USA v. Harris et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
NANCE RAY HARRIS, 	)
)
Petitioner, 	)
) 	CIVIL ACTION NO. 16 0020 WS MU
v. 	)
) 	CRIM. ACTION NO. 07 0019 WS MU
UNITED STATES OF AMERICA, 	)
)
Respondent. 	)
REPORT AND RECOMMENDATION
This cause is before the Court on Petitioner’s motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255 (Doc. 49), the Government’s motion to dismiss (Doc.
53), the Government’s renewed motion to dismiss (Doc. 61), and Petitioner’s replies thereto
(Docs. 55, 63). This action has been referred to the undersigned for entry of a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. LR 72(a)(2)(R).
Following consideration of all relevant filings, it is recommended that the motion to dismiss filed
by the United States be GRANTED and that Harris’s § 2255 motion be DISMISSED as time
barred pursuant to 28 U.S.C. § 2255(f).
BACKGROUND
On April 12, 2007, Harris pled guilty to Counts Two and Four of an indictment
charging the offense of possession of a stolen firearm and felon in possession of a
firearm in violation of Title 18, United States Code Sections 922(j) and 922(g)(1),
respectively. (Doc. 32). On July 19, 2007, Harris was sentenced to a term of 210
months in prison, and a judgment of conviction was entered on August 6, 2007. (Doc.
45). Harris did not file a direct appeal. On January 11, 2016, Harris filed a motion

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pursuant to 28 U.S.C. § 2255 requesting that he be resentenced without application of
the career offender provision. (Doc. 49 at p. 12). On May 17, 2016, the Government
filed a motion to dismiss Harris’s § 2255 motion on the grounds that it was time barred
and barred by his plea agreement’s collateral attack waiver. (Doc. 53). On May 18,
2016, the Court ordered Harris to show cause why his motion should not be dismissed
as time barred. (Doc. 54). Harris filed his response to that order on June 10, 2016.
(Doc. 55). Shortly thereafter, this action was stayed pending decisions in similar cases
before the Eleventh Circuit and the United States Supreme Court. (Doc. 57). After
these decisions were rendered, the Government filed a renewed motion to dismiss
Harris’s § 2255 motion on the ground that it is time barred. (Doc. 61). Harris filed a
response in opposition to the Government’s renewed motion on June 13, 2017. (Doc.
63). This matter is now ripe for determination.
CONCLUSIONS OF LAW
In his motion to vacate, filed January 11, 2016, Harris contends that, in light of the
holding in Johnson v. United States, 135 S. Ct. 2551 (2015), he is entitled to resentencing
because his prior Alabama burglary third convictions, which gave rise to his career offender
sentence under U.S.S.G. § 4B1.2, have been invalidated by the holding in Johnson. In
Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act
(“ACCA”), set forth in 18 U.S.C § 924(e), was unconstitutional. 135 S. Ct. at 2557 58.1 Harris
argues in support of his motion that the Johnson holding should be extended to invalidate the
residual clause in the Sentencing Guidelines. (Doc. 55). Because Harris filed his motion to
1 Johnson was determined to be retroactive to cases on collateral review in Welch v. United States, 136
S. Ct. 1257 (2016).

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vacate more than eight years after his judgment of conviction became final, the Government
moved to dismiss his § 2255 motion on the ground that it is time barred. (Doc. 53).
The Anti Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) was enacted on
April 24, 1996 and, pertinent to this case, added a new subdivision to 28 U.S.C. § 2255
providing for a one year period of limitations within which federal prisoners must file their
motions to vacate pursuant to 28 U.S.C. § 2255. Akins v. United States, 204 F.3d 1086, 1089
(11th Cir.), cert. denied, 531 U.S. 971 (2000). Section 2255(f) provides:
A 1 year period of limitation shall apply to a motion under this section. The
limitation period shall run 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 movant 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 the 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(f). In this case, Harris did not file a direct appeal (see Docket Sheet) and,
therefore, his conviction and sentence became final ten (10) days after this Court entered the
judgment on August 6, 2007, that is, on August 16, 2007, the date on which the time for filing a
notice of appeal expired. Akins, 204 F.3d at 1089, n.1 (noting that when a defendant does not
pursue a direct appeal, the conviction becomes final when the time expires for filing a direct
appeal). Thus, Harris’s one year limitations period for filing his § 2255 motion began running
on August 16, 2007 and expired on August 16, 2008. Because he did not file his motion to

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vacate his sentence until January 11, 2016, more than seven years after the expiration of the
limitations period, his motion is clearly time barred under § 2255(f)(1).
While Harris acknowledges that his § 2255 motion was filed more than one year after
his conviction became final, he argues that it was timely filed pursuant to § 2255(f)(3) because
he filed it within one year of the Supreme Court’s decisions in Johnson and Welch. Harris’s
argument is without merit. In Beckles v. United States, 137 S. Ct. 886 (2017), the United
States Supreme Court rejected Harris’s argument that Johnson, which applied to the residual
clause in the Armed Career Criminal Act, effectively invalidated the residual clause set forth in
§ 4B1.2 of the advisory Guidelines, holding that “the advisory Guidelines are not subject to
vagueness challenges under the Due Process Clause.” 137 S. Ct. at 890. In addition, prior to
the Supreme Court’s decision in Beckles, the Eleventh Circuit held that Johnson does not
invalidate the residual clause in the sentencing guidelines, U.S.S.G. § 4B1.2(a)(2), United
States v. Matchett, 802 F.3d 1185, 1193 96 (2015), reh’g denied, 837 F.3d 1118 (11th Cir.
2016) (en banc), cert. denied, 137 S. Ct. 1344 (2017), and subsequently held that “nothing in
Johnson precludes the application of the offense level increases or enhancements in
the advisory sentencing guidelines.” United States v. Kirk, 636 F. App’x 548, 550 (11th Cir.
2016) (emphasis added). Therefore, pursuant to Beckles, Matchett, and Kirk, the Johnson
decision and, thus, § 2255(f)(3) are not applicable to Harris’s action. Accordingly, Harris’s §
2255 motion is time barred. Based on the foregoing, the undersigned recommends that the
motion to dismiss filed by the United States be GRANTED and that Harris’s § 2255 motion be
DISMISSED as time barred pursuant to 28 U.S.C. § 2255(f).
CERTIFICATE OF APPEALABILITY

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Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the undersigned
recommends that a certificate of appealability in this case 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 habeas corpus petition only where a circuit
justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). A certificate of
appealability may issue only where “the applicant has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2243(c)(2). The instant habeas petition is being denied
partially on procedural grounds, such that “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 the
district court was correct in its procedural ruling[,]” Slack v. McDaniel, 529 U.S. 473, 484
(2000),and partially on the failure of Harris’s claim of unconstitutionality of the residual clause
set forth in § 4B1.2 of the advisory Guidelines, such that 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, 529 U.S. at 483–484 (“To obtain a COA
under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a
constitutional right, a demonstration that, under Barefoot, includes showing that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’”). See also Miller El v. Cockrell, 537 U.S. 322, 336 (2003)
(“Under the controlling standard, a petitioner must ‘sho[w] that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a different

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manner or that the issues presented were “adequate to deserve encouragement to proceed
further.”’”). Given the applicability of the one year limitations period in this case, a reasonable
jurist could not conclude that this Court is in error for summarily dismissing Harris’s motion to
vacate, nor could a reasonable jurist conclude that Harris should be allowed to proceed further
with respect to his constitutional claim. 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.”). Accordingly, Harris is not entitled to a
certificate of appealability.
Rule 11(a) further provides: “Before 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. Brightwell v.
Patterson, CA 11 00165 WS C, Doc. 14 (order from Eleventh Circuit denying petitioner a
certificate of appealability in a case in which this exact procedure was outlined in the report
and recommendation);; see also Castrejon v. United States, 2011 WL 3241817, *20 (S.D. Ala.
Jun. 28, 2011) (providing for the same procedure), report and recommendation adopted, 2011
WL 3241580 (S.D. Ala. Jul. 29, 2011);; Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla.
Sept. 20, 2010) (providing for same procedure), report and recommendation adopted sub nom.
Griffin v. Butterworth, 2010 WL 3943699 (N.D. Fla. Oct. 5, 2010).
CONCLUSION
The undersigned Magistrate Judge RECOMMENDS that the renewed motion to dismiss
filed by the United States (Doc. 61) be GRANTED and that Harris’s § 2255 motion to vacate,

7
set aside or correct sentence (Doc. 49) be DISMISSED as time barred pursuant to 28 U.S.C. §
2255(f). Harris is not entitled to a certificate of appealability and, therefore, 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.
The parties should note that under Eleventh Circuit Rule 3 1, “[a] party failing to object to a
magistrate judge’s findings or recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on
appeal the district court’s order based on unobjected to factual and legal conclusions if the
party was informed of the time period for objecting and the consequences on appeal for failing
to object. In the absence of a proper objection, however, the court may review on appeal for
plain error if necessary in the interests of justice.” 11th Cir. R. 3 1. 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 the 20th day of April, 2018.
s/P. BRADLEY MURRAY
UNITED STATES MAGISTRATE JUDGE