VIRGINIA EMERSON HOPKINS, District Judge.
Petitioner, Robert James Coats, Jr., has filed a motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. 2255. (Doc. 1). The Government has responded (doc. 3) and Petitioner has replied (docs. 5 & 6). Therefore, the matter is fully developed. An evidentiary hearing is not needed. Having fully considered all relevant pleadings in this case, and in the related criminal case (United States v. Robert James Coats, Jr., 7:11-cr-68-VEH-HGD), the undersigned finds that Petitioner's 2255 motion is due to be dismissed as time-barred pursuant to 28 U.S.C. 2255(f)(1).
On January 28, 2011, a grand jury sitting in the Northern District of Alabama returned a four-count indictment against Robert James Coats, Jr. and Vincent Gene Lawrence, Jr., charging the defendants with Conspiracy to Distribute Cocaine Base and Distribution of Cocaine Base, in violation of Title 21, United States Code, Sections 846, 841(a)(1), and (b)(1)(B), respectively. (Doc. 1).
Coats, along with his retained counsel, Brett L. Wadsworth, appeared at arraignment on March 11, 2011, and entered pleas of not guilty. (Court Entry 3/11/2011).
On April 6, 2011, pursuant to 28 U.S.C. §851, the Government filed a Notice of Prior Felony Drug Conviction to enhance the penalties applicable to the pending charges against Coats. (Doc. 18).
On April 20, 2011, Coats entered guilty pleas to Counts One and Four of the indictment, and the matter was continued for sentencing. (Court Entry 4/20/2011). Coats filed with the court a signed Guilty Plea Advice of Rights Certification (doc. 24) and a signed Plea Agreement (doc. 25). In the Plea Agreement, the maximum punishment is set out as follows.
(Doc. 25 at 2)(emphasis in original).
At the April 20, 2011, plea hearing, the court specifically noted that a § 851 Notice of Prior Felony Drug Conviction had been filed by the Government. (Doc. 48, Transcript of plea hearing, at p. 2, lines 9-12). Accordingly, at such hearing, the court advised Coats of the enhanced penalties applicable to him.
(Doc. 48 at p. 10, lines 3-24).
The Presentence Report ("PSR") was disclosed on June 29, 2011. Coats's offense level was enhanced, under U.S.S.G. § 4B1.1, based on his prior criminal history, as a career offender. Specifically, the PSR reported that Coats had previously been convicted of Shooting into an Occupied Dwelling (crime of violence) and Unlawful Distribution of a Controlled Substance
Neither the Government nor Coats filed an objection to the PSR, nor was any objection raised orally at the sentencing hearing. On July 18, 2012, the undersigned sentenced Coats to a custodial term of 168 months.
Following the imposition of sentence, Coats did not pursue a direct appeal.
On November 6, 2013, Coats filed the habeas motion now pending before the court. Coats remains in custody at this time. (Doc. 47.)
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, the undersigned entered its Judgment of Conviction on July 18, 2012. (Doc. 46, case no.7:11:cr-68-VEH-HGD). Coats did not appeal, and therefore his conviction became final on July 28, 2012. FED. R. APP. P. 4(b). See Akins v. United States, 204 F.3d 1086. Thus, unless the pending petition raises an issue that is not subject to this one-year limitation period, the petition is time-barred.
In his Petition, Coats asserts five "grounds" for granting his petition. The first ground is that "the facts on the face of the information were too vague to satisfy the Sixth Amendment Guarantee to be informed of a Specific Transaction Claimed to be Fraudulent to allow a Defense or a Future claim of Double Jeopardy." (Doc. 1, p. 3, also pp. 3-5). The second ground is that "Plea Agreements are Subject to Jurisdictional and Constitutional Errors and Procedures which result in a Miscarriage of Justice." (Id., p. 5, also pp. 5-9). The third ground is "Violation of the Sixth Amendment Rights to Effective Assistance of Counsel." (Id., p. 9, also pp. 9-12). The fourth ground is "Counsel Ineffective Due to Conflict of Interest in Violation of the Sixth Amendment." (Id., p. 12, also pp. 12-13). The fifth ground is "Sixth Amendment and Due Process Violation." (Id., p. 13, also pp. 13-23). Only the fifth ground is asserted as not being time-barred. Therefore, the court will only address the fifth ground.
Coats contends that his 2255 motion is timely under 28 U.S.C. 2255(f)(3) because it was filed within one year of the date the Supreme Court decided Alleyne v. United States, ___ U.S. ____, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) and this court should decide that Alleyne is retroactive to cases on collateral review, see Dodd v. United States, 365 F.3d 1273, 1278 (11th Cir.2004) ("As a panel of this Court noted, every circuit to consider this issue has held that a court other than the Supreme Court can make the retroactivity decision for purposes of 2255(3)."), aff'd, 545 U.S. 353, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005).
Coats argues that Alleyne stated a "right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review [.]" 28 U.S.C. § 2255(f)(3). A new rule of constitutional law must be made retroactive to cases on collateral review in order to benefit from § 2255(f)(3). See Dodd v. United States, 545 U.S. at 358. Coats simply declares that Alleyne announces a newly recognized right which should be declared retroactively applicable. (Doc. No. 1, pp. 14-22). Such a declaration is without merit.
The Supreme Court did not declare that the new rule in Alleyne is retroactive on collateral review, nor is it likely to do so. "Alleyne is an extension of Apprendi",
Further, Alleyne's holding, if applied, would not have any impact on Coats's sentence. In Alleyne, the Supreme Court overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2000) "and held that any fact that increases a defendant's mandatory minimum sentence is an element of the offense that must be submitted to the jury and proved beyond a reasonable doubt." United States v. McKinley, 732 F.3d 1295. However, Alleyne was an extension of the Constitutionally-protected rights of a defendant at sentencing
U.S. v. McKinley, 732 F.3d at 1296 (internal citations omitted)(emphasis supplied).
The Alleyne decision itself, and Eleventh Circuit binding authority applying that decision, make clear that the facts reserved to a jury for sentencing enhancements do
United States v. Harris, 741 F.3d 1245, 1249-1250 (11th Cir.2014). See also, U.S. v. Rivas, ___ Fed. App'x ____, No. 13-13141, 2014 WL 486723 (11th Cir. Feb.7, 2014) (unpublished) ("Alleyne, however, did not address prior-conviction sentencing enhancements. Instead, the Supreme Court explicitly stated that it was not revisiting the "narrow exception to this general rule for the fact of a prior conviction." (citing Alleyne at 2160 n. 1.)).
Coats misunderstands Apprendi and accordingly misunderstands Alleyne. In Alleyne, the Supreme Court reiterated the meaning of "facts" for purposes of the Constitutional right to a jury determination as follows. "The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an `element' or `ingredient'
The facts which increased Coats's minimum mandatory sentence were his prior convictions. Thus, application of the increased mandatory minimum to Coats did not violate Apprendi or Alleyne. Accordingly, the only portion of his petition which he even argues is not time-barred (the fifth "ground") is, in fact, time-barred.
In his Memorandum of Law (doc. 6) Coats argues, for the first time, that he is entitled to equitable tolling of the limitations period. In sum, he argues that, prior to Alleyne, he lacked a credible § 2255 claim."
Pursuant to Rule 11(a) of the Rules Governing 2255 Proceedings, the court finds that a certificate of appealability in this case is not well-founded, and any application for one is due to 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 dismissing Coats's motion to vacate, nor could a reasonable jurist conclude that Coats should be allowed to proceed further with respect to his claims. Id., 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, Coats is not entitled to a certificate of appealability.
The instant Motion is dismissed as time-barred pursuant to 28 U.S.C. 2255(f)(1). Alleyne does not apply retroactively. Even if it did, Alleyne did not change the law regarding a sentence enhancement, such as Coats's, which is based on a prior conviction. Finally, at sentencing, Coats admitted his prior conviction. Coats is not entitled to a certificate of appealability and, therefore, he is not entitled to appeal in forma pauperis.
