REPORT AND RECOMMENDATION

G. R. SMITH, Magistrate Judge.

Having pled guilty to, and been sentenced for possession of a firearm by a convicted felon, (doc. 32 (guilty plea)1, doc. 41 (judgment)), Anthony Peek moves under 28 U.S.C. § 22552 for resentencing absent an armed career criminal enhancement. Doe. 52. Preliminary review under Rule 4 of the Rules Governing Section 2255 Proceedings shows that his motion must be denied.

Peek's Presentence Investigation Report (PSI) deemed him an "armed career criminal" under the Armed Career Criminal Act ("ACCA") based on prior convictions for the sale of cocaine, the sale of "marihuana," and burglary. 18 U.S.C. § 924(e); PSI 1118. After adopting the PSI, the Court sentenced him to 180 months' imprisonment, the mandatory minimum for felon-in-possession convictions for armed career criminals. Doc. 41; PSI ¶ 48. Because he never appealed, Peek's conviction became final on March 22, 2010. Fed. R. App. P. 4(b)(1)(A) (criminal defendants must file a notice of appeal within 14 days of the entry of judgment).

Defendant filed the instant § 2255 motion more than eight years later. Doc. 47 at 12 (filed August 4, 2015). He argues that Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), means he no longer qualifies as an armed career criminal and thus is serving a sentence beyond the applicable statutory maximum. Doe. 52 at 4. He apparently premises his motion's timeliness on the idea that Johnson establishes a "retroactive right" applicable to his case. See 28 U.S.C. § 2255(0(3). It does not, at least in this case.3

Some background: The ACCA 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." 18 U.S.C. § 924(e)(1). Plain vanilla felon-in-possession convictions bring a maximum 10 year sentence, see 18 U.S.C. § 922(a)(2), while the ACCA enhancement mandates a 15 year minimum (and a maximum of life). 18 U.S.C. § 924(e)(1).

The ACCA 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). But that "residual" clause is so vague, Johnson held, that it violates due process. See 135 S.Ct. 2551, 2557. Johnson, however, said nothing about ACCA enhancements predicated on convictions for "serious drug offenses" or "violent felonies" classed as such under ACCA provisions other than the residual clause.4 See, e.g., Johnson, 135 S. Ct. at 2563 ("Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony," much less its definition of a "serious drug offense"). Enhancements based on those offenses remain valid. See United States v. Darling, 619 F. App'x 877, 880 n. 5 (11th Cir. 2015) ("Johnson ... has no bearing" on ACCA enhancements based on serious drug offense predicates); United States v. Tinker, 618 F. App'x 635, 637 (11th Cir. 2015) (convictions that qualify as violent felonies under the "elements" clause of the ACCA rather than the "residual" clause survive Johnson).

As the PSI makes clear, Peek's sentence was enhanced because of two convictions for "serious drug offenses" and one for an enumerated offense (burglary). Those are not residual clause violent felonies. See PSI ¶ 18. Hence, even after Johnson, he has at least three ACCA predicate offenses and cannot obtain § 2255 relief.

It follows that Peek cannot look to § 2255(f)(3) to define when his one-year statute of limitations began to run. Instead, he's relegated to § 2255(f)(1), which dictates that the clock started the day his conviction became final (March 22, 2010). It ran out on March 22, 2011 (he never appealed or sought post-conviction relief before now), so his motion is untimely. Even if not, Johnson's unavailability means Peek fails to state any claim for relief.5 His sentence remains valid (no due process violation), so no grounds exist on which to rest the resentencing he seeks. See 28 U.S.C. § 2255(a) (those in prison on federal sentences may only move to correct their sentence if it was "imposed in violation of the Constitution or laws of the United States").

Accordingly, Peek's § 2255 motion should be DENIED. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule 11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. § 2255 ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.") (emphasis added).

SO REPORTED AND RECOMMENDED.