USA v. White

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ALEX WHITE, 	:
Petitioner, 	:
CIVIL ACTION 16-00365-KD-M
v. 	:
CRIMINAL ACTION 15-00138-KD-M
UNITED STATES OF AMERICA, 	:
Respondent. 	:
REPORT AND RECOMMENDATION
Pending before the Court is Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 50).
This action was referred to the undersigned Magistrate Judge for
report and recommendation pursuant to 28 U.S.C. § 636(b) and
Rule 8(b) of the Rules Governing Section 2255 Cases. 	It is now
ready for consideration. 	The record is adequate to dispose of
this matter; no evidentiary hearing is required. 	It is
recommended that Petitioner’s Motion to Vacate (Doc. 50) be
denied, that this action be dismissed, and that judgment be
entered in favor of Respondent, the United States of America,
and against Petitioner Alex White. 	It is further recommended
that any certificate of appealability filed by Petitioner be
denied as he is not entitled to appeal in forma pauperis.
White was indicted on June 25, 2015 for two counts of
possession with intent to distribute a controlled substance in
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violation of 21 U.S.C. § 841(a)(1) (Counts 1-2), possessing a
firearm as a felon in violation of 18 U.S.C. § 922(g)(1) (Count
3), and using, carrying, or possession a firearm during or in
relation to or in furtherance of a drug trafficking felony in
violation of 18 U.S.C. § 924(c)(1) (Count 4) (Doc. 1). 	On
October 30, 2015, White entered into a Plea Agreement in which
he pled guilty to Counts 2 and 4 (Doc. 37). 	United States
District Court Judge DuBose accepted Plaintiff’s plea and found
him guilty (see Doc. 36). 	On March 11, 2016, Judge DuBose
sentenced Petitioner to the following: 	on Count 2, six months
imprisonment, three years of supervised release following his
prison term, and an assessment of one hundred dollars; and on
Count 4, seven years in prison, to run consecutive to the six-
month sentence in Count 2, five years of supervised release, to
run concurrent with the three-year sentence in Count 2, and a
one hundred dollar assessment (see Doc. 48). 	Counts 1 and 3
were dismissed (Doc. 48). 	White did not appeal his conviction
or sentence (see Doc. 47).
Petitioner filed his Motion to Vacate on July 8, 2016,
claiming he was improperly sentenced under the language of a
United States Supreme Court decision, Johnson v. United States,
576 U.S. ---, 135 S.Ct. 2551, 2557-58, 2563 (2015) (Doc. 50).
White specifically claims that his firearm conviction does not
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qualify as a “crime of violence” for purposes of sentencing
enhancement (Doc. 50). 	Respondent filed a response on September
9, 2016 asserting that this claim was without merit (Doc. 53).
Though given the opportunity to reply to the response, as of
this date, White has not done so (see Doc. 52).
Before taking up Petitioner’s claim, the Court notes that
the Anti-Terrorism and Effective Death Penalty Act of 1996
(hereinafter AEDPA) amended, in pertinent part, 28 U.S.C. §
2255, to state as follows:
A prisoner in custody under sentence of a
court established by Act of congress
claiming the right to be released upon the
ground that the sentence was imposed in
violation of the Constitution or laws of the
United States, or that the court was without
jurisdiction to impose such sentence, or
that the sentence was in excess of the
maximum authorized by law, or is otherwise
subject to collateral attack, may move the
court which imposed the sentence to vacate,
set aside or correct the sentence.
***
A 1-year period of limitation shall apply to
a motion under this section. 	The limitation
period shall run from the latest of . . .
the date on which the right asserted was
initially recognized by the Supreme Court,
if that right has been newly recognized by
the Supreme Court and made retroactively
applicable to cases on collateral review.
28 U.S.C. § 2255(f)(3).
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Johnson, the decision on which White relies, was entered on
June 26, 2015. 	The AEDPA limitations clock began running that
day. 	Dodd v. United States, 545 U.S. 353, 357 (2005) (“What
Congress has said in ¶ [(f)(3)] is clear: 	An applicant has one
year from the date on which the right he asserts was initially
recognized by this Court”). 	White filed this action on July 8,
2016, so even if Johnson is applicable here, this action was not
timely filed and is barred under AEDPA. 	Nevertheless, the Court
will proceed to Petitioner’s claim.
White seeks resentencing under Johnson. 	Our Circuit’s
Appellate Court, in In re Hines, explained Johnson this way:
In Johnson, the Supreme Court held that
the residual clause of the [Armed Career
Criminal Act (hereinafter ACCA)] is
unconstitutionally vague because it creates
uncertainty about how to evaluate the risks
posed by a crime and how much risk it takes
to qualify as a violent felony. 	Johnson,
576 U.S. at ---, ---, 135 S.Ct. 2551, at
2557-58, 2563. 	The Supreme Court made clear
that its holding that the residual clause is
void did not call into question the validity
of the elements clause and the enumerated
crimes of the ACCA’s definition of a violent
felony. 	Id. at ---, 135 S.Ct. at 2563. 	In
Welch v. United States, 578 U.S. ---, 136
S.Ct. 1257, 194 L.Ed.2d 387 (2016), the
Supreme Court held that Johnson announced a
new substantive rule of constitutional law
that applies retroactively to cases on
collateral review.
In re Hines, 824 F.3d 1334, 1335-36 (11th Cir. 2016).
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White claims that he was improperly sentenced in Count 4
because 18 U.S.C. § 924(c)(1)(A), containing the phrase “crime
of violence,” is akin to the language of 18 U.S.C. §
924(e)(2)(B)(ii), criminalizing “conduct that presents a serious
potential risk of physical injury to another,” that was
overturned in Johnson (Doc. 50).
The Court finds that Petitioner’s argument is misplaced.
The statute under which White was sentenced states as follows:
[A]ny person who, during and in relation to
any crime of violence or drug trafficking
crime [] for which the person may be
prosecuted in a court of the United States,
uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the
punishment provided for such crime of
violence or drug trafficking crime . . . if
the firearm is brandished, be sentenced to a
term of imprisonment of not less than 7
years.
18 U.S.C. § 924(c)(1)(A). 	Here, White was convicted and
sentenced for possession of a weapon in furtherance of a drug
trafficking crime—not because he had committed a crime of
violence. 	Johnson is not applicable here. 	Petitioner’s claim
otherwise is without merit.
White has raised one claim in this petition. 	That claim is
without merit and is barred by the AEDPA one-year limitations
period. 	Therefore, it is recommended that the petition be
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denied (Doc. 50), that this action be dismissed, and that
judgment be entered in favor of Respondent, the United States of
America, and against Petitioner, Alex White.
Furthermore, pursuant to Rule 11(a) of the Rules Governing
§ 2255 Cases, the undersigned recommends that a certificate of
appealability (hereinafter COA) be denied. 	28 U.S.C. foll. §
2255, Rule 11(a) (“The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant”). 	The habeas corpus statute makes
clear that an applicant is entitled to appeal a district court’s
denial of his petition only where a circuit justice or judge
issues a COA. 	28 U.S.C. § 2253(c)(1). 	A COA may issue only
where “the applicant has made a substantial showing of the
denial of a constitutional right.” 	28 U.S.C. § 2253(c)(2).
When the merits of a claim are reached, a COA should issue only
when the petitioner demonstrates "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). 	Where a habeas petition is denied on procedural
grounds, “a COA should issue [only] when the prisoner shows . .
. that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether
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the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484.
As White filed this action beyond AEDPA’s one-year
limitations period, a reasonable jurist could not conclude that
this Court errs in dismissing this petition or that he should be
allowed to proceed further. 	Slack, 529 U.S. at 484 (“Where a
plain procedural bar is present and the district court is
correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed
to proceed further”). 	Furthermore, as the Court has found that
Petitioner failed to assert sufficient facts to support a claim
of constitutional error, “[t]he petitioner must demonstrate that
reasonable jurists would find the district court's assessment of
the constitutional claims debatable or wrong.” 	Slack, 529 U.S.
at 484. 	It is suggested that White will not be able to make
that showing.
CONCLUSION
It is recommended that Petitioner’s Motion to Vacate be
denied (Doc. 50), that this action be dismissed, and that
judgment be entered in favor of Respondent, the United States of
America, and against Petitioner, Alex White. 	It is further
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recommended that any certificate of appealability filed by
Petitioner be denied as he is not entitled to appeal in forma
pauperis.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on
all parties in the manner provided by law. 	Any party who
objects to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document, file
specific written objections with the Clerk of this Court. 	See
28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4.
In order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state the
basis for the objection, and specify the place in the Magistrate
Judge’s report and recommendation where the disputed
determination is found. 	An objection that merely incorporates
by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE this 20th day of October, 2016.
s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE
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