P. BRADLEY MURRAY, Magistrate Judge.
Petitioner, Michael D. Morton, has filed a motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255 (Doc. 35; cf. Doc. 33). 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. GenLR 72(a)(2)(R). Following consideration of all relevant pleadings in this case, it is recommended that Morton's § 2255 motion be dismissed as time-barred pursuant to 28 U.S.C. § 2255(f)(1) & (3).
On January 22, 2015, Morton entered a counseled guilty plea to the sole count of the indictment, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
Morton initially filed a motion to vacate in this Court on January 13, 2017 (Doc. 33); however, on January 19, 2017, the Court ordered Morton to file an amended § 2255 motion because he failed to complete and sign his original petition (Doc. 34; compare id. with Doc. 33). The Court also informed Morton that his amended petition would be the operative pleading in this case (Doc. 34, at 2 ("Petitioner's new petition will supersede his original petition; therefore, Petitioner shall not rely on his original petition."); see also Doc. 36 (recognizing the Morton's amended § 2255 motion is the operative pleading)), and therefore the undersigned considers solely the contents of the amended petition filed February 15, 2017 (see Doc. 35, at 6). On the question of timing, the Court regards the amended petition as relating back to the date of the filing of the initial petition on January 13, 2017, see Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000) ("We conclude, therefore, that in the present case, justice required the district court to treat Mederos's second motion as an amendment that cured the initial § 2255 motion's technical deficiency, and related back to the date of filing of the original motion for statute of limitations purposes."). Therein, petitioner appears to be implicitly contending that his § 2255 motion is timely under 28 U.S.C. § 2255(f)(3) because he seeks to take advantage of the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (June 26, 2015) (finding the ACCA residual clause in § 924(e) to be unconstitutionally vague) and Welch v. United States, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) (finding Johnson to be retroactive to cases on collateral review), in requesting that "the residual clause [be omitted] and [that he be] sentence[ed] . . . according to the guidelines." (See Doc. 35, at 6.)
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, 121 S.Ct. 410, 148 L.Ed.2d 316 (2000).
28 U.S.C. § 2255(f).
In the typical case, a petitioner interposes no argument in favor of application of subsections (2), (3), and (4) of § 2255(f), such that the timeliness of a motion to vacate, set aside or correct a sentence becomes relatively easy to calculate under § 2255(f)(1) based upon the date on which a petitioner's judgment of conviction became final. In this case, Morton did not file a direct appeal and, therefore, his conviction became final fourteen (14) days after this Court entered its May 5, 2015 written judgment, that is, on May 19, 2015, the date on which the time for filing a notice of appeal with this Court expired. Compare Fed.R.App.P. 4(b)(1)(A)(i) with Adams v. United States, 173 F.3d 1339, 1342 n.2 (11th Cir. 1999) ("[W]here a defendant does not pursue a direct appeal, the conviction becomes final when the time expires for filing a direct appeal."). Thus, Morton's one-year limitations period for filing his § 2255 motion began running on May 19, 2015 and expired on May 19, 2016. And, of course, because Morton's motion to vacate comes approximately eight (8) months following the expiration of his one-year limitations period, he seeks to argue that his motion to vacate is timely under § 2255(f)(3) ("[T]he 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[.]"), based upon the Supreme Court's decision in Johnson, which was declared to be retroactive to cases on collateral review by Welch.
Morton's argument, however, necessarily misses the mark (and his petition remains untimely) because his motion to vacate was filed on January 13, 2017 (see Doc. 33), more than one year after the Supreme Court issued its decision in Johnson on June 26, 2015, 135 S.Ct. at 2551. Compare Johnson v. United States, 2016 WL 5452804, *2 (D. Md. Sept. 29, 2016) ("The Supreme Court issued its opinion in Johnson on June 26, 2015. Therefore, the deadline to file a Section 2255 motion for relief under Johnson was June 26, 2016. However, Petitioner's Motion was not filed in this Court until July 21, 2016, significantly after the one-year statute of limitations had run. Therefore, Petitioner's motion is untimely.") and Jones v. United States, 2016 WL 5109169, *2 (W.D. N.C. Sept. 19, 2016) ("Petitioner's § 2255 motion to vacate should be dismissed as untimely because it was not filed within one year from the date the
Based upon the foregoing, and because Morton's motion to vacate contains no argument that he is entitled to equitable tolling of the limitations period
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). Where, as here, a habeas petition is being denied in its entirety on procedural grounds without reaching the merits of an underlying constitutional claim, "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). Given the applicability of the one-year limitations period in this case, a reasonable jurist could not conclude that this Court is in error for summarily dismissing Morton's motion to vacate, nor could a reasonable jurist conclude that petitioner should be allowed to proceed further with respect to his claims. 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."). Accordingly, petitioner is not entitled to a certificate of appealability.
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 11-00165-WS-C, Doc. 14 (order from Eleventh Circuit denying petitioner a certificate of appealability in a case in which this exact procedure was outlined in the report and recommendation); 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).
The Magistrate Judge recommends that the government's motion to dismiss (Doc. 37) the instant motion to vacate (Doc. 35; see also Doc. 33) be
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party who objects to this recommendation or anything in it must, within fourteen (14) days of the date of service of this document, file specific written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(b); S.D. Ala. GenLR 72(c)(1) & (2). The parties should note that under Eleventh Circuit Rule 3-1, "[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice." 11th Cir. R. 3-1. In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the Magistrate Judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the Magistrate Judge is not specific.
Under the elements clause of the ACCA, "the term `violent felony' means any crime punishable by imprisonment for a term exceeding one year . . . that [] has as an element the use, attempted use, or threatened use of physical force against the person of another[.]" 18 U.S.C. § 924(e)(2)(B)(i).
