Nelson v. United States of America

Middle District of Florida, flmd-8:2016-cv-01715

ORDER: Petitioner Colonel I. Nelson's construed Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1) is DISMISSED. The Clerk is directed to terminate any pending motions and close this case. Signed by Judge James S. Moody, Jr on 7/5/2016. (LN)

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PageID 9 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION COLONEL I. NELSON, Petitioner, v. Case No: 8:16-cv-1715-T-30MAP Crim. Case No: 8:08-cr-435-T-30MAP UNITED STATES OF AMERICA, Respondent. ________________________________/ ORDER THIS CAUSE comes before the Court upon Petitioner Colonel I. Nelson's Petition for Equitable Relief or Remedy at Law, which the Court construes as a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1). By his motion, Petitioner asserts that he is entitled to relief pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), declared retroactive by Welch v. United States, No. 15-6418, 2016 WL 1551144 (Apr. 18, 2016). Because Petitioner's motion is an unauthorized, successive § 2255 motion, it should be dismissed. BACKGROUND Pursuant to a plea agreement, Petitioner entered a guilty plea to (1) conspiring to possess with intent to distribute five grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). (CR Docs. 51-59). On April 24, 2009, the Court sentenced Petitioner to 160 months' PageID 10 imprisonment. (CR Doc. 73). On December 27, 2010, Petitioner filed a motion pursuant to § 2255, which was dismissed as time barred. See Nelson v. United States, No. 8:10-cv- 2701-T-30MAP (M.D. Fla. 2011). DISCUSSION Petitioner's present § 2255 motion is a second or successive motion. Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, federal prisoners who want to file a second or successive motion to vacate, set aside, or correct a sentence must move in the appropriate court of appeals for an order authorizing the district court to consider the second or successive motion. See 28 U.S.C. § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of a second or successive motion only if it determines that the motion contains claims which rely on either: (1) newly discovered evidence that, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. 28 U.S.C. § 2255(h). Because Petitioner has not received authorization to file a second or successive habeas petition from the Eleventh Circuit, this Court lacks jurisdiction to consider his motion and it should be dismissed. See United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) ("Without authorization [from the appropriate court of appeals, a] district court lacks jurisdiction to consider a second or successive petition."). 2 PageID 11 However, for Petitioner's benefit, the Court notes that Petitioner would not be entitled to relief under Johnson. In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act, ("ACCA"), § 924(e)(2)(B)(ii), defining a violent felony as a crime "involv[ing] conduct that presents a serious potential risk of physical injury to another," is unconstitutionally vague. See Johnson, 135 S. Ct. at 2563. Petitioner, however, was not sentenced under the ACCA. Rather, Petitioner was sentenced pursuant to the career criminal guideline United States Sentencing Guideline § 4B1.1. (PSR at ¶ 32). In United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), the Eleventh Circuit held that the Supreme Court's decision in Johnson did not apply to U.S.S.G. § 4B1.2. 1 This Court is bound by that decision. Thus, Petitioner would not be entitled to relief under Johnson. CONCLUSION Accordingly, it is therefore ORDERED AND ADJUDGED that: 1. Petitioner Colonel I. Nelson's construed Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1) is DISMISSED. 1 The United States Sentencing Commission recently adopted amendments to the guidelines which included, among other things, removal of the residual clause from U.S.S.G. § 4B1.2. The amendment becomes effective August 1, 2016. The amendment is not retroactive. 3 PageID 12 2. The Clerk is directed to terminate any pending motions and close this case. DONE and ORDERED in Tampa, Florida, this 5th day of July, 2016. Copies furnished to: Counsel/Parties of Record 4