MEMORANDUM OPINION
VIRGINIA EMERSON HOPKINS, District Judge.
This cause is before the court on Defendant Desmond Chad Pruitt's motion to vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255 (Doc. cv-1; cr-35, as amplified in Doc. cv-5) and the Government's response (Doc. cv-13). The motion (Doc. cv-1) was filed on April 5, 2016. It is Pruitt's first motion under section 2255. For the reasons set out below, the motion is DENIED.
BACKGROUND
On April 26, 2011, Pruitt pleaded guilty to felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Doc. cv-1; cr-docket entry dated 4/26/2011). On July 19, 2011, the district court (Hancock, J.) imposed sentence. (Cr-docket entry dated 7/19/2011). Judgment was entered by the district court that same date. (Doc. cr-19). Pruitt was sentenced to a term of 72 months imprisonment. (Id.). Pruitt appealed. (Doc. cr-20). The United States Court of Appeals for the Eleventh Circuit affirmed. The Eleventh Circuit entered judgment on October 18, 2012 (Doc. cr-32). On April 5, 2016, the criminal case was reassigned to the undersigned. (Cr-docket entry dated April 5, 2016).
DISCUSSION
I. All Claims Not Based on Johnson Are Time-Barred
On April 24, 1996, a substantial amendment to 28 U.S.C. § 2255 became effective. That amendment, Section 105 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, established a one-year "period of limitation" for the filing of a Section 2255 motion, to run from the latest of: 1) the date on which the judgment of conviction becomes final; 2) the date any unconstitutional government impediment, if any, precluding the movant from making a motion is removed; 3) the date on which the right asserted was initially recognized by the United States Supreme Court; or 4) the date on which the facts supporting the claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255, as amended by Pub. L. No. 104-132, Title 1, § 105 (Apr. 24, 1996).
For final judgments entered after the effective date of the AEDPA, or April 24, 1996, as in this case, the statute of limitations begins to run on the date the district court's judgment of conviction becomes final. "For the purpose of starting the clock on Section 2255's one-year limitation period, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court's affirmation of the conviction." Clay v. United States, 537 U.S. 522, 525 (2003). Pruitt's judgment of conviction became final on December 13, 2012, when the time for filing a petition for certiorari contesting the appellate court's affirmation of the conviction expired.1 Pruitt had until December 13, 2013, to file a timely Section 2255 motion to vacate.
However, Pruitt's petition asserts that his sentence is due to be vacated under Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015). He thus implicitly argues that his motion is timely under Section 2255(f)(3).2,3 Johnson was issued on June 26, 2015. Thus, under paragraph (f)(3) of Section 2255, the date by which he must present his 2255 petition asserting Johnson is June 26, 2016. Pruitt's motion was filed on April 4, 2016. Thus, any claim asserted by Pruitt under Johnson is timely.4 However, his other challenges are not.5
II. Pruitt's Johnson Claim Fails on the Merits
A. USSG § 4B1.2 does not violate the Due Process Clause.
Pruitt "conced[]s that his sentence was not e[]hanced under the Armed Career [C]riminal Act" (Doc. cv-5 at 2), but alleges that his sentence was improperly
enhanced under [§] 2K2.1(a)(4) of the United States [Sentencing] [G]uidelines[,] [w]hich moved [Pruitt's] base [offense] level from 18 to 20. [T]his increase was brought about by prior convictions considered to be violent, the qualification for those crimes was brought about under the residual clause of the Guidelines contained in § 4[B]1.2 which was referenced by § 2[K]2.1 for the definition of a crime of violence.
(Id.).
He then explains that he is arguing that, because the residual clause of U.S.S.G. § 4B1.2 contains the same exact language as the residual clause of the Armed Career Criminal Act ("ACCA"), and because the Supreme Court, in Johnson, decided that the residual clause of the ACCA was unconstitutional, the residual clause of U.S.S.G. § 4B1.2 is "equally unconstitutional." (Id.).
This argument was expressly rejected by the United States Supreme Court on March 6, 2017, in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886 (2017). In Beckles, the Supreme Court explained that the residual clause in Johnson violated the Due Process Clause under
"the void-for-vagueness doctrine [which] requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." For the latter, the Court has explained that "statutes fixing sentences[]" must specify the range of available sentences with "sufficient clarity[.]"
In Johnson, we applied the vagueness rule to a statute fixing permissible sentences. The ACCA's residual clause, where applicable, required sentencing courts to increase a defendant's prison term from a statutory maximum of 10 years to a minimum of 15 years. That requirement thus fixed—in an impermissibly vague way—a higher range of sentences for certain defendants.
Unlike the ACCA, however, the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) therefore is not void for vagueness.
Beckles v. United States, 137 S.Ct. 886 (emphasis supplied)(internal citations and parentheticals omitted).
As Beckles makes abundantly clear, Johnson has no impact on Pruitt's sentence.
B. Pruitt's triggering prior conviction was for a serious drug offense.
Additionally, Pruitt's base offense level was set at 20 because of his one prior conviction for a serious drug offense. The Presentence Report ("PSR") stated, in relevant part:
14. Base Offense Level: The guideline for this violation of 18 U.S.C. § 922(g) is found at U.S.S.G. § 2K2.1(a)(4)(A), which requires a base offense level of 20 if the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense. As noted below, the defendant was convicted of a youthful offender offense for Unlawful Sale of Cocaine, a controlled substance offense. As a result, the base offense level is 20. It is noted that, pursuant to § 2K2.1, comment. (n.1), "controlled substance offense" has the meaning given at § 4B1.2(b).
Despite Pruitt's argument to the contrary, there simply was no reference to any "crime of violence" in setting Pruitt's base offense level. Further, Johnson did not call into question, much less find unconstitutional, the definition of "controlled substance offense." And, to the extent that Pruitt may be trying to argue that this Court should extend the Johnson holding to 4B1.2(b)'s definition of "controlled substance offense," Beckles forecloses that argument.
III. Conclusion
Accordingly, the Motion is due to be DENIED and this case will be DISMISSED WITH PREJUDICE. Additionally, the court finds that Pruitt is not entitled to a certificate of appealability.6
A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his petition. See 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, defendant "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)). Pruitt has not made the requisite showing in these circumstances.
Finally, because Pruitt is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED.
