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Stutson v. United States

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

October 13, 2017

EFREM STUTSON, Petitioner,



         This is a pro se motion to vacate, set aside, or correct a sentence filed pursuant to 28 U.S.C. § 2255 by Petitioner Efrem Stutson (“Stutson”) on November 28, 2016. (Doc. 1.) Respondent, the United States, opposes this motion. (Doc. 5.) For the following reasons, the motion is due to be denied.

         I. Background

         In June 1994, Stutson was convicted by a jury under 21 U.S.C. § 846 for his part in a wide-ranging conspiracy to possess and distribute large quantities of drugs in the Northern District of Alabama and elsewhere. The Government filed an information, pursuant to 21 U.S.C. § 851, alleging Stutson had previously incurred three drug convictions-convictions he expressly admitted to at his sentencing. These included a 1988 conviction for cocaine possession in San Bernardino, California Superior Court, a 1989 conviction for the sale of a controlled substance in Pomona Judicial District Superior Court, and a 1992 conviction for possession of cocaine in the San Bernardino, California Superior Court. At the time Stutson was sentenced by this Court, all three convictions were for offenses classified as felonies under California law. After attributing Stutson with 16 kilograms of powder cocaine, this Court applied the prior drug convictions, in accordance with 21 U.S.C. § 841(b)(1)(A), and sentenced him to a mandatory term of Life imprisonment.

         Stutson filed an appeal that was unsuccessful. Since then, he has pursued a number of post-conviction actions, including two habeas motions filed under § 2255, both of which were denied. See 2:01-cv-8005-LSC-PWG and 2:07-cv-8001-LSC-PWG.

         In November 2014, California enacted Proposition 47, known as the “Safe Neighborhoods and Schools Act.” Cal. Penal Code § 1170.18 (codifying Proposition 47). Among other things, Proposition 47 reduces future convictions for certain low-level drug offenses (i.e., possession) from felony to misdemeanor. Proposition 47 also permits previously-convicted defendants to petition the court for a “recall of sentence, ” which, if granted, effectively reclassifies their qualifying felonies as misdemeanors.

         Pursuant to Proposition 47, Stutson petitioned a California state court for a reclassification of his two prior felony drug convictions for cocaine possession. Stutson's petitions were granted in March and September 2016, and, accordingly, the convictions were reduced to misdemeanors.

         Stutson now contends in the instant § 2255 motion that because two of his prior felony drug convictions are no longer countable under 21 U.S.C. § 841(a)(1)(A), his Life sentence is illegal, and he is due to be re-sentenced without application of the 21 U.S.C. § 851 enhancements.

         II. Discussion

         A. This Court Lacks Jurisdiction to Consider the Motion

         This is Stutson's third numerically-filed § 2255 motion. The United States acknowledges that ordinarily this would mean that this Court would lack jurisdiction to consider it because it is “second or successive” and Stutson has not sought or received permission from the Eleventh Circuit Court of Appeals to file it. See 28 U.S.C. § 2255(h) (“A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain- (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”); 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this Section is filed in the District Court, the applicant shall move in the appropriate Court of Appeals for an Order authorizing the District Court to consider the application.”); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (“Without authorization, the district court lacks jurisdiction to consider a second or successive petition.”).

         However, relying upon Stewart v. United States, 646 F.3d 856 (11th Cir. 2011), the United States's position is that Stutson's failure to seek the requisite permission is not fatal to his claim because the basis for his claim did not exist before the reclassification of his two prior California felonies through operation of Proposition 47 and well after his first and second § 2255 motions had been filed and dismissed.

         In Stewart, the Eleventh Circuit held that there are limited circumstances in which a numerically-second § 2255 motion may not be “second or successive” under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 646 F.3d at 857; see also Slack v. McDaniel, 529 U.S. 473, 486 (2000) (explaining that the phrase “second or successive, ” as used in AEDPA, is a term of art); Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007) (“The phrase ‘second or successive' is not self-defining. It takes its full meaning from our case law, including decisions predating the enactment of the [AEDPA.”). The Stewart prisoner, convicted of distributing more than 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) and 18 U.S.C. § 2, had filed his first § 2255 motion, and had then successfully challenged the state convictions that were predicate convictions for his career offender sentence. 646 F.3d at 857-58. One month after his state convictions were vacated, he filed a second-in-time § 2255 motion, and requested vacatur of the career offender enhancement pursuant to Johnson v. United States, 544 U.S. 295 (2005). Id. at 858. In Johnson, the Supreme Court addressed the fourth paragraph of 28 U.S.C. § 2255(f)(4), which states: “A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” The Johnson Court held that a state court vacatur is a matter of “fact” that refreshes the one-year AEDPA statute of limitations period, as long as the petitioner has shown due diligence in seeking the vacatur order. 544 U.S. at 302. The district court in Stewart had dismissed the prisoner's second-in-time § 2255 motion as successive, but the Eleventh Circuit reversed, explaining that the basis for the second-in-time § 2255 motion-vacatur of the predicate state convictions- did not exist at the time of the prisoner's first § 2255 motion, and thus the numerically second motion was not “second or successive” within the meaning of AEDPA. 646 F.3d at 863-65. The court also said that the prisoner had acted diligently in pursuing the vacatur and in bringing a subsequent § 2255 motion raising a claim, under Johnson, that the statute of limitations for bringing his claim had been refreshed. Id. at 863-64.

         In reaching the conclusion that the Stewart prisoner's motion was not “second or successive, ” the Eleventh Circuit discussed with approval the Fifth Circuit's decision in Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009), where that court held that a prisoner's second habeas petition, based upon a 2005 declaration by President George W. Bush to enforce an order of the International Court of Justice, was not “second or successive.” According to Leal Garcia, the prisoner's second motion to vacate was not “second or successive” because the defect complained of did not even come into existence ...

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