Opinion
CASE NO. 05-80705-CIV-GONZALEZ.
August 23, 2005
REPORT OF MAGISTRATE JUDGE
Phillip Byron O'Shea, a federal prisoner currently confined at the Federal Correctional Institution in Coleman, Florida, has filed a pro se motion to vacate pursuant to 28 U.S.C. § 2255, challenging the sentence he received in Case No. 94-8126-Cr-Gonzalez.
No order to show cause has been issued in this case because the files and records of the case conclusively show that the prisoner is entitled to no relief.
O'Shea argues that his sentence is unlawful because he was erroneously classified as an armed career criminal. O'Shea relied upon th Supreme Court's decision in Shepard v. United States, ___ U.S. ___, 125 S.Ct. 1254 (2005) to support his claim. The Supreme Court, relying upon the reasoning employed in Taylor v. United States, 495 U.S. 575 (1990), and affirmed a sentencing judge's decision not to consider extraneous evidence (i.e. a police report, complaint or other information) to determine whether a generic burglary was previously committed where the underlying offense was broader than the generic burglary. The sentencing court had declined to impose an armed career enhancement where the statute did not clearly demonstrate that the defendant had committed a predicate offense.
This is O'Shea's third challenge to his sentence. On July 31, 1996, he filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, which was construed as a motion to vacate pursuant to 28 U.S.C. § 2255 and denied. (See Case No. 96-6865-Civ-Gonzalez). He subsequently filed a motion to obtain credit on federal sentence for time spent in State custody. The motion was construed as a motion to vacate pursuant to 28 U.S.C. § 2255, assigned case number 00-8477-Civ-Gonzalez, and dismissed for failure to obtain authorization to file a successive motion. However, the Court entered an amended judgment several months after the motion for credit was filed (Cr. DE# 62).
O'Shea correctly argues that he cannot be precluded from filing the present motion to vacate because it is not successive. The prior petition for writ of habeas corpus and motion for time served were not filed pursuant to 28 U.S.C. § 2255; instead, they were construed as such. The Supreme Court has held that a district court may not recharacterize as a first § 2255 motion apro se litigant's filing that did not previously bear that label, unless the Court first warns the pro se litigant about the consequences of the recharacterization, thereby giving the litigant an opportunity to contest the recharacterization, or to withdraw or amend the motion. Castro v. United States, 540 U.S. 375 (2003). The Supreme Court reasoned that such notification is necessary because under the AEDPA a defendant may only file one motion to vacate, and thereafter will be barred by the rule against successive motions. It does not appear that O'Shea was ever given the opportunity to contest the recharacterization of his previously filed applications. His present motion, therefore, cannot be precluded as a second or successive motion to vacate.
The present motion was filed almost five years after the amended judgment (Cr. DE# 62) was entered and almost ten years after he was originally sentenced (Cr. DE# 35).
Courts may sua sponte consider the issue of the timeliness of a motion to vacate even when the statute of limitations is not pleaded as a defense by the respondent. Jackson Moore, 292 F.3d 1347 (11 Cir. 2002). Pursuant to 28 U.S.C. § 2255, as amended April 24, 1996, a one year period of limitations applies to a motion under the section. The one year period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant is prevented from making a motion by such governmental action;
(3) the date on which the right 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; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
Neither the first, second, or fourth factors enumerated above render the present motion timely, as it was filed more than one year after O'Shea's conviction became timely, there is not allegation that the government created an impediment which precluded the timely filing of the motion or that the facts underlying the claim could not have been previously discovered with due diligence. The only factor which arguably would render the motion timely is the third factor, which starts the one-year clock from the date on which a newly recognized right was initially recognized by the Supreme Court if that right was made retroactively applicable to cases on collateral review.
Shepard, supra did not create a new right; nor was it made retroactive to cases on collateral review. Moreover, O'Shea has not demonstrated that his prior burglary offenses did not meet the definition of a generic burglary, which the Supreme Court previously held to mean a burglary "committed in a building or enclosed space." He lists the prior offenses relied upon in the presentence investigation report as, inter alia: burglary of a dwelling, separate convictions of burglary of a structure, and aggravated battery. O'Shea has not demonstrated that the motion to vacate is timely.
It is therefore recommended that the motion to vacate be dismissed as time-barred.
Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.