Summary
dismissing § 2255 filed in reliance on Descamps as untimely
Summary of this case from Cochran v. United StatesOpinion
CASES NO. 4:07cr38-RH/GRJ 4:14cv224-RH/GRJ
05-31-2014
UNITED STATES OF AMERICA v. TERRANCE BOYKIN, Defendant.
ORDER DENYING THE § 2255 MOTION
The defendant Terrance Boykin has moved under 28 U.S.C. § 2255 for relief from his judgment of conviction. He claims that he was improperly treated as a career offender under the United States Sentencing Guidelines Manual. The claim is plainly wrong.
A career offender must have two prior convictions of a violent crime or drug-trafficking offense. Mr. Boykin had prior convictions of resisting arrest with violence and possessing cocaine with intent to distribute it. These are qualifying prior convictions.
The § 2255 motion is before the court on the magistrate judge's report and recommendation, ECF No. 116, and the objections, ECF No. 117. I have reviewed de novo the issues raised by the objections.
The report and recommendation correctly concludes that the § 2255 motion was filed after expiration of the one-year statute of limitations. Mr. Boykin's conviction became final in 2009 when it was affirmed by the Eleventh Circuit and the time expired for filing a petition for a writ of certiorari. Mr. Boykin filed the § 2255 motion in 2014, long after the deadline.
In arguing that the motion is timely, Mr. Boykin asserts that a new one-year period opened with the Supreme Court's decision in Descamps v. United States, 133 S. Ct. 2276 (2013). Descamps dealt with a burglary conviction and would not help Mr. Boykin, even if the case could be applied on the merits. And even more clearly, Descamps does not render Mr. Boykin's motion timely. A new one-year period opens only for a motion based on a right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). Descamps has not been made retroactively to cases on collateral review.
In sum, Mr. Boykin's § 2255 motion is both untimely and unfounded on the merits.
A defendant may appeal the denial of a § 2255 motion only if the district court or court of appeals issues a certificate of appealability. Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a § 2254 petition on the merits). As the Court said in Slack:
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot, includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further."Slack, 529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to obtain a certificate of appealability when dismissal is based on procedural grounds, a petitioner must show, "at least, 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." Slack, 529 U.S. at 484.
Mr. Boykin has not made the required showing. This order thus denies a certificate of appealability.
For these reasons,
IT IS ORDERED:
1. The clerk must enter a judgment stating, "The defendant's motion for relief under 28 U.S.C. § 2255 is DENIED.
2. A certificate of appealability is DENIED.
Robert L. Hinkle
United States District Judge