United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE.
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).
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
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. 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).
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
(1) the date on which the judgment of conviction becomes
(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
(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).
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 ...