GREGORY A. PRESNELL, District Judge.
This cause is before the Court on the Motion to Vacate, Set Aside, or Correct Sentence ("Motion to Vacate," Doc. 1) filed by Petitioner pursuant to 28 U.S.C. § 2255. Petitioner also filed a supporting Memorandum of Law (Doc. 2). The Government filed a Response (Doc. 7) in opposition to the Motion to Vacate. Petitioner filed a Reply (Doc. 10) to the Response. For the reasons set forth herein, the Motion to Vacate is denied.
I. PROCEDURAL BACKGROUND
A Grand Jury charged Petitioner in a three count Indictment with the commission of various crimes. (Criminal Case 6:10-cr-193-31DCI, Doc. 1).
The Motion to Vacate is subject to dismissal because it was not timely filed under the one-year period of limitation set forth in section 2255. In the present case, the Eleventh Circuit Court of Appeals affirmed Petitioner's convictions and sentences on January 30, 2013. (Criminal Case Doc. 161). The United States Supreme Court denied Petitioner's petition for a writ of certiorari on April 1, 2013. (Criminal Case Doc. 163). Thus, the judgment of conviction became final on April 1, 2013. As result, Petitioner had until April 1, 2014, to file a section 2255 motion. The Motion to Vacate was filed on June 24, 2016, long after the one-year period of limitation expired.
Petitioner argues that the Motion to Vacate is timely because "
The decision in Johnson affords Petitioner no collateral relief with regard to his § 924(c) conviction. The Johnson decision did not address the statute under which Petitioner was convicted. Instead, Johnson ruled on the constitutionality of the residual clause of the ACCA, § 924(e)(2)(B)(ii). Neither the Supreme Court nor the Eleventh Circuit Court of Appeals "has extended Johnson's § 924(e) residual clause ruling to conclude that the § 924(c)(3)(B) residual clause is unconstitutionally vague." United States v. Langston, No. 16-10689, 2016 WL 6276044, at *6 (11th Cir. October 27, 2016). Consequently, the Motion to Vacate was untimely, and Petitioner is unable to satisfy the exception to the one-year period of limitation in 28 U.S.C. § 2255(f)(3). As a result, the Motion to Vacate is denied.
III. CERTIFICATE OF APPEALABILITY
This Court should grant an application for a certificate of appealability only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec'y, Dep't of Corr., 568 F.3d 929, 934 (11th Cir. 2009). However, the petitioner need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).
Petitioner fails to demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot show that jurists of reason would find this Court's procedural rulings debatable. Petitioner fails to make a substantial showing of the denial of a constitutional right. Thus, the Court will deny Petitioner a certificate of appealability.
Accordingly, it is
1. The Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1) is
2. This case is
3. Petitioner is
4. The Clerk of the Court is directed to enter judgment in favor of Respondent and to close this case. A copy of this Order and the judgment shall also be filed in criminal case number 6:10-cr-193-Orl-31DCI.
5. The Clerk of the Court is directed to terminate the section 2255 motion (Criminal Case Doc. 167) filed in criminal case number 6:10-cr-193-Orl-31DCI.