elements in his federal indictment and proved beyond a reasonable doubt. Doc. No. 1 at 1-3. White also seems to argue that his conviction is infirm because the predicate prior felony conviction for second-degree theft of property alleged in his federal indictment did not constitute a felony since he spent only one day of the 10-year sentence imposed in that case in actual confinement. Id. at 1-4.
The government answers that White's § 2255 motion is time-barred because it was filed well after expiration of the one-year limitation period in 28 U.S.C. § 2255(f). Doc. No. 8 at 9-13. The government also argues that White's § 2255 motion should be dismissed based on his waiver, in the plea agreement, of his right to collaterally attack his sentence. Id. at 7-9. Because the first rationale is dispositive of White's § 2255 motion, and because White's claims plainly lack merit, the court pretermits discussion of the effect of the waiver provision in the plea agreement.
A. Alleging ACCA-qualifying Convictions in Indictment
White contends the enhancement of his sentence under the ACCA violated the holding in Apprendi v. New Jersey, 530 U.S. 466 (2000),  because his prior ACCA-qualifying convictions were not charged as offense elements in his federal indictment and proved beyond a reasonable doubt. See Doc. No. 1 at 1-3. However,
Under binding precedent, a prior conviction need not be alleged in an indictment to support the application of a sentencing enhancement. Under binding precedent, a prior conviction need not be alleged in an indictment to support the application of a sentencing enhancement. Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 118 S.Ct. 1219, 1230-31, 140 L.Ed.2d 350 (1998); United States v. Greer, 440 F.3d 1267, 1273 (11th Cir. 2006) (explaining that we are bound by Almendarez-Torres unless and until it is overruled by the Supreme Court).
United States v. Davies, 391 Fed.Appx. 822, 825 (11th Cir. 2010). Consequently, this claim in White's § 2255 motion lacks merit.
B. Predicate Prior Felony Charged in Indictment
White suggests his conviction under 18 U.S.C. § 922(g)(1) is infirm because, he says, the predicate prior felony conviction for second-degree theft alleged in the indictment did not constitute a felony. Doc. No. 1 at 1-4. In this regard, White says he spent only one day in incarceration on the 10-year sentence imposed in June 2004 by the Montgomery County, Alabama, Circuit Court for the theft conviction. Id. He maintains that because he was actually incarcerated for less than one year and a day on the theft conviction, the conviction could not be used as a predicate felony for purposes of the felon-in-possession statute. Id.
Second-degree theft of property under Alabama law is a Class C felony with a sentencing range of "not more than 10 years or less than 1 year and 1 day." Ala. Code 1975 §§ 13A-8-4(b), 13A-5-6(a)(3). White was sentenced to 10 years' imprisonment for that offense. See Presentence Investigation Report ("PSI") at p. 9, ¶ 37. The trial court then imposed a "reverse split" sentence, with seven years suspended to be followed by three years of incarceration and three years on probation. Id. Whether White (as he claims) actually served only one day of incarceration on his felony conviction for second-degree theft of property makes no difference. "The only limitation on predicate convictions contained in § 922(g)(1) itself is that they must be punishable by imprisonment for a term exceeding one year.'" United States v. Nix, 438 F.3d 1284, 1285 (11th Cir. 2006). See, also e.g., Latson v. O'Brien, 2013 WL 4400110, at *6 (N.D. W.Va. Aug. 15, 2013) (stating that the Supreme Court's holding in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), "mandate[s] that prior state convictions must be classified on the basis of the maximum sentence which the particular defendant in question could have received under the applicable state sentencing scheme at the time of conviction, " not on the basis of time actually spent incarcerated).
Because second-degree theft of property under Alabama law is a Class C felony punishable by imprisonment for a term exceeding one year, White's conviction for that offense could be used as the predicate ...