Opinion
3:16-cr-00041-CAR-CHW-1 Civil 3:23-cv-00024-CAR-CHW
10-31-2023
MICHAEL DESHAWN JOHNSON, Movant, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND RECOMMENDATION PROCEEDINGS UNDER 28 U.S.C. § 2255 BEFORE THE U.S. MAGISTRATE JUDGE
Charles H. Weigle United States Magistrate Judge
Presently pending before the Court is Movant Michael Deshawn Johnson's motion to vacate his sentence under 28 U.S.C. § 2255 (Doc. 278, 280) and the Government's motion to dismiss the Section 2255 motion as untimely. (Doc. 281). Because Plaintiff's motion is untimely and no factors toll the one-year statute of limitation, it is RECOMMENDED that the Government's motion to dismiss be GRANTED and Movant's Section 2255 motion to vacate be DISMISSED.
BACKGROUND
On November 8, 2016, Movant was indicted for fifteen counts of various controlled substances charges. (Doc. 1). With the assistance of counsel, Movant waived indictment by the grand jury and pled guilty to a superseding information charging one count of conspiracy to possess with intent to distribute crack cocaine and marijuana under 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). (Docs. 120-124). The plea agreement explained that this count carried a maximum term of imprisonment of twenty years, a maximum fine of $1,000,000, and at least three years of supervised supervision. (Doc. 123, p. 2-3).
Although he faced a maximum prison sentence of 20 years or 240 months, Movant's sentencing guideline range was 151 to 188 months based upon a total offense level of 29 and a criminal history category of VI. (Doc. 178, ¶ 95). The pre-sentence report (PSR) classified Movant as a career offender under U.S.S.G § 4B1.1,which counted three prior felony convictions for possession of cocaine with intent to distribute. (Id., ¶ 27). The PSR explained, however, that even without the career offender classification, Movant's criminal history category would still be VI because his criminal history score was fourteen. (Id. ¶ 75). No objections were filed to the PSR (Doc. 178-1), and on August 8, 2017, the Court sentenced Movant to serve 188 months consecutive to any state sentence from Walton County Superior Court. (Doc. 182). The Court entered judgment on August 16, 2017. (Id., p. 1). Movant did not directly appeal his conviction.
“Under [U.S.S.G. §] 4B1.1(a), a defendant in classified as a career offender if: (1) he was at least 18 years old at the time he committed the instance offense; (2) the instant offense is a felony that is either a ‘crime of violence' or a ‘controlled substance offense'; and (3) he had at least 2 prior felony convictions for either a ‘crime of violence' or a ‘controlled substance offense.”' United States v. Metzler, 2023 WL 5746643, (11th Cir. 2023).
On August 1, 2022, Movant requested the appointment of counsel to assist him in drafting and filing a request for relief under the First Step Act and Concepcion v. United States, 142 S.Ct. 2389 (2022). (Doc. 271). In denying Movant's request for counsel, the Court explained that Conception did not afford Movant any relief. (Doc. 272).
In February 2023, over five years after he was sentenced, Movant, pro se, filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (Doc. 278). The Court instructed Movant to amend his motion to include all his claims and the Government to respond after any such amendment. (Doc. 279). In response to the court order, Movant amended his motion. (Doc. 280). In lieu of a response, the Government moved to dismiss Movant's Section 2255 motion as untimely. (Doc. 281). Movant filed a response and surreplyto the motion to dismiss. (Docs. 282, 284).
While docketed as a supplemental response, Movant's surreply is labeled “petition to strike and object to Government's second and successive reply motion to Petitioner's initial §2255 petition.” (Doc. 284). The Government's reply brief (Doc. 283) concerned its motion to dismiss, thus the Government was not filing a surreply to Movant's Section 2255 motion. As the moving party, the Government was permitted to file a reply brief. See, e.g., M.D. Ga. L.R. 7.3 and 7.3.1. Movant's petition to strike the government's reply brief (Doc. 283) is therefore DENIED.
In his motion and response to the Government's motion to dismiss, Movant argues that his untimeliness is excused because two recent decisions, United States v. Taylor, 142 S.Ct. 2015 (2022) and United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023), show that he was erroneously classified as a career offender, that his crime of conviction is not a “controlled substance offense,” and that his sentence represents a manifest injustice. (Docs. 278, 280, 282). He also alleges that his trial counsel was ineffective for failing to file a notice of appeal. (Id.). As explained below, Movant's Section 2255 motion is untimely and no tolling provisions apply to his case. The Government's motion to dismiss should be granted and Movant's Section 2255 motion should be dismissed.
ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires § 2255 motions to be brought within one year of the latest of four possible dates. 28 U.S.C. § 2255(f)(1)-(4). The triggering dates applicable to this case are “the date on which the judgment of conviction becomes final,” 28 U.S.C. § 2255(f)(1), and “the date on which the right was asserted was initially recognized by the Supreme Court, if that 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).
Since Movant did not directly appeal his conviction or sentence, his judgment of conviction became final when the time for filing a direct appeal expired. See Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011). According to the Federal Rules of Appellate Procedure in effect at the time of Movant's sentencing, Movant had fourteen days after the entry of judgment to file a notice of appeal. See Fed. R. App. P. 4(b)(1)(A)(i). Therefore, for purposes of AEDPA's limitations period, Movant's judgment of conviction became final on August 30, 2017. Absent tolling, the time for collateral review of that conviction expired a year later, on August 30, 2018. Because Movant filed this Section 2255 motion in February 2023-over five years after the limitations period expired-his motion is untimely, and thus subject to dismissal under 28 U.S.C. § 2255(f)(1).
Movant asserts that the later triggering date found in 28 U.S.C. § 2255(f)(3), which relates to newly recognized, retroactively applicable rights, applies to his motion. Specifically, Movant argues that the Supreme Court's holding in Dupree announced a new rule of law that has been made retroactively applicable to cases on collateral review. Movant's argument is unavailing.
In Dupree, the Eleventh Circuit considered whether the definition of “controlled substance offense” as used in U.S.S.G. § 4B1.2(a) included inchoate offenses, such as conspiracy and attempt, and held that it did not. Dupree, 57 F.4th at 1277. Irrespective of how or if Dupree effects Movant's career offender classification or his sentencing guidelines, it still does not rescue his motion from being untimely. In order for a newly recognized right to provide a tolling safe harbor under 28 U.S.C. § 2255(f)(3), the Supreme Court must have recognized and made it retroactive, but Dupree was a case decided by the Eleventh Circuit Court of Appeals. In recently rejecting a successive Section 2255 motion application in which the movant argued that, under Dupree, his conspiracy conviction enhanced by his career offender status was no longer valid, the Court of Appeals explained that “Dupree did not announce a new rule of constitutional law, was not decided by the Supreme Court, and was not held to apply retroactively by the Supreme Court, and amendments to sentencing guidelines were not new rules of constitutional law.” In re Campbell, No. 23-11068-B, 2023 U.S. App. LEXIS 9332 (11th Cir. April 19, 2023). Movant is similarly situated, and Dupree likewise does not make his Section 2255 motion timely.
Movant attempts to bypass Dupree's limitations by citing United States v. Taylor, a decision where the Supreme Court found that “a crime is only a ‘crime of violence' under the elements clause of the.. .Armed Career Criminal Act when the government must prove, as an element of its case, ‘the use, attempted use, or threatened use of force.” Metzler, 2023 WL 5746643, *2 (citing Taylor, 142 S.Ct. at 2020); (Docs. 282). Movant admits that Taylor and Dupree are not identical but instead should be read together to invalidate the use of inchoate offenses for enhancement of sentences. (Doc. 282). While Movant is correct that reading Taylor and Dupree may be instructive in some instances (see Metlzer, 2023 WL 5746643), his reliance on these cases in combination to make the current motion timely is misplaced. In re Wright, No. 23-10921-C, 2023 U.S. App. LEXIS 8495 (11th Cir. 2023) (rejecting an application for a successive Section 2255 motion by explaining that Taylor did not announce a new rule of constitutional law and Dupree was a panel decision instead of a Supreme Court decision and did not set forth a new rule of constitution law). Movant's Section 2255 is untimely and the recent decisions in Dupree and Taylor do not provide any tolling relief under §2255(f)(3).
Movant, nevertheless, suggests that his enhanced sentence is unlawful and represents a manifest injustice or miscarriage of justice that must be cured. (Docs. 280, 282). Movant is again misguided. A sentencing guideline miscalculation does not create a miscarriage of justice that is cognizable in a Section 2255 motion. Brown v. United States, 688 Fed.Appx. 644, 651 (11th Cir. 2017) (“‘[A] misapplication of advisory sentence guidelines' is not reviewable under § 2255”) (citing Spencer v. United States, 773 F.3d 1132, 1138-1140 (11th Cir. 2014)). “This is because the Guidelines are merely advisory and any error in calculating the Guidelines produces neither an illegal sentence in excess of the statutory maximum penalty nor a sentence that could not be reimposed at sentencing.” Id. Movant's sentence falls below this threshold, as he was sentenced to serve 188 months, a sentence below the 20-year statutory maximum penalty and a sentence that could be reimposed by the Court. “Furthermore, the extent of an increase to a defendant's Guidelines range [from a misapplied] Guidelines provision, including the misapplication of the career offender provision, does not alter the conclusion that a Guidelines error does not constitute a ‘fundamental defect' or ‘result in a complete miscarriage of justice.” Id. (citing Spencer, 773 F.3d at 1142).
Movant also argues that he is entitled to equitable tolling for his ineffective assistance of counsel claim based upon his attorney's failure to file a timely notice of appeal as directed. This argument also fails. The one-year limitation period for filing a Section 2255 motion may be equitably tolled when a movant “untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (quotation omitted). “Equitable tolling is only available if the [movant] establishes (1) extraordinary circumstances and (2) due diligence. Outler v. United States, 485 F.3d 1273, 1280 (11th Cir. 2007). If Movant's delay in filing results from a lack of due diligence, courts need not consider whether extraordinary circumstances exist. Id. Moreover, “[e]quitable tolling is an extraordinary remedy and is applied sparingly.” Id. (citing Drew v. Department of Corrections, 297 F.3d 1278, 1286 (11th Cir. 2003)).
Movant has not shown, and the record does not suggest, that he diligently pursued his right to seek post-conviction relief. There is also no suggestion that any extraordinary circumstance prevented the timely filing of this Section 2255 motion. Movant argues that his attorney lied to him and led him to believe that his appeal had been filed but denied and that the appellate court issues no opinions for denied appeals. (Doc. 282, p. 2-3). Even taking what Movant recounts his attorney saying as true, it does not follow that Movant would have reasonably believed that an appellate court would not document the outcome of a case or that Movant was prevented from doing some sort of follow-up to verify his appeal status. Moreover, Movant does not explain how or why the Dupree decision caused him to “[learn] of his trial counsel's deception.” (Doc. 232, p. 3). The record fails to excuse Movant's lack of diligence over the last five years. Movant is not entitled to equitable tolling of the one-year period of limitation based upon his ineffective assistance of counsel claim, and therefore, Movant's Section 2255 motion should be dismissed as untimely.
Even if Movant could timely raise an ineffective assistance counsel claim, the claim would not be meritorious. Movant explains he wanted trial counsel to appeal based upon the issues considered and resolved in Dupree. (Doc. 280, p. 2). Movant was sentenced in 2017. Dupree was decided in 2023. An attorney cannot be ineffective for failing to “[foresee] the future development of constitutional law.” United States v. Lee, 2023 WL 1781648, *3 (M.D. Fla. Feb. 6, 2023) (evaluation ineffective assistance of counsel under Dupree being decided after a defendant's sentencing) (citing Thompson v. Wainwright, 787 F.2d 1447). Movant's ineffective assistance of counsel claim would not provide him with any relief.
CONCLUSION
For the reasons discussed herein, it is RECOMMENDED that Government's motion to dismiss (Doc. 281) be GRANTED and Movant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docs. 278, 280) be DISMISSED as untimely. Additionally, pursuant to the requirements of Rule 11 of the Rules Governing Section 2255 Cases, it does not appear that Movant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, it is further RECOMMENDED that the Court deny a certificate of appealability in its final order.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. Any objection is limited in length to TWENTY (20) PAGES. See M.D. Ga. L.R. 7.4. The District Judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are further notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO ORDERED AND RECOMMENDED