United States District Court, N.D. Alabama, Northeastern Division
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Holden, Jr., a federal prisoner, seeks to have his sentence
vacated, set aside, or corrected pursuant to 28 U.S.C. §
2255 in light of the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Doc. 1. For the reasons explained below, Holden's
petition is DENIED.
STANDARD OF REVIEW
conviction and sentencing, 28 U.S.C. § 2255 allows a
federal prisoner to file a motion in the sentencing court
“to vacate, set aside or correct the sentence” on
the basis “that the sentence was imposed in violation
of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such a sentence, or
that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack[.]”
28 U.S.C. § 2255(a). To obtain relief under § 2255,
a petitioner must: (1) file a non-successive petition or
obtain an order from the Eleventh Circuit authorizing a
district court to consider a successive § 2255 motion,
28 U.S.C. § 2255(h), § 2255 Rule 9; (2) file the
motion in the court where the conviction or sentence was
received, see Partee v. Attorney Gen. of Ga., 451 F.
App'x 856 (11th Cir. 2012); (3) file the petition within
the one-year statute of limitations, 28 U.S.C. §
2255(f); (4) be “in custody” at the time of
filing the petition, Spencer v. Kemna, 523 U.S. 1, 7
(1998); (5) state a viable claim for relief under the
heightened pleading standards of § 2255 Rule 2(b),
see also McFarland v. Scott, 512 U.S. 849, 856
(1994); and (6) swear or verify the petition pursuant to 28
U.S.C. § 1746. Finally, “[i]n deciding whether to
grant an evidentiary hearing, a federal court must consider
whether such a hearing could enable an applicant to prove the
petition's factual allegations, which, if true, would
entitle the applicant to federal habeas relief.”
Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
However, “if the record refutes the applicant's
factual allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary
Holden pleaded guilty to two counts of possession of a
firearm by a convicted felon in violation of 18 U.S.C. §
922(g)(1) (Counts I and II), see SEALED doc. 17 in
case no. 5:14-cr-00231-AKK-SGC, the undersigned sentenced
Holden to concurrent prison terms of one hundred twenty
months as to each count. See doc. 36 in case no.
5:14-cr-00231-AKK-SGC. Holden did not file a direct appeal.
Doc. 1 at 1. As a result, his conviction became final on
April 13, 2015.Holden subsequently filed this § 2255
motion on June 21, 2016. Id. at 19.
contends that his sentences are unconstitutional because his
“listed prior convictions no longer qualify as
convictions for ‘crimes of violence' in light of
Johnson, ” and, therefore, he “does not
have the requisite number of qualifying predicates for an
armed career criminal enhancement.” Doc. 1 at 19;
see also Id. at 14, 16. Holden's motion fails
for several reasons.
initial matter, Holden's motion is untimely. See
28 U.S.C. § 2255(f)(1). Specifically, the conviction
became final on April 13, 2015, and Holden did not file this
motion until June 21, 2016, over a year later. The court is
not persuaded by Holden's contention that his motion is
timely due to a “new rule of constitutional law made
available pursuant to Johnson v. United States . . .
and Welch v. United States.” Doc. 1 at 11.
While Holden is correct that, where a movant seeks to benefit
from a new Supreme Court decision, the movant has one year
from the date of that decision to file his motion, see
Dodd v. United States, 545 U.S. 353, 360 (2005),
Holden's motion does not assert a cognizable
declared void for vagueness the residual clause of the Armed
Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”), that defined “violent
felony” to include offenses that “involve
conduct that presents a serious potential risk of physical
injury to another” comparable to “burglary,
arson, or extortion” or an offense that “involves
the use of explosives.” See 135 S.Ct. at
2557-60. According to Holden, the invalidation of this
residual clause means that “he no longer has the
required three prior convictions to sustain an application of
the harsh provisions of [the ACCA] which served to increase
his otherwise statutory maximum for a general 18 U.S.C.
§ 922(g)(1) offense.” Doc. 1 at 13. This
contention is unavailing, because, as an initial matter, the
court did not “increase” the statutory maximum.
See docs. 24 & 25 in case no.
5:14-cr-00231-AKK-SGC (imposing the statutory maximum
sentence of one hundred twenty months). Moreover, the court
did not enhance Holden's sentence under the ACCA, which
“enhances [a] federal felon-in-possession sentence when
the defendant has at least three prior convictions for either
a violent felony or a serious drug offense.”
Bido v. United States, 438 F. App'x 746, 748
(11th Cir. 2011) (citing § 924(e)(1)) (emphasis added).
In Holden's case, he had “three prior felony
convictions - one for Distribution of Cocaine and two for
Possession of Cocaine.” SEALED doc. 17 in case no.
5:14-cr-00231-AKK-SGC. Therefore, for the ACCA to apply, all
three convictions had to constitute a “serious drug
offense, ” i.e. “an offense under State law,
involving manufacturing, distributing, or
possessing with intent to manufacture or distribute,
a controlled substance (as defined in section 102 of the
Controlled Substances Act (21 U.S.C. 802)), 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)
(emphasis added). Because only one of Holden's prior
convictions fit this definition (i.e., the
distribution offense), the court did not sentence Holden as
an armed career criminal under § 924(e).
contentions regarding the enhancement based upon U.S.S.G.
§ 4B1.1, doc. 1 at 15,  also fail because the Eleventh
Circuit “has held that Johnson does not apply
to sentences that were based on USSG § 4B1.1.”
In re Clayton, 829 F.3d 1254, 1256 (11th Cir. 2016).
Alternatively, Holden's sentence based on his prior
convictions for controlled substance offenses is “not
even arguably affected by Johnson's holding
regarding the ACCA's residual-clause definition of a
violent felony.” In re Williams, 826
F.3d 1351, 1356 (11th Cir. 2016) (emphasis added).
Holden's petition fails because Holden has procedurally
defaulted on his claims for relief by not raising these
argument in a direct appeal. See Lynn v. United
States, 365 F.3d 1225, 1234 (11th Cir. 2004) (defendant
defaults in a collateral proceeding when he could have raised
an issue on direct appeal but failed to do so); McCoy v.
United States, 266 F.3d 1245, 1258-59 (11th Cir. 2001)
(failure to raise claim makes the claim procedurally
defaulted, even if it was explicitly foreclosed by existing
circuit precedent at the time of defendant's direct
CONCLUSION AND ORDER
light of the foregoing, the court finds that Holden's
arguments are either procedurally barred or fail to establish
a sufficient basis to vacate his sentence under 28 U.S.C.
§ 2255. Accordingly, his § 2255 petition is
DENIED. The clerk is directed to close this