SHARON LOVELACE BLACKBURN, Senior District Judge.
This case is presently pending before the court on Motion Pursuant to 28 U.S.C. §1651
In August 2012, petitioner Jermaine Hall was indicted on three counts of "knowingly, intentionally, and unlawfully distribut[ing] a mixture and substance containing a detectable amount of heroin, a controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(C)." (Crim. doc. 6.) He subsequently agreed to plead guilty to all counts. (Crim. doc. 11 at 1 [sealed].) The court accepted his plea, finding it freely and voluntarily entered. (Crim. doc. 21 at 16.)
The Probation Office prepared a Presentence Investigation Report [hereinafter "the Report"]. (Doc. 1-1.) The Report indicated two prior convictions for "controlled substance offenses." (Id. at 4-5, 24 [citing U.S.S.G. § 4B1.1].) At sentencing, the court found, inter alia, that Hall's prior state-court conviction for first degree marijuana possession other than for personal use
The court sentenced Hall to a term of imprisonment of 151 months on each of the three Counts of the Indictment, with the sentences to be served concurrently. (Crim. doc. 17 at 2.) Judgment was entered on August 9, 2013. (Id. at 1.) Hall did not appeal.
On April 20, 2015, Hall filed a Motion to Reduce Sentence, (crim. doc. 19), and a Motion to Vacate, (crim. doc. 20; doc. 1). The Government moved to dismiss his Motion to Vacate as untimely. (Doc. 4.) Thereafter, Hall filed a Response to the Motion to Dismiss and an Amended Motion to Vacate, alleging a Johnson claim.
A. MOTION TO REDUCE SENTENCE
Hall has filed a motion, pursuant to 18 U.S.C. § 3582(c)(2), seeking to reduce his sentence based on retroactive changes to the Sentencing Guidelines, specifically Amendment 782. He "bears the burden of demonstrating that a retroactive Amendment has actually lowered his guideline range." United States v. Tellis, 748 F.3d 1305, 1308 (11th Cir. 2014)(citing United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013)).
Section § 3582(c)(2) states:
18 U.S.C. § 3582(c)(2)(footnote added). In its policy statement, the Sentencing Commission has stated, "A reduction in the defendant's term of imprisonment is not consistent with this policy statement[,] and therefore is
Id. (b)(1)(emphasis added). Thus, for this court to be authorized to reduce Hall's sentence pursuant to § 3582(c)(2), it must first determine whether Amendment 782 had the effect of lowering his Sentencing Guidelines range. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000)("In undertaking this first step, only the amended guideline is changed. All other guideline application decisions made during the original sentencing remain intact.")(citing United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998)(citing U.S.S.G. § 1B1.10 (b), comment n.2))
Applying the Sentencing Guidelines currently in effect, considering the changes in Chapter 2 (Offense Conduct) calculations in light of Amendment 782, the court finds Base Offense Level is 22; prior to the Amendments, the Base Offense Level was 24. The Amendment did not affect any other finding of the Report; specifically, the Amendment did not affect the calculation of Hall's career-offender enhanced sentence. United States v. Cockett, 655 Fed. Appx. 800, 801 (11th Cir. 2016)("Amendment 782 — which is listed in § 1B1.10(d) — therefore may serve as the basis for a sentence reduction. Id. § 1B1.10(d)." However, §3582(c)(2) only authorizes a reduction to sentences that were `based on' sentencing ranges that were subsequently lowered. . . . [B]ecause the defendants . . . were sentenced as career offenders under § 4B1.1, they were ineligible for relief, since only their base offense levels, but not their guideline ranges, were impacted by the retroactive guideline amendment." (citing United States v. Moore, 541 F.3d 1323, 1327-30 (11th Cir. 2008))).
The maximum statutory penalty under § 841(b)(1)(C) is 20 years; therefore, Hall's Guidelines Offense Level as a career offender is, and at the time of sentencing was, 32. U.S.S.G. § 4B1.1(b)(1). With a 3-level reduction for acceptance of responsibility, his offense level is, and at the time of sentencing was, 29. As a career offender, Hall's criminal history category is, and at the time of sentencing was, VI. Therefore, the Sentencing Guidelines range for imprisonment is, and at the time of sentencing was, 151 to 188 months. See U.S.S.G. Ch. 5, Pt. A.
Amendment 782 did not change the calculation of Hall's Guidelines range due to his status as a career offender. Therefore, the court has no authority to reduce Hall's sentence pursuant to § 3582(c)(2). His Motion to Reduce Sentence, (crim. doc. 19), will be denied.
B. MOTIONS TO VACATE
In his Motion to Vacate, Hall contends:
(Doc. 1 at 5.) Hall contends that his Motion to Vacate is timely based on "newly discovered evidence of recent Supreme Court decisions altering [the] sentencing process." (Id. at 7.) The Government has moved to dismiss his petition as untimely filed. (Doc. 4.) After the Government moved to dismiss his Motion to Vacate, Hall filed his Amended Motion to Vacate. (Doc. 6.)
1. Motion to Vacate Based on Newly Discovered Evidence, (doc. 1) and Motion to Dismiss, (doc. 4).
The Government alleges that Hall untimely filed his Motion to Vacate. Section 2255(f) states, "A 1-year period of limitation shall apply to a motion under [§ 2255]. 28 U.S.C. § 2255(f). It also states:
The limitation period shall run from the latest of —
28 U.S.C. § 2255(f)(1)-(4). Hall contends his Motion to Vacate is based on "newly discovered" Supreme Court cases of Alleyne v. United States, 133 S.Ct. 2151 (2013), and Descamps v. United States, 133 S.Ct. 2276 (2013), and, thus, his Motion is timely under §2255(f)(4). (Doc. 1 at 5-7, 9.)
"Since Section 2255(f)(4) is predicated on the date that "facts supporting the claim" could have been discovered, the discovery of a new court legal opinion, as opposed to new factual information affecting the claim, does not trigger the limitations period." Madaio v. United States, 397 Fed. Appx. 568, 570 (11th Cir. 2010)(emphasis in original). Therefore "a court decision in a case not involving the petitioner [does not] constitute a `fact' for purposes of § 2255(f)(4)." Newman v. United States, No. 2:11CV884-MHT, 2014 WL 1047113, at *3 n.13 (M.D. Ala. Mar. 18, 2014)(citing Madaio, 397 Fed. Appx. at 569-70; E.J.R.E. v. United States, 453 F.3d 1094, 1098 (8th Cir.2006)).
Also, the Eleventh Circuit has held that "neither Alleyne nor Descamps apply retroactively on collateral review." King v. United States, 610 Fed. Appx. 825, 829 (11th Cir.), cert. denied, 136 S.Ct. 349 (2015). Therefore, Hall's Motion to Vacate was not timely filed under § 2255(f)(3). Id.
The court entered its Judgment in Hall's criminal case on August 9, 2013. (Crim. doc. 17.) Hall did not appeal; therefore, the judgment became final on August 23, 2013. See Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011)("[W]hen a defendant does not appeal his conviction or sentence, the judgment of conviction becomes final when the time for seeking that review expires." (citing Mederos v. United States, 218 F.3d 1252, 1253 (11th Cir. 2000); Akins v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir.2000))). Therefore, pursuant to § 2255(f)(1), Hall had until August 23, 2014, to file a Motion to Vacate pursuant to § 2255. His Motion to Vacate is deemed to have been filed on April 2, 2015. Therefore, his Motion to Vacate was not timely filed.
2. Amended Motion to Vacate —
Johnson v. United States, (doc. 6).
In response to the Government's Motion to Dismiss, the court issued a Order, giving Hall until October 31, 2016, to file his opposition to the Motion to Dismiss. (Doc. 5.) On that date, the court received an envelope both containing Hall's Response to the court's Order, (doc. 7), and his Amended Motion to Vacate, (doc. 6). The Certificate of Service on Hall's Response is dated October 17, 2016; the Certificate of Service for his Amended Motion is dated June 14, 2016.
"Under the `prison mailbox rule,' [a motion to vacate filed by a prisoner proceeding pro se] is deemed filed on the day it was signed and delivered to prison authorities for mailing. In the absence of other evidence, it is assumed that a § 2255 motion was presented for mailing on the date it is signed." Askew v. United States, No. 1:08-CR-204-LSC-TMP, 2014 WL 1233686, *1 n.1 (N.D. Ala. Mar. 25, 2014)(citing Houston v. Lack, 487 U.S. 266 (1988); Washington v. United States, 243 F.3d 1299 (11th Cir.2001))(internal citations omitted); see also Jeffries v. United States, 748 F.3d 1310, 1315 (11th Cir. 2014).
The envelope containing both the Amended Motion to Vacate and the Response indicates that the prison placed the envelope in the mail on October 20, 2016. Hall signed the two documents in the single envelope with grossly disparate dates: (1) the Amended Motion to Vacate is dated June 14, 2016, and (2) the Response to the Government's Motion to Dismiss is dated October 17, 2016. The court also notes that, pursuant to § 2255(f)(3), Hall had until June 27, 2016, to raise a Johnson claim;
Nevertheless, even if the court were to deem the Amended Motion to Vacate to be timely, Johnson provides no ground for granting Hall the relief he requests. The Eleventh Circuit "has held that Johnson does not apply to sentences that were based on USSG §4B1.1." In re Clayton, 829 F.3d 1254, 1256 (11th Cir. 2016)(citing United States v. Matchett, 802 F.3d 1185, 1196 (11th Cir. 2015)). Moreover, even if Johnson were applicable to the Sentencing Guidelines, Hall's sentence, as a career offender based on his prior convictions for controlled substance offenses, "is not even arguably affected by Johnson's holding regarding the ACCA's residual-clause definition of a violent felony." In re Williams, 826 F.3d 1351, 1356 (11th Cir. 2016); see also Gowdy v. United States, No. 7:16-CV-8023-KOB, 2016 WL 7325711, *2 (N.D. Ala. Dec. 16, 2016)("[E]ven if Johnson were to arguably impact the definition of a `crime of violence' under that residual clause [of the Sentencing Guidelines], that impact would have no bearing on Mr. Gowdy's case because his conviction did not in any way involve a crime of violence. Mr. Gowdy's career offender status was based on three prior `controlled substance offenses.'")(emphasis in original).
Also, the Eleventh Circuit has held that a conviction under Alabama law for possession of marijuana for other than personal use, Ala. Code § 13A-12-213(a)(1), is a controlled substance offense for purposes of the Sentencing Guidelines for a career offender:
United States v. Craig, 520 Fed. Appx. 906, 908-09 (11th Cir. 2013)(emphasis added).
The court finds Hall's prior conviction for first degree possession of marijuana for other than personal use is a "controlled substance offense," under the Sentencing Guidelines, and that Johnson is inapplicable. Thus, even if Hall had timely filed a Johnson claim, the court's review of his Amended Motion to Vacate and the files and records of his case conclusively show that he is not entitled to relief from his conviction and sentence. See 28 U.S.C. § 2255(b).
Based on the foregoing, the court finds that Hall's Amended Motion to Vacate is due to be denied and his Petition dismissed without further notice to the Government.
For the foregoing reasons, the court is of the opinion that Hall's Motion to Vacate and his Amended Motion to Vacate are untimely and without merit, and that he is not eligible for a reduction in his sentence based on Amendment 782 to the Sentencing Guidelines. An Order granting the Government's Motion to Dismiss, (doc. 4), denying Hall's Motion to Vacate, (crim doc. 20; doc. 1), his Amended Motion to Vacate, (doc. 6), and his Motion to Reduce Sentence, (crim. doc. 19), will be entered contemporaneously with this Memorandum Opinion.
CERTIFICATE OF APPEALABILITY
Rule 11 of the Rules Governing § 2255 Proceedings, provides, "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The applicant for § 2255 relief "cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1). And, the "certificate of appealability may issue . . .
Hall is not entitled to habeas relief; reasonable jurists could not disagree. He has not demonstrated that the issues he raises are reasonably debatable and/or deserve encouragement to proceed further. Therefore, issuance of a certificate of appealability is not warranted in this case.
28 U.S.C. § 994(o).