G. R. SMITH, Magistrate Judge.
Having pled guilty to being a felon in possession of a gun in violation of 18 U.S.C. § 922(g), CR612-009, doc. 16 (plea agreement); doc. 15 at 1-2 (judgment imposing a 120-month sentence), and having waived his appeal and collateral appeal rights,
Omoniyi provides no rational thread of a claim, doc. 19, thus impliedly relying on his successive-writ application, attached here as Exhibit B (the Court retrieved it through PACER). Unsurprisingly, he ignores his waiver while invoking Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015), to argue that "[t]he predicate sentences that label me an Armed Career Offender should no longer be used to enhance my sentence," and "[m]y sentence is based strictly on a prior conviction that triggered the ACCA residual clause." Exh. B at 5. He concludes: "The ACCA's language is so vague that the residual clause violates due process." Id.
Omoniyi's § 2255 motion is time-barred. After the Court sentenced him to 120 months' imprisonment on March 18, 2013 (doc. 15), he never appealed. His conviction thus became final on March 27, 2013. Fed. R. App. P. 4(b)(1)(A) (criminal defendants must file a notice of appeal within 14 days of the entry of judgment). That means he had to file his § 2255 motion by no later than one year later, March 27, 2014. 28 U.S.C. § 2255(f). Even were the Court to give him credit for his Eleventh Circuit § 2255 filing, Exh. A. at 7 (signature-filed June 8, 2016), it's clear that he is more than two years beyond the one-year limit.
Additional grounds support denial of his § 2255 motion. The Armed Career Criminal Act ("ACCA") — the statute Johnson addressed — provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g) and (2) have "three prior convictions . . . for a violent felony or a serious drug offense, or both." It defines "violent felony" as, among other things, a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. at § 924(e)(2)(B). Johnson found that "residual" clause so vague that it violates due process. See Johnson, 135 S. Ct. at 2557.
Setting aside the fact that a defendant must establish (he has not) that he was sentenced under the ACCA's residual clause,
Demello v. United States, 969 F. App'x 969, 971-72 (11th Cir. 2015); Taylor v. United States, 2016 WL 742118 at * 3 (S.D. Ga. Feb. 24, 2016). Here there is no guilty-plea hearing transcript in the record, and no government response brief (again, this case is under initial Rule 4(b) review). Cases like this typically necessitate the generation of both the transcript and a government response to determine whether the movant effectively waived his rights to direct and collateral review.
Yet, ordering that up here — where Omoniyi advances no specific plea-invalidity facts (e.g., that he was coerced or tricked into the plea), much less any ineffective assistance of counsel claim — defeats the very bargain that the government secured: It gave him certain benefits in exchange for sparing the taxpayers that expense (government attorney time required to respond to his § 2255 motion, transcript expenses, etc.). To order a transcript and response, then, would gut that bargain.
"That is why the Eleventh Circuit's heightened pleading burden must be honored." Holland v. United States, 2014 WL 5241531 at * 2 (S.D. Ga. Oct. 14, 2014) (explaining that specific, waiver-invalidating facts must be pled, and emphasizing that mere, "I-want-a-do-over" allegations will not suffice). Where that burden is not met, the agreement itself (here the above excerpt, and defendant's affirmation of his understanding and acceptance, doc. 16 at 8), plus the absence of any waiver-invalidating allegations, stops the § 2255 train. Id.
It follows that Omoniyi cannot look to Johnson and § 2255(f)(3) to define when his one-year statute of limitations began to run. Instead, he's relegated to § 2255(f)(1) and, as noted above, his motion is untimely by a long shot.
Finally, the ACCA was simply not applied to Omoniyi's case. See Presentence Investigative Report at 12-14 (noting that he qualified for ACCA's enhanced penalty but spared himself that through his plea agreement, which itself tilted in his favor due to confusion over a state-court conviction record). His claim thus fails on these additional grounds.
Accordingly, Levert Marquis Omoniyi's § 2255 motion should be
The enclosed order has been entered. No further action will be taken in this matter.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Davina C. Burney-Smith/jfc, J Phone #: (404) 335-6183
Enclosure(s)
Before TJOFLAT, ROSENBAUM, and JILL PRYOR, Circuit Judges.
BY THE PANEL:
Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Levert Omoniyi has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. As an initial matter, however, we must determine whether Omoniyi's proposed § 2255 motion would be second or successive.
District court records indicate that Omoniyi has not filed a § 2255 motion. Because Omoniyi has not filed a previous § 2255 motion that was denied or dismissed with prejudice, he does not require our permission to file his proposed § 2255 motion, as it would not be second or successive. See Dunn v. Singletary, 168 F.3d 440, 441 (11 th Cir. 1999) (holding that, when a first habeas petition is dismissed without prejudice, a later petition is not second or successive for purposes of § 2244(b)). Accordingly, Omoniyi's application for leave to file a second or successive motion is DENIED as unnecessary.
JILL PRYOR, Circuit Judge, concurring:
I agree that Mr. Omoniyi does not need our permission to file a § 2255 motion. Because he did not file his application with the benefit of a lawyer's assistance, I write separately to explain his options in more detail. Section 2255 motions give prisoners a mechanism for addressing a sentence that is illegal. These motions must be filed in a district court rather than a court of appeals. The appropriate district court for Mr. Omoniyi case is the United States District Court for the Southern District of Georgia in Statesboro that sentenced him in 2013.
Last month, Mr. Omoniyi mailed an application for leave to file a second or successive § 2255 motion to this Court in Atlanta, but this type of application is only required in cases where a petitioner has already filed a § 2255 motion and the district court has disposed of it properly. As the majority order says, Mr. Omoniyi has never filed a motion to vacate in any federal court. This means Mr. Omoniyi was not required to file the application he filed with this Court. In denying his application today, we are not denying Mr. Omoniyi permission to file a § 2255 motion. Rather, we are saying he does not need our permission to file a § 2255 motion.
If Mr. Omoniyi chooses to file a § 2255 motion in the district court, he should be aware that he may have very little time left to do so. Mr. Omoniyi's application indicates that he wishes to file a § 2255 motion based on Johnson v. United States, 135 S.Ct. 2551 (2015). The deadline to file § 2255 motions based on the Johnson case technically was June 26, 2016. If Mr. Omoniyi still plans to file a § 2255 motion based on Johnson, he should ensure that he files the motion with the district court in Statesboro (at least by giving it to a prison official—the kind of official he gave his application to earlier in June—for filing) as soon as possible.
I have attached to this opinion a copy of the form that Mr. Omoniyi must use to file a § 2255 motion in the Southern District of Georgia in Statesboro. The form can also be found online at this address: http://www.uscourts.gov/forms/habeas-coipus-petitions/motion-vacateset aside-sentence-motion-under-28-usc-ss-2255.
This is the mailing address for the district court in Statesboro:
1. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief from the conviction or the sentence. This form is your motion for relief.
2. You must file the form in the United States district court that entered the judgment that you are challenging. If you jvant to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that entered that judgment.
3. Make sure the form is typed or neatly written.
4. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
5. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum.
6. If you cannot pay for the costs of this motion (such as costs for an attorney or transcripts), you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you.
7. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge or division (either in the same district or in a different district), you must file a separate motion.
8. When you have completed the form, send the original and ____ copies to the Clerk of the United States District Court at this address:
9.
10.
(1) This application must be legibly handwritten or typewritten and signed by the applicant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury.
(2) ATJ questions must be answered concisely in the proper space on the form.
(3) The Judicial Conference of the United States has adopted the 8k x 11 inch paper size for use throughout the federal judiciary and directed the elimination of the use of legal size paper. All pleadings must be on 8k x 11 inch paper, otherwise we cannot accept mem.
(4) All applicants seeking leave to file a second or successive petition are required to use this form, except in capital cases. In capital cases only, the use of this form is optional.
(5) Additional pages are not permitted except with respect to additional grounds for relief and facts which you rely upon to support those grounds. DO NOT SUBMIT SEPARATE PETITIONS, MOTIONS, BRIEFS, ARGUMENTS, ETC., EXCEPT IN CAPITAL CASES.
(6) la accordance with the "Antiterrorism and Effective Death Penalty Act of 1996," as codified at 28 U.S.C. § 2255, effective April 24, 1996, before leave to file a second or successive motion can be granted by the United States Court of Appeals,
(7) When this application is fully completed, the original and three copies must be mailed to:
Doc. 16 at 6 (emphasis added).
Moore, 2016 WL 4010433 at * 4. It justified its directive in a preceding passage:
Id. at * 3.
