JAMES S. MOODY, Jr., District Judge.
THIS CAUSE comes before the Court upon Petitioner Smith's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Dkt. #1), Smith's Motion to Amend (Dkt. #7), the Government's Response (Dkt. #8), the Government's Amended Response (Dkt. #9), and Smith's Reply (Dkt. #10). The Court grants Smith's Motion to Amend (Dkt. #7), but no additional response is needed from the Government.
On February 8, 2012, this Court granted Smith twenty days to respond to the Government's claim that Smith's motion was time barred. On February 24, 2012, Smith filed his Response (Dkt. #12). Upon review of the pleadings, arguments of the parties, and controlling case law, the Court concludes that the motion is due to be dismissed because it is time barred and procedurally defaulted. If the motion were not due to be dismissed, it would be denied because Smith's claims are waived and without merit.
Smith pled guilty to one count of possession with intent to distribute fifty or more grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The United States had previously filed an "Information and Notice of Prior Convictions" placing Smith on notice of the Government's intent to seek an enhanced sentence pursuant to 21 U.S.C. § 851 based on Smith's six prior felony drug-related convictions, subjecting him to a mandatory term of life imprisonment.
Smith's guilty plea was pursuant to a written plea agreement in which the Government agreed to consider withdrawing the "Information and Notice of Prior Convictions" if Smith fully cooperated. Prior to sentencing, the Government filed an "Amended Information and Notice of Prior Conviction" based on only one of Smith's prior felony convictions — a conviction for delivery of cocaine within 1,000 feet of a school, in the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, Florida. This amendment reduced Smith's statutory term of imprisonment to twenty years to life.
In the written plea agreement, Smith waived his rights to file a direct appeal or to collaterally attack his sentence:
Crim. Dkt. #24, pp. 12-13, (emphasis in original).
At sentencing on September 16, 2008, this Court determined that Smith was a career offender pursuant to United States Sentencing Guideline § 4B1.1 based on his prior convictions for:
Any two of the prior convictions qualified Smith as a career offender under USSG § 4B1.1. Smith did not challenge the constitutionality or factual validity of these prior convictions, nor did he object to the Court's finding that he was a career offender.
This Court determined that Smith's guideline was 262 to 327 months in prison and sentenced him to the low end of 262 months. Smith did not file a direct appeal.
Smith filed the instant motion for writ of habeas corpus on May 9, 2011, contending he is "actually innocent" of being a career offender because his career offender status was based on several "non-qualifying" and "non-existent" offenses.
Smith's judgment was entered on September 16, 2008. It became final ten days later, on September 26, 2008, when Smith failed to file a direct appeal. Adams v. United States, 173 F.3d 1339 (11th Cir. 1999). He therefore had until September 26, 2009, to file his § 2255 motion for writ of habeas corpus. He actually filed the instant motion on May 9, 2011, over one and a half years late.
Smith argues that his motion is timely because he filed it within one year of Johnson v. United States, 130 S.Ct. 1265 (2010) which he claims recognized for the first time the right upon which his motion is based. He asserts that Johnson was decided on March 2, 2010, and his motion is timely because he "declare(s) under the penalty of perjury pursuant to 28 U.S.C. § 1746, and the `mailbox rule' . . . that he placed this § 2255 motion in the hands of prison staff on March 1, 2011, to be mailed to this Court and the Respondent." Smith's Memorandum (Dkt. #2), p. 2. The Court seriously doubts that Smith placed his motion in the hands of prison officials on March 1, 2011, because it did not reach this Court for filing until over two months later, on May 9, 2011. Nevertheless, this Court will assume, without deciding, that Smith placed his motion in the hands of prison officials on March 1, 2011.
In Johnson, the Supreme Court held that a Florida felony conviction for battery does not constitute a "violent felony" under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(I) ("ACCA"). The Supreme Court interpreted the term "physical force" in ACCA to mean "violent force." Since Florida's battery statute included "any intentional physical contact," the Supreme Court held that the Florida battery statute could not qualify as a violent felony under the ACCA. But Smith's reliance on Johnson is misplaced. For Johnson to start a new one year limitation period within which Smith could timely file a § 2255 motion, it must be made retroactively applicable on collateral review. And neither the Supreme Court nor the Eleventh Circuit has made Johnson retroactively applicable on collateral review.
But Smith claims that Johnson has been made retroactively applicable, citing Lamar v. United States, 2010 U.S. Dist. LEXIS 91908 (2010). Once again, Smith's reliance is misplaced. First, Lamar does not hold that Johnson is retroactively applicable. To the contrary, it assumed, without deciding, that Johnson was retroactively applicable and then denied Lamar's motion on the merits. Second, Lamar, which relied in part on Gilbert, was decided before the Eleventh Circuit vacated that decision. See, Gilbert v. United States, 609 F.3d 1159 (11th Cir. 2010). On rehearing en banc, the Eleventh Circuit vacated the panel opinion in Gilbert and held that a defendant was not permitted to bring a federal habeas petition to raise a sentencing claim that should have been raised on direct appeal. Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011).
Thus, Smith points to no support for his assertion that Johnson started a new one year period within which he could timely file a § 2255 motion. Since Smith filed his motion after his one year limitation period expired on September 26, 2009, it is time barred and must be dismissed.
As a general rule, a sentencing error claim like Smith's must be raised on direct appeal or else it is barred in a § 2255 proceeding. Lynn v. U.S., 365 F.3d 1225 (11th Cir. 2004). This "procedural default" may be excused to permit a subsequent habeas motion only if a defendant can first demonstrate either "cause" and "actual prejudice," or a miscarriage of justice, i.e., that he is "actually innocent." Bousley v. U.S., 523 U.S. 614, 622 (1998). Smith procedurally defaulted his career offender argument when he did not file a direct appeal. He does not claim that he had cause and actual prejudice to excuse his default, which leaves him with having to show that he fits into the second prong: "miscarriage of justice, or actual innocence."
In a case directly on point, the Eleventh Circuit recently held that a claim that one was "innocent" of being a career offender because a predicate offense had been held to no longer serve as a qualifying predicate failed to meet the actual innocence exception, because "innocence" must be factual, not legal, innocence. McKay v. United States, 657 F.3d 1190 (11th Cir. 2011). In McKay, the Eleventh Circuit said:
Id. at 1199, (emphasis in original).
Since Smith's claim is procedurally defaulted, it would be dismissed even it were not time barred.
The right to collaterally challenge a sentence is statutory and can be waived if done so knowingly and voluntarily. Williams v. United States, 396 F.3d 1340 (11th Cir. 2005). Smith's sentence did not exceed the statutory maximum or the applicable guideline range as determined by the Court, and Smith has not demonstrated any violation of the Eighth Amendment. Therefore, the claims raised in his motion are waived as long as the United States can demonstrate from the record that his waiver was knowing and voluntary. To do so, the United States points to the following colloquy which occurred during his guilty plea hearing:
Crim. Dkt. #42, pp. 16-18.
It is clear from the record that Smith's waiver was knowing and voluntary and the claims he now seeks to raise in this motion are waived. Therefore, even if the claims were not barred on the basis of timeliness and procedural default, they would fail because they are waived.
Assuming Smith's claims were not time barred, procedurally defaulted, and waived, they would still fail on the merits.
Smith argues that, on the basis of United States v. Shannon, 631 F.3d 1187 (11th Cir. 2011), he should not have been classified as a career offender at sentencing. In Shannon, the Eleventh Circuit held that because Florida's cocaine trafficking statute § 893.135(1) could involve solely the "purchase" of cocaine, a conviction under that statute should not count as a controlled substance offense for purposes of classification as an armed career criminal because "purchase" was not included in USSG § 4B1.2(b). And, as additional support, Smith cites to a recent decision of a sister court, a decision he claims this Court has previously approved, Shelton v. Department of Corrections, 2011 WL 3236040 (M.D. Fla. July 27, 2011).
Shannon offers no support for Smith's claims. Shannon was based on whether a mere purchase, without an accompanying intent to sell, could qualify as a predicate offense under ACCA. All of Smith's predicate offenses involved an accompanying intent to sell or deliver.
Likewise, Shelton offers no support for Smith's position. While this Court noted that Shelton dealt with the unique situation of a jury instruction that did not require the State to prove anything other than the defendant's delivery of an illegal substance, it disapproved of the overall holding. Indeed, this Court held, contrary to Shelton, that Florida's Drug Abuse and Control Law is not facially unconstitutional. United States v. Bunton, 2011 WL 5080307 (M.D. Fla. October 26, 2011).
Therefore, Smith's claims would have been denied even on the merits.
It is therefore ORDERED AND ADJUDGED that:
1. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (CV Dkt. #1) is DISMISSED as time barred and procedurally defaulted.
2. Even if Petitioner's motion were not time barred and procedurally defaulted, it would have been denied because he waived the claims in his plea agreement.
3. And, had Petitioner's motion not been time barred, procedurally defaulted, and waived, it would have been denied on the merits.
4. The Clerk is directed to terminate any pending motions and close this case.
5. The Clerk is directed to terminate from pending status the motion to vacate in the underlying criminal case, case number 8:08-cr-78-T-30EAJ (Dkt. #35).
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
