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Jones v. United States

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

February 1, 2018

JEREMY CORNELIUS JONES, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE.

         This cause is before the Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b) and S.D. Ala. Gen. L.R. 72(a)(2)(R), on Petitioner Jeremy Cornelius Jones' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in a Federal Custody (“2255 motion”), (Doc. 37), filed on May 18, 2016, and Respondent United States of America's (“USA”) Response To Order, (Doc. 39), filed on June 1, 2016. For the reasons stated below, this undersigned recommends Petitioner Jones' 2255 motion be DENIED.

         PROCEDURAL AND FACUTAL BACKGROUND

         On June 26, 2003, the Court imposed on Petitioner Jones' a sentence of 262 months of imprisonment, (Doc. 16), following his plea of guilty to possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1), (Doc. 10). The actual entry of the judgment was accomplished on July 15, 2003. (Doc. 16). Jones was sentenced as a career offender prior to United States v. Booker, 543 U.S. 220 (2005) when the Sentencing Guidelines were considered mandatory. It was determined that Jones was a career offender because his instant offense was a controlled substance offense and he had at least two qualifying prior convictions that supported the career offender enhancement. Jones did not appeal his conviction or sentence into the Eleventh Circuit Court of Appeals.

         With the concurrence of both parties, Judge Butler stayed this section 2255 matter pending a final decision in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886 (2017). (Doc. 46). Although this stay has not been technically lifted, on November 16, 2017, in light of the decision in Beckles v United States, 576 U.S. ___, 137 S.Ct. 886 (2017), this matter was referred to the undersigned for further proceedings and the parties were ordered to file a status report in regard to Petitioner Jones' 2255 Motion. (Doc. 48).

         On December 19, 2017, a joint status report was filed by counsel for Jones and the United States informing the Court that they did not believe that Jones is entitled to relief under the Due Process Clause as requested in his motion. (Doc. 50). The undersigned concurs in that assessment.

         DISCUSSION

         “In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress created a one-year statute of limitations for § 2255 motions, running from the latest of four dates.”[1] Murphy v. U.S., 634 F.3d 1303, 1306-07 (11th Cir. 2011) “Section 2255(f) does not define ‘judgment of conviction' or ‘final.' Nonetheless, [the Circuit Court of Appeals for the Eleventh Circuit (the “Eleventh Circuit”)] concluded that when a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking that review expires.” Id., 634 F.3d at 1307. At the time of Petitioner Jones' sentencing, a criminal defendant had ten (10) days from the entry of judgment in which to file a notice of appeal with the district court. Fed. R. App. P. 4(b)(1)(A)(i) advisory committee's notes (2009 amendment). Since Petitioner Jones did not file an appeal, (see Docket Report), his judgment of conviction became final ten days after the entry of judgment, on July 28, 2003, and the one-year statute of limitation period for his 2255 Motion expired on July 28, 2004. Thus, his motion of May 18, 2016 was filed over eleven years after the statute of limitation had expired. Petitioner argues, however, that the one-year period for filing his motion is tolled by application of 28 U.S.C. section 2255(f)(3) in that his motion was filed within one year of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (June 26, 2015)-“a ruling which established a newly recognized right that is retroactively applicable to cases on collateral review, ” citing to Welch v. United States, U.S., 136 S.Ct. 1257, 194 L.Ed. 387 (2016). (Doc. 37 at 3).

         On March 6, 2017, the Supreme Court handed down its decision in Beckles v. United States, in which it held “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, ” which “resolve[d] a conflict among the Courts of Appeals on the question whether Johnson[v. United States, --U.S. --, 135 S.Ct. 2551, 192 L.Ed.2d 569, (2015)]'s vagueness holding applies to the residual clause in § 4B1.2(a)[, United States Sentencing Commission, Guidelines Manual, ] of the Guidelines” including the decision in United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015). Beckles v. United States, 576 U.S. --, 137 S.Ct. 886, 890, 891-92, & 892 n. 2 (2017). Thus, the Beckles decision has made clear that Jones may not rely on Johnson to either toll the time for filing his motion pursuant to 28 U.S.C. section 2255 or to provide a basis for relief. His motion is untimely and without merit, and it is recommended that the motion be denied on for both reasons.

         CERTIFICATE OF APPEALABILITY

         In consideration of the foregoing, it is recommended that the Court deny Jones' motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Moreover, pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned recommends that a certificate of appealability in this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) (“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”). The habeas corpus statute makes clear that an applicant is entitled to appeal a district court's denial of his habeas corpus petition only where a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where “the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2243(c)(2). Here, Jones' habeas petition is being denied both on procedural grounds without reaching the merits of the constitutional claims, such that “a COA should issue [only] when the prisoner shows . . . that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling[, ]” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000), and also on the merits, such that a COA should issue only when the petitioner demonstrates “that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong[, ]” id.; see also Id. at 483-484, 120 S.Ct. at 1603-1604 (“To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.'”); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the controlling standard, a petitioner must ‘sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were “adequate to deserve encouragement to proceed further.”'”). Inasmuch as Petitioner has failed to file a timely motion, a reasonable jurist could not conclude either that this Court is in error in denying the instant petition or that Jones should be allowed to proceed further regarding this claim, Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 (“Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”). In addition, with respect to his claim that the sentence he received violates the Due Process Clause, it is recommended that the Court find that reasonable jurists could not debate whether Jones' § 2255 habeas petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. Accordingly, petitioner is not entitled to a certificate of appealability with respect to his claim.

         Rule 11(a) further provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation. Brightwell v. Patterson, CA 11-0165-WS-C, Doc. 14 (Eleventh Circuit order denying petitioner's motions for a COA and to appeal IFP in a case in which this Court set out the foregoing procedure); see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 3943699 (N.D.Fla. Oct. 5, 2010).

         CONCLUSION

         It is determined that Petitioner's rights were not violated in this cause and that his request to vacate, set aside or correct his sentence (Doc. 37) should be DENIED. Petitioner is not entitled to a certificate of ...


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