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Childs v. United States

United States District Court, N.D. Alabama, Eastern Division

October 11, 2017

CAREY LAMAR CHILDS, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge

         Petitioner Carey Lamar Childs (“Childs”) has filed with this Court a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1). The Government has responded in opposition to the motion. (Doc. 7.) Childs has replied in support of his motion. (Doc. 10.) For the following reasons, the motion is due to be denied.

         I. Background

         In 2010, Childs was convicted of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Because he had three Alabama prior convictions for violent felonies, he was sentenced to 188 months of imprisonment as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). Had he not been sentenced under the ACCA, his maximum sentence would have been 10 years. Childs did not appeal. This is Childs's first motion filed pursuant to 28 U.S.C. § 2255.

         II. Discussion

         A. Childs's claim that his prior convictions should have been considered as one offense is time barred and without merit in any event

         Childs was sentenced under the ACCA based on his three prior Alabama convictions for violent felonies: first-degree robbery, first-degree assault, and second-degree assault. In support of his request for relief, he argues that a “simple consideration [of] the record in his cases demonstrated that his prior convictions did not qualify as separate[] offense[s].” Relying upon U.S.S.G. § 4A1.2(a)(2), he says that the “3 offenses . . . should have been counted as one conviction.”

         This claim is time barred.[1] The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year statute of limitations for filing a § 2255 motion. 28 U.S.C. § 2255(f). The time begins to run following the latest of four possible events. Id. At a minimum, however, a convicted defendant has at least one year from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2255(f)(1). Childs's conviction became final on December 6, 2010, fourteen days after the judgment was entered against him. See Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011) (“[W]hen a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking that review expires.”). Thus, under § 2255(f)(1), Childs had until December 6, 2011, to file a motion for collateral relief. He filed his initial motion in June 2016, more than four years too late. Unless he can establish the existence of one of the other § 2255(f) triggering events, a claim that his three prior convictions should have been considered as one is time-barred.

         Childs cannot establish the existence of another § 2255(f) triggering event. In his motion, he cites § 2255(f)(3), which provides that the one-year limitation period runs from “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.” 28 U.S.C. § 2255(f)(3). In support of that contention, cites to the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson does constitute a right newly recognized and made retroactive to cases on collateral review by the Supreme Court. See Welch v. United States, 136 S.Ct. 1257, 1265 (2016). Thus, in appropriate circumstances, it does serve as a basis to extend the limitations period under § 2255(f)(3). Here, however, it does not do so. In Johnson, the Supreme Court held that the residual-clause portion of the ACCA's violent-felony definition is unconstitutionally vague. 135 S.Ct. at 2557. That holding has no relevance to § 4A1.2 of the Sentencing Guidelines-the provision Childs relies upon in making his claim. See also Beckles v. United States, 137 S.Ct. 886 (2017) (Johnson does not mean that the residual clause of the Sentencing Guidelines is also unconstitutionally vague). Thus, Johnson does not permit Childs to bring his unrelated claim under § 2255(f)(3).

         Even assuming there were no applicable procedural hurdles, the claim is without merit. The fifteen-year mandatory minimum sentence under the ACCA applies when the convicted defendant has three previous violent felony convictions “committed on occasions different from one another.” 18 U.S.C. § 922(e)(1). The presentence report demonstrates that each of Childs's three prior convictions meets this requirement. Each arose out of separate circumstances, each involved a different victim, and each occurred on a different occasion. See Doc. 13 at 11-13 in United States v. Childs, 1:10-cr-226-LSC-TMP.

         B. Childs's claim that Johnson invalidated his prior Alabama robbery conviction is without merit

         Childs additionally argues that his prior robbery conviction qualified as a violent felony only under the residual clause and, thus, post-Johnson can no longer serve as a basis to impose a sentence under the ACCA. This claim is without merit.

         Alabama robbery is a violent felony post-Johnson because it “has an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 922(e)(2)(B)(i). Under Alabama law, first and second degree robbery are enhanced versions of third-degree robbery. Third-degree robbery requires (1) commission of a theft (2) during which the perpetrator (a) “uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance” or (b) “threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.” Ala. Code § 13A-8-43(a). An individual commits first-degree robbery when he or she commits third-degree robbery and “(1) Is armed with a deadly weapon or dangerous instrument; or (2) Causes serious physical injury to another.” Ala. Code § 13A-8-41. Because third-degree robbery qualifies, categorically, as a violent felony under the “elements clause, ” first-degree robbery necessarily does as well.

         The Alabama robbery statute is substantially similar to the Florida robbery statute, and the Eleventh Circuit has found that a conviction under Florida's statute constitutes a “crime of violence” under the Sentencing Guidelines. See United States v. Lockley, 632 F.3d 1238, 1242-44 (11th Cir. 2011). Florida robbery is a theft “in the course of [which] there is the use of force, violence, assault, or putting in fear.” Fla. Stat. § 812.13(1). State jury instructions clarify that force or threat must “overcome” or prevent the victim's resistance. Fla. Std. Jury Instr. (Crim.) 15.1. In Lockley, the court held that the Florida statute fell under the similar elements clause of U.S.S.G. § 4B1.2. 632 F.3d at 1245. And, it has since reaffirmed that holding. See United States v. Fritts, 841 F.3d 937, 942-43 (11th Cir. 2016). In ...


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