Hawkins v. United States of America

Middle District of Florida, flmd-8:2016-cv-01890

ORDER denying {{1}} Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment against Petitioner and to close this case. Signed by Judge Susan C Bucklew on 7/22/2016. (JD)

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PageID 16 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION DEVELL LAMAR HAWKINS Petitioner Case No. 8:16-cv-1890-T-24AAS vs UNITED STATES OF AMERICA Defendant _________________________________/ ORDER Before the Court is pro se Petitioner's 28 U.S.C. § 2255 motion to vacate, set aside or correct an illegal sentence. A motion to vacate must be reviewed prior to service on the Government. See Rule 4 of the Rules governing § 2255 cases. If the "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the motion is properly dismissed without a response from the Government. 28 U.S.C. § 2255(b). A review of Petitioner's § 2255 motion and the record demonstrate that the motion must be dismissed without a response from the Government. Petitioner was sentenced to 262 months incarceration on November 30, 2005, for the crimes of possession of a firearm by a convicted felon in violation of 18 U.S.C. §922(g)(1) (count one), and possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) (count two). He was sentenced as a career offender. Petitioner did not appeal. Petitioner filed a first 28 U.S.C. § 2255 motion on June 22, 2016 (date Petition was signed). Petitioner seeks to vacate his sentence based on Johnson v. United States, 135 S.Ct. 2551 PageID 17 (2015), which was held to be retroactive on collateral review in Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016). Johnson held that the "residual clause" of the Armed Career Criminal Act ("ACCA"), see 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutional. Petitioner admits he was sentenced as a career offender but argues his career offender designation is erroneous and that he should be re-sentenced without the career offender designation. Petitioner also raises two other claims unrelated to Johnson, but those claims are untimely and due to be dismissed. After careful consideration, the Court concludes that Johnson affords Petitioner no collateral relief with regard to his sentence, because he was not sentenced under the residual clause of the ACCA, He was sentenced as a career offender under the United States Sentencing Guidelines (USCG) §4B1.1. The Eleventh Circuit held in United States v. Machete, 802 F.3d 1185, 1193-96 (11th Cir. 2015) that the vagueness doctrine upon which the Supreme Court invalidated the ACCA's residual clause in Johnson does not similarly apply to the advisory Sentencing Guidelines. In addition, in the case of In re Griffin, No. 16-12012, manuscript op. at 7-10 (11th Cir. May 25, 2016), the court observed that an applicant seeking to raise a Johnson-based challenge to his career offender enhancement cannot benefit from the Supreme Court's ruling in Welch because Welch did not make Johnson retroactive for purposes of raising a guidelines challenge just because it happened to be based on the residual clause. Petitioner's § 2255 motion is untimely under 28 U.S.C.§ 2255(f)(1), since it was filed more than one year from the date his conviction became final, and he cannot benefit from an extended limitation period under § 2255(f)(3). Accordingly, the Court orders: That Petitioner's motion to vacate is DENIED. The Clerk is directed to enter judgment PageID 18 against Petitioner and to close this case. ORDERED at Tampa, Florida, on July 22, 2016. Copy: pro se Petitioner