USA v. RICHARDSON

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
UNITED STATES OF AMERICA
v. Case Nos.: 1:22cr10/AW/MAL
1:26cv61/AW/MAL
ALPHONSO COLUMBUS RICHARDSON,
Defendant.
_____________________________________/
REPORT AND RECOMMENDATION
This matter is before the Court for preliminary review of Alphonso Columbus
Richadson’s amended motion under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence. ECF No. 73. Rule 4(b) of the Rules Governing Section 2255 Proceedings
provides in part that “[i]f it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is not entitled to relief, the
judge must dismiss the motion and direct the clerk to notify the moving party.” After
reviewing the record and relevant law, the undersigned recommends that the motion
be dismissed because it is untimely. Alternatively, the motion should be denied for
lack of merit.
I. BACKGROUND
On September 20, 2022, Richardson pleaded guilty to a single count of
possession of a firearm and ammunition by a convicted felon, punishable under 18
U.S.C. § 924(e), the Armed Career Criminal Act (ACCA), by an enhanced fifteen-
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year minimum mandatory term of imprisonment. ECF Nos. 30-32, 58. The
Presentence Investigation Report shows Richardson had six1 qualifying convictions
for the ACCA enhancement (only three are needed), and his advisory guideline range
was 188 to 235 months’ imprisonment. ECF No. 41, PSR ¶¶ 27, 130, 131. On
December 6, 2022, the court overruled Richardson’s objection (which was based on
the Jackson I case discussed below) to the application of the ACCA enhancement
and sentenced him at the top of the applicable guidelines range to a term of 235
months’ imprisonment. ECF No. 59, Sentencing Transcript at 4-6, 22; ECF Nos. 45,
46, 59.
On appeal, Richardson raised two challenges to the ACCA enhancement. ECF
No. 62; United States v. Richardson, No. 22-14127, 2024 WL 3688334 (11th Cir.
2024). First, he claimed that his pre-2015 Florida cocaine offenses were not “serious
drug offenses” because he could have been convicted of offenses involving
substances that were not federally controlled when he committed the federal gun
offense. ECF No. 62 at 6. This argument was based on United States v. Jackson
(Jackson I), 36 F. 4th 1294 (11th Cir. June 10, 2022). Jackson I held that ACCA’s
1 See Final Presentence Investigation Report, ECF No. 41 at ¶ 27 (ACCA designation); ¶ 50
(2000CF3110—sale of cocaine committed on 8/17/2000,); ¶ 52 (2000CF3111—sale of cocaine
committed on 8/17/2000,); ¶ 54 (2001CF1751—sale of cocaine committed on 5/17/2001); ¶ 61
(2008CF1034—possession of cocaine with intent to sell committed on 3/6/2008,); ¶ 69
(2013CF2006—resisting an officer with violence committed on 5/14/2013); ¶ 72 (2017CF4484—
sale, manufacture, delivery or possession of a controlled substance committed on 12/10/2017).
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definition of a serious drug offense incorporates the version of the federal controlled
substances schedules in effect when the defendant committed the federal offense. Id.
The Eleventh Circuit sua sponte vacated Jackson I on September 8, 2022, even
before Richardson entered his plea. United States v. Jackson, 2022 WL 4959314
(11th Cir. Sept. 8, 2022); see ECF No. 58 at 15 (counsel referencing Eleventh
Circuit’s withdrawal of Jackson I at the change of plea hearing).
In Jackson II, the Eleventh Circuit held that the ACCA’s definition of a serious
drug offense incorporates the version of the federal controlled substance schedules
in effect when the defendant was convicted of the prior state drug offense, not when
the defendant committed the federal offense. United States v. Jackson, (“Jackson
II”), 55 F. 4th 846, 861-62 (11th Cir. Dec. 13, 2022), aff’d sub nom Brown v. United
States, 602 U.S. 101 (2024). Jackson II controlled Richardson’s appeal. Therefore,
because the drugs on the federal and state schedules matched when Richardson’s
state convictions were committed, the appellate court found his challenge to the
ACCA enhancement on that basis was foreclosed. ECF No. 62 at 7.
Richardson’s second argument on appeal was that the ACCA enhancement did
not apply to him because a conviction for the sale of cocaine under Florida law does
not categorically qualify as a serious drug offense since the statute criminalizes mere
attempts to transfer cocaine. ECF No. 62 at 7. The appellate court also found this
argument to be foreclosed by binding precedent. Id. (citing United States v. Penn, 63
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F. 4th 1305, 1310-1317 (11th Cir. 2023) (holding that Florida convictions for sale of
cocaine categorically qualify as serious drug offenses because “distribution” under
the ACCA includes attempted transfers)). The Eleventh Circuit affirmed
Richardson’s sentence on August 7, 2024.
II. DISCUSSION
A. Richardson’s motion is untimely
Title 28 U.S.C. ' 2255(f) imposes a one-year time limitation on the filing of
motions under this section. The one-year period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the petitioner was prevented from making
a motion by such governmental action;
(3) 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;
or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. ' 2255. The Eleventh Circuit affirmed Robinson’s sentence on August 7,
2024. ECF No. 62. A judgment is considered “final” for § 2255(f)(1) purposes once
the 90-day period to petition for certiorari expires, even if the defendant does not
seek certiorari. Clay v. United States, 537 U.S. 522, 533 (2003). Richardson did not
file a petition for certiorari in the United States Supreme Court, and thus his
judgment of conviction became final when his time for doing so expired (i.e., ninety
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days after the entry of the court of appeals’ judgment), in this case on November 5,
2024. 2 Clay, 537 U.S. at 533. Therefore, to have been timely filed under
§ 2255(f)(1), his § 2255 motion had to be filed no later than November 5, 2025. His
first post-conviction pleading of record, his unsigned memorandum, was filed with
the Eleventh Circuit on March 6, 2026. Therefore, his motion is facially untimely by
four months.
Richardson addressed the issue of timeliness when he filed his amended
motion. ECF No. 73 at 12. He notes the date of his appeal and claims that
“subsequent to [the Eleventh Circuit’s order affirming his sentence] this court
granted leave for extension of time to file 2255 pending transfer.” Id. Richardson is
incorrect.
The docket reflects two identical requests from Richardson filed in July 2025
for a 180-day extension of time to file his 2025 motion based on lack of access to
the law library and placement in the SHU (special housing unit). ECF Nos. 64, 65.3
The district court dismissed Richardson’s motions in a single order on August 4,
2025, finding no jurisdiction to grant an extension. ECF No. 66. Although no
extension was granted, Richardson still had until November 5, 2025, to timely file a
2 The issuance of the mandate, on September 5, 2024 (ECF No. 63), has no bearing on when
the time expires for filing a petition for certiorari. Clay v. United States, 537 U.S. 522, 525 (2008).
3 One copy of the motion for extension of time was mailed to the Clerk and one was mailed to
the assistant federal public defender, who apparently forwarded the motion to the Clerk. ECF Nos.
64, 65.
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§ 2255 motion.
Richardson claims he sent a § 2255 motion “to this court on line paper,” and
shortly thereafter he filed a supplemental brief. ECF No. 73 at 12. The supplemental
brief he references was filed with the Eleventh Circuit on March 6, 2026, and
transferred to this court. ECF No. 69. There is no record in either this Court or the
Eleventh Circuit of a § 2255 motion “on line paper.” See ECCA Case No. 26-10756.
The unsigned supplemental brief, as noted above, was untimely by four months.
Richardson has not alleged extraordinary circumstances and due diligence to
excuse the untimely filing. Richardson’s erroneous reading of the district court’s
order that did not grant him an extension of time to file his § 2255 motion is not an
extraordinary circumstance. Nor do the circumstances underlying his request for an
extension (lack of access to the law library and housing in the SHU) justify equitable
tolling of the statute of limitations. Clemons v. Comm’r, Al. Dep’t of Corr., 937 F. 3d
1231, 1241 (11th Cir. 2020) (holding that equitable tolling is appropriate when a
§ 2255 motion is untimely because of “extraordinary circumstances that are both
beyond [the defendant’s] control and unavoidable even with diligence.”), Miller v.
Florida, 307 F. App’x 366, 368 (11th Cir. 2009) (“[E]ven restricted access to a law
library, lock-downs, and solitary confinement do not qualify as extraordinary
circumstances warranting equitable tolling.”). Therefore, his motion should be
dismissed as untimely.
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B. Richardson’s claims are substantively without merit
1. Ground One
In Richardson’s first ground for relief, he claims his guilty plea was
“unknowing, involuntary and unintelligently made as it was the result of the
erroneous advice of counsel.” ECF No. 73 at 4. He specifically contends counsel
“failed to explain the consequences of his guilty plea--(ACCA Designation).” Id.
The record disproves his claim.
It is clear from the exchange between Richardson, counsel, and the court at
his change of plea hearing that Richardson understood the difference between a
sentence with the ACCA enhancement and one without. ECF No. 58 at 13-14. The
court highlighted the difference between the maximum ten-year sentence
Richardson faced for an un-enhanced conviction versus a fifteen-year minimum
mandatory sentence if the enhancement applied. Id. at 13. Richardson also
understood that the outcome in the Jackson case (supra) would affect whether he
would be subject to the ACCA enhancement. Id. at 14-15. Counsel stated, in his
client’s presence, that Richardson currently qualified for the enhancement due to the
withdrawal of Jackson I. Id. at 15. Richardson assured the court under oath, more
than once, that he understood there was the possibility his sentence would be
enhanced. Id. at 16-17. The court told him it could not predict whether he would
qualify for the enhancement and specifically stated it did not want Richardson to say
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at sentencing “I thought I could only get ten years, or I thought I wasn’t going to be
enhanced” because, as the court stated: “There is that possibility.” Id. Richardson
affirmed his understanding. Id. at 17.
Based on the transcript of the change of plea hearing, Richardson was well-
informed of the possibility he would be subject to an ACCA enhancement when he
entered his plea. He has not shown counsel’s performance was deficient or that he
was prejudiced by any alleged lack of information about the ACCA enhancement.
Strickland v. Washington, 466 U.S. 668, 687 (1984) (a successful claim of ineffective
assistance of counsel requires a defendant to show deficient performance by counsel
and prejudice to the defense).
2. Ground Two
In Ground Two, Richardson claims counsel should have challenged his ACCA
enhancement on grounds that the Government (1) did not prove he had three
qualifying priors committed on separate occasions and (2) did not produce any
Shepard approved documents to prove his cocaine convictions were serious drug
offenses. ECF No. 73 at 5. This claim is without merit.
In the Statement of Facts supporting his guilty plea, Richardson admitted that
he committed his qualifying offenses on separate occasions over the span of several
years (2000, 2001, 2008, 2013, 2017). ECF No. 31 at 8. The offenses were also
described in the Presentence Investigation Report. ECF No. 41 at ¶¶ 27, 50, 52, 54,
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61, 69, 72. Richardson has offered nothing to explain what additional proof was
needed or how any challenge to his ACCA designation would have been successful.
See Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001) (“The petitioner bears
the burden of proof on the ‘performance’ prong as well as the ‘prejudice’ prong of a
Strickland claim, and both prongs must be proved to prevail.”). Bare, conclusory
allegations of ineffective assistance are insufficient to satisfy the Strickland test. See
Boyd v. Comm’r, Ala. Dep’t of Corr., 697 F.3d 1320, 1333-34 (11th Cir. 2012).
Furthermore, the Eleventh Circuit decided on appeal that Richardson’s
cocaine convictions qualified as serious drug offenses under the ACCA. ECF No.
62. Richardson cannot relitigate this issue in his § 2255 motion. Seabrooks v. United
States, 32 F. 4th 1375, 1383 (11th Cir. 2022) (a defendant is procedurally barred
from rearguing issues in his § 2255 motion that were decided against him on appeal).
3. Ground Three
Richardson’s third claim is that defense counsel was ineffective because he
allowed Richardson’s sentence to be enhanced based on allegations that were “not
submitted to jury/reasonable doubt.” ECF No. 73 at 7. He says counsel should have
objected to the district court’s finding that the ACCA applied, citing Supreme Court
precedent which, he contends, holds that “any fact that increases the statutory
minimum or maximum must be submitted to a jury and proven beyond a reasonable
doubt.” Id. Richardson argues had counsel objected, he “would have been sentenced
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to no more than ten years.” Id. Richardson is not entitled to relief on this ground
because he misconstrues the holdings of the cases he cites, Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) and Alleyne v. United States, 570 U.S. 99, 116 (2013).
The Supreme Court held in Apprendi that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 490 (emphasis added). Thirteen years later the Court
held in Alleyne that facts that increase mandatory minimum sentences must be
submitted to the jury. Alleyne, 570 U.S. at 116. However, the Alleyne Court expressly
noted that its holding did not disturb a previous ruling which held that the fact of a
prior conviction is not an “element” that must be found by a jury. Alleyne, 570 U.S.
at 111, n. 1 (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)).
At the time of Richardson’s sentencing, there was binding Eleventh Circuit
precedent holding that judicial determination of whether prior convictions were
committed on different occasions from one another for purposes of the ACCA did
not violate a defendant’s Fifth and Sixth Amendment rights. See United States v.
Dudley, 5 F. 4th 1249, 1260 (11th Cir. 2021). Defense counsel was not ineffective
for proceeding in accordance with the existing law of the circuit. See Dell v. United
States, 710 F.3d 1267, 1282 (the objective standard of reasonableness for counsel’s
performance does not require counsel to predict changes in law).
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The Supreme Court subsequently held that whether a defendant’s past
offenses occurred on three or more separate occasions is a fact that increases the
prescribed range of penalties, and a defendant has a right to a unanimous jury
determination of this fact. Erlinger v. United States, 602 U.S. 821, 834 (2024).
Absent a jury determination, a defendant must freely admit this fact in a guilty plea.
Id.
The new rule in Erlinger does not apply to Richardson because Erlinger is not
retroactive to cases on collateral review. See Erlinger, 602 U.S. 821, 859 n.3 (2024)
(Kavanaugh, J., dissenting) (“For any case that is already final, the Teague [v. Lane,
489 U.S. 288 (1989),] rule will presumably bar the defendant from raising
[Erlinger’s] new rule in collateral proceedings.”); Grant v. United States, No. 8:24-
CV-02029-WFJ-CPT, 2024 WL 4729193, at *3-4 (M.D. Fla. Nov. 8, 2024) (applying
Teague test and finding Erlinger does not apply retroactively to cases on collateral
review). Moreover, as noted previously, in the Statement of Facts supporting his
guilty plea, Richardson admitted that he committed his qualifying offenses on
separate occasions. ECF No. 31 at 8.
Richardson has not shown any deficient performance by counsel or prejudice
regarding application of the ACCA sentencing enhancement in his case.
4. Ground Four
Richardson’s fourth ground is that his conviction under 18 U.S.C. § 922(g) is
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unconstitutional in light of New York Rifle and Pistol Association v Bruen, 597 U.S.
1 (2022). ECF No. 73 at 8. He appears to contend that, despite his criminal history,
he should not be subject to restrictions on gun possession. His claim is barred by
binding circuit precedent post-Bruen upholding the constitutionality of the federal
prohibition on felons possessing firearms. See United States v. Dubois, 139 F. 4th
887 (11th Cir. 2025). In apparent recognition of this, Richardson states that he raises
this issue “in an abundance of caution of any future changes in law.” ECF No. 73 at
8. No relief is warranted on this claim.
III. CONCLUSION
Based on the foregoing, “it plainly appears from the motion, any attached
exhibits, and the record of prior proceedings that the moving party is not entitled to
relief.” Rule 4(b) of the Rules Governing Section 2255 Proceedings. Therefore, the
amended § 2255 motion should be summarily dismissed as untimely. Alternatively,
it should be denied on the merits, as none of the claims Richardson presents warrant
relief.
IV. CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that
A[t]he district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant,@ and if a certificate is issued Athe court must state
the specific issue or issues that satisfy the showing required by 28 U.S.C.
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' 2253(c)(2).@ A timely notice of appeal must still be filed, even if the court issues a
certificate of appealability. Rule 11(b), ' 2255 Rules.
After review of the record, the court finds no substantial showing of the denial
of a constitutional right. ' 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483B84
(2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is
also recommended that the court deny a certificate of appealability in its final order.
The second sentence of Rule 11(a) provides: ABefore entering the final order,
the court may direct the parties to submit arguments on whether a certificate should
issue.@ If there is an objection to this recommendation by either party, that party may
bring this argument to the attention of the district judge in the objections permitted
to this report and recommendation.
Based on the foregoing, it is respectfully RECOMMENDED:
1. The amended motion under § 2255 to vacate, set aside, or correct
sentence (ECF No. 73) be summarily DISMISSED as untimely, and alternatively
denied on the merits.
2. A certificate of appealability be DENIED.
DONE on April 24, 2026.
s/ Midori A. Lowry
Midori A. Lowry
United States Magistrate Judge
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NOTICE TO THE PARTIES
The case was referred to a magistrate judge for the issuance of all preliminary
orders and any recommendations to the district court regarding dispositive matters.
See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
Objections to these proposed findings and recommendations must be filed within
fourteen days of the date of the Report and Recommendation. Any different deadline
that may appear on the electronic docket is for the court’s internal use only and does
not control. An objecting party must serve a copy of its objections on all other
parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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