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Harris v. United States

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

April 20, 2018

NANCE RAY HARRIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil Action No. 16-0020-WS-MU

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.

         This cause is before the Court on Petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 49), the Government's motion to dismiss (Doc. 53), the Government's renewed motion to dismiss (Doc. 61), and Petitioner's replies thereto (Docs. 55, 63). This action has been referred to the undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. LR 72(a)(2)(R). Following consideration of all relevant filings, it is recommended that the motion to dismiss filed by the United States be GRANTED and that Harris's § 2255 motion be DISMISSED as time-barred pursuant to 28 U.S.C. § 2255(f).

         BACKGROUND

         On April 12, 2007, Harris pled guilty to Counts Two and Four of an indictment charging the offense of possession of a stolen firearm and felon in possession of a firearm in violation of Title 18, United States Code Sections 922(j) and 922(g)(1), respectively. (Doc. 32). On July 19, 2007, Harris was sentenced to a term of 210 months in prison, and a judgment of conviction was entered on August 6, 2007. (Doc. 45). Harris did not file a direct appeal. On January 11, 2016, Harris filed a motion pursuant to 28 U.S.C. § 2255 requesting that he be resentenced without application of the career offender provision. (Doc. 49 at p. 12). On May 17, 2016, the Government filed a motion to dismiss Harris's § 2255 motion on the grounds that it was time-barred and barred by his plea agreement's collateral attack waiver. (Doc. 53). On May 18, 2016, the Court ordered Harris to show cause why his motion should not be dismissed as time-barred. (Doc. 54). Harris filed his response to that order on June 10, 2016. (Doc. 55). Shortly thereafter, this action was stayed pending decisions in similar cases before the Eleventh Circuit and the United States Supreme Court. (Doc. 57). After these decisions were rendered, the Government filed a renewed motion to dismiss Harris's § 2255 motion on the ground that it is time-barred. (Doc. 61). Harris filed a response in opposition to the Government's renewed motion on June 13, 2017. (Doc. 63). This matter is now ripe for determination.

         CONCLUSIONS OF LAW

         In his motion to vacate, filed January 11, 2016, Harris contends that, in light of the holding in Johnson v. United States, 135 S.Ct. 2551 (2015), he is entitled to resentencing because his prior Alabama burglary third convictions, which gave rise to his career offender sentence under U.S.S.G. § 4B1.2, have been invalidated by the holding in Johnson. In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), set forth in 18 U.S.C § 924(e), was unconstitutional. 135 S.Ct. at 2557-58.[1] Harris argues in support of his motion that the Johnson holding should be extended to invalidate the residual clause in the Sentencing Guidelines. (Doc. 55). Because Harris filed his motion to vacate more than eight years after his judgment of conviction became final, the Government moved to dismiss his § 2255 motion on the ground that it is time-barred. (Doc. 53).

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted on April 24, 1996 and, pertinent to this case, added a new subdivision to 28 U.S.C. § 2255 providing for a one-year period of limitations within which federal prisoners must file their motions to vacate pursuant to 28 U.S.C. § 2255. Akins v. United States, 204 F.3d 1086, 1089 (11th Cir.), cert. denied, 531 U.S. 971 (2000). Section 2255(f) provides:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of--
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). In this case, Harris did not file a direct appeal (see Docket Sheet) and, therefore, his conviction and sentence became final ten (10) days after this Court entered the judgment on August 6, 2007, that is, on August 16, 2007, the date on which the time for filing a notice of appeal expired. Akins, 204 F.3d at 1089, n.1 (noting that when a defendant does not pursue a direct appeal, the conviction becomes final when the time expires for filing a direct appeal). Thus, Harris's one-year limitations period for filing his § 2255 motion began running on August 16, 2007 and expired on August 16, 2008. Because he did not file his motion to vacate his sentence until January 11, 2016, more than seven years after the expiration of the limitations period, his motion is clearly time-barred under § 2255(f)(1).

         While Harris acknowledges that his § 2255 motion was filed more than one year after his conviction became final, he argues that it was timely filed pursuant to § 2255(f)(3) because he filed it within one year of the Supreme Court's decisions in Johnson and Welch. Harris's argument is without merit. In Beckles v. United States,137 S.Ct. 886 (2017), the United States Supreme Court rejected Harris's argument that Johnson, which applied to the residual clause in the Armed Career Criminal Act, effectively invalidated the residual clause set forth in § 4B1.2 of the advisory Guidelines, holding that “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause.” 137 S.Ct. at 890. In addition, prior to the Supreme Court's decision in Beckles, the Eleventh Circuit held that Johnson does not invalidate the residual clause in the sentencing guidelines, U.S.S.G. § 4B1.2(a)(2), United States v. Matchett,802 F.3d 1185, 1193-96 (2015), reh'g denied, 837 F.3d 1118 (11th Cir. 2016) (en banc), cert. denied,137 S.Ct. 1344 (2017), and subsequently held that “nothing in Johnson precludes the application of the offense level increases or enhancements in the advisory sentencing guidelines.” United States v. Kirk,636 Fed.Appx. 548, 550 (11th Cir. 2016) (emphasis added). Therefore, pursuant to Beckles, Matchett, and Kirk, the Johnson ...


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