Opinion
4:14-CR-2-CDL-MSH 4:22-CV-186-CDL-MSH
06-14-2023
KEVIN T. BURTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the Government's motion to dismiss Petitioner Kevin Burton's motion to vacate his sentence under 28 U.S.C. § 2255 (ECF Nos. 146, 144). For the reasons explained below, it is recommended that the Government's motion be granted.
BACKGROUND
On January 20, 2015, Burton pleaded guilty under a superseding indictment to possession with intent to distribute cocaine base in excess of 28 grams. Plea Sheet, ECF No. 77; 2d Superseding Indictment 1, ECF No. 63. Following Burton's guilty plea, the United States Probation Office (“USPO”) prepared a pre-sentence report (“PSR”) (ECF No. 94) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). In calculating an adjusted offense level, USPO added two levels for Burton's leadership role in a criminal enterprise, resulting in an adjusted offense level of 28. PSR ¶¶ 30-32, ECF No. 94. Burton, however, was a career offender under the Guidelines because he had at least two prior felony controlled substance or crime of violence convictions. Id. ¶¶ 3334; see U.S.S.G. § 4B1.1(a). Because the offense level applicable to a career offender was 34, and this was higher than the offense level otherwise applicable, Burton's adjusted offense level was 34. Id. ¶ 33-34; U.S.S.G. § 4B1.1(b). After a three-level reduction for acceptance of responsibility and entering a plea in a timely manner, Burton's total offense level was 31. Id. ¶¶ 35-37. With a career offender criminal history category of VI, USPO determined Burton's guideline imprisonment range was 188-235 months. Id. ¶ 72. He was sentenced to 188 months imprisonment and four years supervised release. Judgment 2-3, ECF No. 101. Judgment was entered on April 27, 2015. Id. Burton did not appeal. On August 8, 2016, Burton filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (ECF No. 105). The motion was denied for untimeliness under 28 U.S.C. § 2255(f). R. & R. 2-3, ECF No. 108; Order, Oct. 19, 2017, ECF No. 111 (adopting recommendation).
According to the PSR, Burton had two prior felony convictions for distribution of a controlled substance and one conviction for first degree assault in Alabama. PSR ¶¶ 34, 45-46, 49.
On November 22, 2022, the Court received Burton's current motion, wherein he argues he should be resentenced because he is “actually and factually innocent” of being a leader of the criminal enterprise as found in the PSR, and contends if he was resentenced, he would no longer qualify as a career offender under Section 401(a) of the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-391, §401(a), 132 Stat. 5194 (2018). 2d Mot. to Vacate 1, 3-4, ECF No. 144. On January 27, 2023, the Government moved to dismiss Burton's motion as a second or successive § 2255 petition. Gov't's Mot. to Dismiss 4-7, ECF No. 146. Burton responded to the motion to dismiss, arguing his motion was not a motion to vacate under § 2255, but a claim of “actual innocence.” Def.'s Resp. to Mot. to Dismiss 1-2, ECF No. 148. The Government's motion is ripe for review, and the Court recommends it be granted.
DISCUSSION
A prisoner serving a federal sentence may move the sentencing court to “vacate, set aside, or correct” a sentence “imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). However, “[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” newly discovered evidence or a new rule of constitutional law that has been retroactively applied to cases on collateral review. 28 U.S.C. § 2255(h). “Without [this] authorization, the district court lacks jurisdiction to consider a second or successive petition.” United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (per curiam).
Initially, the Court rejects Burton's argument that his motion does not constitute a motion to vacate under 28 U.S.C. § 2255. His motion challenges the legality of his current sentence and seeks to have it vacated or corrected. As such, it is a motion to vacate under § 2255. See 28 U.S.C. § 2255(a) (noting that a prisoner in custody may move to vacate, set aside, or correct a sentence, on the grounds it is, inter alia, “imposed in violation of the Constitution or laws of the United States” or “otherwise subject to collateral attack”). Therefore, the issue is whether Burton's motion constitutes a second or successive petition.
To the extent Burton intends his motion to be one for a sentence reduction under § 401(a) of the First Step Act based on its amendment to the definitions of a “serious drug felony” and “serious violent felony” as described in 21 U.S.C. § 802(57), (58), his motion should be rejected for at least two reasons. For one, § 401 is not retroactively applicable to Burton because he was sentenced prior to its enactment. First Step Act, § 401(c), 132 Stat. 5194, 5221. Second, the First Step Act did not alter the definitions of a “crime of violence” or “controlled substance offence” under U.S.S.G.§ 4B1.2 for career offender purposes. Therefore, his status as a career offender is unaffected. United States v. Wiseman, 932 F.3d 411, 420 (6th Cir. 2019) (“[T]he First Step Act did not affect the definition of offenses that qualify for career offender status under U.S.S.G. § 4B1.1.”); United States v. Jackson, No. CR 113-008, 2020 WL 7379088, at *1 n.1 (S.D. Ga. Dec. 15, 2020) (rejecting defendant's claim that he no longer qualified as a career offender under U.S.S.G.§ 4B1.1 due to First Step Act amendment to the definition of a serious drug offense under the Controlled Substances Act).
As noted, Burton previously filed a motion to vacate, which the Court denied for being untimely under § 2255(f). R. & R. 2-3; Order, Oct. 19, 2017. In order for a second motion to vacate to constitute a second or successive petition for purposes of § 2255(h), the prior motion must have been disposed of in a judgment on the merits. Griham v. United States, 389 F.Supp.3d 986, 990-91 (N.D. Ala. 2019) (citing Boyd v. United States, 754 F.3d 1298, 1302 (11th Cir. 2014)). “The denial of an application for postconviction relief as untimely . . . is a judgment on the merits that renders subsequent applications second or successive.” Id. at 991; see Boykin v. United States, 592 Fed.Appx. 809, 812 (11th Cir. 2014) (per curiam); Candelario v. Warden, 592 Fed.Appx. 784, 785 n.1 (11th Cir. 2014) (per curiam) (“[A] second petition is successive if the first was denied or dismissed with prejudice, and a dismissal for untimeliness is with prejudice ....” (citations omitted)); Carter v. United States, 405 Fed.Appx. 409, 410 (11th Cir. 2010) (per curiam) (remanding for dismissal for lack of jurisdiction a second § 2255 motion filed without permission after first § 2255 motion was dismissed as untimely). Because the Court's denial of Burton's first motion to vacate was a judgment on the merits, he was required to obtain permission from the Eleventh Circuit to file a second or successive motion. The fact that Burton argues actual innocence does not obviate this requirement. See Parham v. United States, No. 5:95-cr-3-CAR, 2007 WL 4256966, at *1 (M.D. Ga. Nov. 30, 2007) (holding that a petitioner claiming actual innocence must still obtain authorization from the Court of Appeals). In the absence of such authorization, the Court lacks jurisdiction to consider his current motion to vacate.
CERTIFICATE OF APPEALABILITY
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate 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.” Id. at 478. Burton cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, it is recommended that the Government's motion to dismiss (ECF No. 146) Burton's second motion to vacate (ECF No. 144) be GRANTED. Additionally, a certificate of appealability should be denied. 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 hereof. 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 hereby 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.”