Knight v. United States of America

Middle District of Florida, flmd-8:2016-cv-00764

ORDER dismissing the {{1}} --motion to vacate, set aside or correct sentence (2255) -- Criminal Case No. 8:09-cr-146-T-23MAP; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER A JUDGMENT against Knight and to CLOSE the case. Signed by Judge Steven D. Merryday on 1/25/2019. (GSO)

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PageID 80 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION UNITED STATES OF AMERICA v. CASE NO. 8:09-cr-146-T-23MAP 8:16-cv-764-T-23SPF THOMAS EDWARD KNIGHT, / ORDER On March 30, 2016, Thomas Knight moved (Doc. 1) under 28 U.S.C. § 2255 to vacate his sentence based on Johnson v. United States, 135 S.Ct. 2551 (2015). The government responds (Doc. 7), and Knight replies (Doc. 10). Knight's motion is untimely. The Anti-Terrorism and Effective Death Penalty Act creates for a motion to vacate a one-year limitation that runs from "the date on which the judgment of conviction becomes final," 28 U.S.C. § 2255(f)(1). Because Knight filed no direct appeal, his conviction was final in February 2010, at the conclusion of the fourteen days for filing a notice of appeal. Fed. R. App. P. 4(b)(1)(A) (2009); see Murphy v. United States, 634 F.3d 1303, 1314 (11th Cir. 2011) (holding that a Rule 35(b) sentence reduction does not affect a judgment's finality). The one-year limitation expired in February 2011. For a Supreme Court decision to refresh the limitation under Section 2255(f)(3), the decision must both (1) recognize a new right and (2) retroactively PageID 81 apply to cases on collateral review. Beeman v. United States, 871 F.3d 1215, 1219 (11th Cir. 2017). Knight relies on Johnson, which holds unconstitutional the residual clause of the Armed Career Criminal Act, but Johnson entitles Knight to no relief. Knight was sentenced as a career offender under Section 4B1.1, United States Sentencing Guidelines. In contrast to ACCA, the advisory guidelines are not subject to a vagueness challenge. Beckles v. United States, 137 S. Ct. 886, 895 (2017); United States v. Matchett, 802 F.3d 1185, 1196 (11th Cir. 2015). The motion to vacate (Doc. 1) is DISMISSED. The clerk is directed to enter a judgment against Knight and to CLOSE this case. Because Knight fails to show that reasonable jurists would debate the merits of the procedural issues or the merits of the claims, a certificate of appealability is DENIED. 28 U.S.C. § 2253(c)(2); Lambrix v. Sec'y, Fla. Dep't of Corrs., 851 F.3d 1158, 1169 (11th Cir. 2017). Leave to appeal in forma pauperis is DENIED. Knight must obtain permission from the circuit court to appeal in forma pauperis. ORDERED in Tampa, Florida, on January 25, 2019. -2-