ORDER

JAMES S. MOODY, Jr., District Judge.

Petitioner was sentenced as a career offender and armed career criminal based on his prior convictions. Petitioner now argues his armed career criminal designation is unconstitutional because two of the convictions relied on the now-invalidated residual clause of the definition of "violent felony" under the Armed Career Criminal Act (the "ACCA"). And Petitioner argues the remaining felonies are not "serious drug offenses" that occurred on separate occasions, so he cannot be sentenced as an armed career criminal. The Government argues this claim was procedurally defaulted. Because Petitioner has not shown that his armed career criminal designation relied on the residual clause, and because Petitioner has not shown cause why he could not have challenged the serious drug offenses at sentencing or on direct appeal, the Court concludes Petitioner's Motion must be denied.1

BACKGROUND

Petitioner was indicted in March 2006 for conspiracy to distribute and possession with intent to distribute cocaine and MDMA (count one), for aiding and abetting Jose Perez in knowingly and intentionally possessing with intent to distribute MDMA (count two), and for being a convicted felon in possession of ammunition (count three). (CR Doc. 17). Petitioner pled guilty to counts one and three, and count two was dismissed. (CR Docs. 50 and 60). On December 14, 2006, the Court entered judgment against Petitioner and sentenced him to 200 months' imprisonment on counts one and three, with the sentences to run concurrently. (CR Doc. 79). The Court also sentenced Petitioner to eight years' and five years' supervised release on counts one and three respectively. (CR Doc. 79).

The Court's sentence was imposed after consideration of the PSR, which recommended Petitioner be sentenced as an armed career criminal, under 18 U.S.C. section 924(e), and as a career offender, under USSG section 4B1.1. Because Petitioner's prior convictions are relevant to these enhancements, the Court will set them out here in full:

(CR Doc. 96). The PSR provides that the convictions in cases 94-CF-009859, 96-CF-007437, and 96-CF-015940 (the "PSR Cases") were relied on as the qualifying prior convictions to enhance Petitioner's sentence. (CR Doc. 96, ¶ 48). Petitioner did not object to the PSR (CR Doc. 92, 4:13-19), and did not appeal.

Within a year of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Petitioner filed this Motion. In it, Petitioner argues his armed career criminal sentence is unconstitutional because his "convictions for burglary of a structure and carrying a concealed firearm no longer qualify as `violent felonies.'" (CV Doc. 12, p. 3). And, Petitioner argues, he does not have three other qualifying offenses that occurred on separate occasions. Petitioner does not challenge his career offender designation.

DISCUSSION

The Court concludes Petitioner's Motion must be denied because his claim was procedurally defaulted. "Under the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding." Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). "A defendant can avoid a procedural bar only by establishing one of the two exceptions to the procedural default rule. Under the first exception, a defendant must show cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error. Under the second exception, a court may allow a defendant to proceed with a § 2255 motion despite his failure to show cause for procedural default if "`a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (citations omitted). Petitioner argues his claim is not defaulted because the first exception applies.

As to the cause prong, Petitioner argues that his claim in the Motion—that his burglary and carrying a concealed firearm convictions do not qualify as "violent felonies" —was not reasonably available to him at sentencing or within time to file a direct appeal because the Johnson decision had not yet been issued. But this claim rests on an unproved premise: namely, that the burglary and carrying a concealed firearm convictions were considered as predicate convictions for his armed career criminal designation. The Court finds no support for such a conclusion in the record.

In determining that Petitioner qualified for an enhanced sentence, the PSR detailed the convictions it considered. The pertinent portion of the PSR provides:

(CR Doc. 96, ¶ 48) (underline added for emphasis). Petitioner's convictions for burglary and carrying a concealed firearm were not in any of the cases listed in this paragraph.3

There are two conclusions that can be drawn from this information. The first is that the PSR Cases in the underlined sentence above formed the sole basis for Petitioner's enhanced sentence, which means the burglary and carrying a concealed firearm conviction were not considered.4 The second conclusion is that the PSR Cases above related only to the career offender enhancement, and that the PSR was silent as to what convictions formed the basis of the armed career criminal enhancement. Either conclusion requires the Court to reach the same result.

If the PSR Cases were the sole bases for Petitioner's enhanced sentence, then the Johnson decision is inapplicable. The Johnson decision invalidated the residual clause of the definition of "violent felony" in the ACCA in section 924(e)(1)(2)(B). Johnson, 135 S.Ct. 2551, 2563. The PSR Cases, though, contain "serious drug offenses" defined in section 924(e)(1)(2)(A). As such, Johnson had no bearing on the convictions that formed the basis of Petitioner's enhanced sentence, and Petitioner's claim is without merit. This would also mean that there was no cause why Petitioner could not have objected to the armed career criminal enhancement at the time of sentencing.

Similarly, Petitioner would not be able to show cause if the PSR was silent as to what convictions formed the basis of the armed career criminal enhancement for two reasons. First, Petitioner did not object at the time of sentencing or appeal the fact that the PSR failed to state the basis for the armed career criminal enhancement. And second, Petitioner cannot show that the armed career criminal designation was not based solely on the serious drug offenses in the PSR Cases. Put another way, Petitioner has not shown his armed career criminal designation actually relied on the burglary and carrying a concealed firearm convictions. Because Petitioner cannot show that his armed career criminal designation was based on convictions relying on the now-invalid residual clause, Petitioner cannot show that his sentence is unconstitutional under Johnson, and, therefore, is not entitled to bring this claim.

This dovetails back to the heart of Petitioner's Motion, which relies on Johnson to open the door so Petitioner can attack his prior drug convictions under Mathis v. United States, 136 S.Ct. 2243, 195 L. Ed. 2d 604 (2016).5 A claim based solely on Mathis, though, does not allow Petitioner to file an untimely section 2255 motion. United States v. Taylor, No. 16-6223, 2016 WL 7093905, at *4 (10th Cir. Dec. 6, 2016); Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016); In re Lott, 838 F.3d 522, 523 (5th Cir. 2016). The Court concludes Petitioner has not shown cause to attack his sentence under Mathis because he failed to first establish that his sentence is now unconstitutional under Johnson.

The Court also notes that removing the armed career criminal designation would have no effect on Petitioner's sentence. As explained in the PSR, Petitioner's offense level of 37 was not based on the armed career criminal designation, but was instead based upon his status as a career offender. (CR. Doc 96, ¶ 48). Petitioner has not challenged the career offender designation, so his offense level would remain the same regardless of whether he was designated an armed career criminal on count three. As such, the Court concludes that Petitioner's overall sentence would be legal even if his claim were not defaulted.

CONCLUSION

Petitioner claims he lacks three "serious drug offenses" that occurred on separate occasions, so his armed career criminal designation is unconstitutional. Petitioner could have raised this argument at sentencing or on direct appeal, but failed to do so. Petitioner cannot now bring this argument without first establishing that his armed career criminal designation resulted from reliance on the now invalidated residual clause of the "violent felony" definition, a burden which Petitioner has not met. As such, the Court concludes Petitioner's argument was procedurally defaulted, and his Motion should be denied.

Accordingly, it is ORDERED AND ADJUDGED that:

DONE and ORDERED.