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Johnson v. United States

United States District Court, S.D. Georgia, Augusta Division

August 28, 2014

TERRELL R. JOHNSON, Petitioner, [1]
v.
UNITED STATES OF AMERICA, Respondent.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BRIAN K. EPPS, Magistrate Judge.

Petitioner, an inmate at the Federal Correctional Complex in Coleman, Florida, has filed with this Court a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The matter is now before the Court for an initial review of Petitioner's motion as required by Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. For the reasons set forth below, the Court REPORTS and RECOMMENDS that Petitioner's § 2255 motion be DISMISSED as untimely, and this civil action be CLOSED.

I. BACKGROUND

On April 3, 2012, Petitioner was indicted for one count of conspiracy to commit robbery of a commercial business in violation of 18 U.S.C. §1951, one count of conspiracy to use and carry a firearm during crimes of violence in violation of 18 U.S.C. § 924(o), four counts of robbery of a commercial business in violation of 18 U.S.C. § 1951, four counts of carrying, using, and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c), and four counts of felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924. U.S. v. Johnson, CR 112-129, doc. no. 1 (S.D. Ga. Apr. 3, 2012) (hereinafter "CR 112-129"). On September 21, 2012, Petitioner, represented by attorney Pete Theodocion, pled guilty to one count of conspiracy to commit robbery of a commercial business in violation of 18 U.S.C. §1951, one count of robbery of a commercial business in violation of § 1951, and one count of using, carrying, and brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). ( Id., doc. nos. 77-79.) In exchange for Petitioner pleading guilty to the other counts, the government agreed to drop the remaining counts. ( Id., doc. no. 79, pp. 1-3.) By pleading guilty, Petitioner admitted the factual basis for his convictions. (Id. at 8-9.) Petitioner's plea agreement included a broad appeal and collateral attack waiver provision that stated in relevant part:

[T]o the maximum extent permitted by federal law, the defendant voluntarily and expressly waives the right to appeal the conviction and sentence and the right to collaterally attack the conviction and sentence in any post-conviction proceeding, including a § 2255 proceeding, on any ground, except that: the defendant may file a direct appeal of his sentence if it exceeds the statutory maximum; and the defendant may file a direct appeal of his sentence if, by variance or upward departure, the sentence is higher than the advisory sentencing guideline range as found by the sentencing court.

(Id. at 5-6.)

On April 18, 2013, United States District Judge J. Randal Hall sentenced Petitioner to a total of 184 months of imprisonment, $300.00 in special assessments, restitution of $1, 295.00, and five years of supervised release. ( Id., doc. no. 96.) Judge Hall thereafter entered Petitioner's judgment and conviction on April 19, 2013. ( Id., doc. no. 100.) Petitioner did not appeal his convictions or sentence in accordance with the appeal waiver in his plea agreement. ( Id., doc. no. 79, pp. 5-6.)

However, despite the waiver, Petitioner filed the instant motion, signed by him on June 20, 2014 and filed by the Clerk of the Court on June 30, 2014. (Doc. no. 1, p. 13.) Petitioner acknowledges he filed this motion more than one year after his convictions were final, but contends that he is entitled to file this petition for three reasons. First, mischaracterizing the Supreme Court's recent decision in Descamps v. United States , 133 S.Ct. 2276 (2013), [2] Petitioner asserts his sentence was improperly enhanced for a prior conviction under 18 U.S.C. § 924(c). (Doc. no. 2, p. 3.) Second, he is actually innocent of the charge of carrying, using, and brandishing a firm arm during a crime of violence in violation of § 924(c) because purportedly no evidence of the crime was found at the residence in which the police arrested him. (Id. at 4-5.) Third, he is actually innocent of violating § 924(c) because the police did not have a valid search warrant for, or permission to enter, the residence in which the police arrested him. (Id.) In his request for relief, Petitioner asks that the Court run his sentence under § 924(c) concurrently to his other sentences. (Doc. no. 1, p. 13.)

Even if the Court were to assume, for the sake of argument, that the collateral attack waiver in Petitioner's plea agreement is not valid, Petitioner's current § 2255 motion is barred as untimely and his arguments for a later statute of limitations are without merit.

II. DISCUSSION

28 U.S.C. § 2255(f), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides a one-year statute of limitations for § 2255 motions that runs from the latest of four possible dates:

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 that right has been newly recognized by the Supreme Court and made retroactively ...

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