MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

I. Procedural History

On June 14, 2016, Christopher Earl Oden filed with a counseled motion pursuant to 28 U.S.C. § 2255. (Doc. 1). He asks this court to vacate the sentence imposed upon him on September 25, 2012, in case 2:12-CR-201-JHH-RRA1. (Crim. Doc. 12). Mr. Oden was found guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Id.). At sentencing, the court applied the Armed Career Criminal Act ("ACCA")2 enhancement based upon its finding that Mr. Oden had three or more prior convictions that qualified as "violent felonies" under the ACCA. Without that enhancement, the statutory maximum sentence authorized by law (absent other statutory provisions, none of which are at issue in this case) was 120 months.

At the parties' joint request (Doc. 5), this Court stayed this action on July 19, 2016, pending a decision by the Eleventh Circuit Court of Appeals in either of the following cases: United States v. Heard, No. 15-10612, or United States v. Gundy, No. 14-13113. The Eleventh Circuit decided United States v. Gundy, 842 F.3d 1156 (11th Cir. 2017) in a published opinion issued on February 22, 2017. On February 23, 2017, the Government notified the Court of the Gundy decision. (Doc. 7). The Court lifted the stay and ordered Mr. Oden to show cause why his petition should not be dismissed or denied in light of that decision. (Doc. 8). Mr. Oden replied on March 13, 2017. (Doc. 9). However, on June 16, 2017, the parties advised the Court that a petition for writ of certiorari as to the Gundy decision was pending before the United States Supreme Court and asked this Court to further stay this action pending a decision by the Supreme Court. (See Docs. 11 and 13). The Court agreed and accordingly stayed this action again. (Doc. 14). On October 4, 2017, the Government advised this Court that the Gundy petition had been denied. (Doc. 15). On November 6, 2017, the Court ordered the parties to show cause why the stay should not be lifted and to file any remaining arguments. (Doc. 16). The parties have now done so. (Docs. 17 and 18). The matter is therefore ripe for submission.

II. Issue Presented

The premise for Mr. Oden's motion is that application of the ACCA enhancement to him was error in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), as made retroactively applicable by Welch v. United States, 136 S.Ct. 1257 (2016). (Doc. 1 at 3) ("In light of Johnson v. United States [. . .] and Welch v. United States [. . .], Mr. Oden is entitled to be resentenced without the ACCA enhancement because his Alabama and Georgia burglary convictions no longer qualify as violent felonies.").

III. THE UNDERLYING CRIMINAL CASE3

IV. Analysis

Mr. Oden initially argued that none of Mr. Oden's burglary convictions (one under Alabama law and four under Georgia law) qualify, after Johnson, as violent felonies under the ACCA and thus he should be resentenced without application of the ACCA enhancement. (Doc. 1). However, in light of the intervening binding decision of the Eleventh Circuit Court of Appeals in United States v. Gundy, 842 F.3d 1156 (11th Cir. 2017), he now argues he "does not disagree with the government's description of Gundy or his PSR and leaves the merits of the § 2255 claim to the Court in light of Gundy." (Doc. 9 at 5; see also Doc. 18).4 In sum, because Mr. Oden had four Georgia burglary convictions, at this point the parties are not arguing about Mr. Oden's singular Alabama burglary conviction or any procedural bar.

In Gundy, the Eleventh Circuit Court of Appeals that held that Georgia burglary is divisible into generic and nongeneric forms of burglary, so that a conviction for Georgia burglary may be deemed a conviction for generic burglary i.e., unlawfully entering a building or structure with the intent to commit a theft, if the conviction is supported by Shepard documents. United States v. Gundy, 842 F.3d at 1166-69. As set out in the PSR and adopted by the Court, each of Oden's four Georgia burglary are convictions for generic burglary because the indictments for each of those convictions all charged him with burglarizing traditional "buildings," i.e. T&D Mechanical, Inc. and Tom's Foods, Inc. See PSR, ¶ 32 (reviewing indictments). Accord Gundy, 842 F. 3d at 1168-69 (looking to indictments to conclude that Gundy was convicted of generic robbery under Georgia law). Because Oden has four qualifying violent-felony predicate offenses, his sentence was validly enhanced under the ACCA.

V. Conclusion

Because Oden has, after retroactive application of the holding in Johnson, four prior convictions for Georgia burglary that qualify as predicate convictions for purposes of the ACCA enhanced penalty, his motion is due to be, and hereby is, DENIED. This case will be DISMISSED WITH PREJUDICE. Additionally, the Court finds that Oden is not entitled to a certificate of appealability.

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, 336 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Oden has not made the requisite showing in these circumstances.

DONE and ORDERED.