United States District Court, S.D. Georgia, Savannah Division
DONALD L. UBELE, Movant,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Donald Ubele, proceeding pro se, moves under 28
U.S.C. § 2255 to vacate the Armed Career Criminal Act
(ACCA) enhancement applied to his 2006 sentence for
possession of a firearm by a convicted felon. Doc.
see docs. 1 (indictment), 29 (superseding
indictment), 70 (jury verdict), 75 (judgment for 262
months' imprisonment). He seeks to exploit the new rule
announced in Johnson v. United States, 576 U.S. ___,
135 S.Ct. 2551 (2015), and made retroactive by Welch v.
United States, 578 U.S. ___, 136 S.Ct. 1257 (2016), to
neutralize the 22- year enhanced sentence he received for
possession of a firearm and ammunition as a career felon.
Doc. 170. The Government seeks to dismiss his motion as
successive (doc. 181); Ubele has not opposed.
not Ubele's first rodeo. After judgment was entered on
May 22, 2006, he unsuccessfully appealed, see United
States v. Ubele, 215 F.App'x 971, 972-73 (11th Cir.
2007) (finding, among other things, that his two drug
convictions were "separate criminal episodes for
purposes of the ACCA because the crimes were successive
rather than simultaneous."), and has since repeatedly
attempted (unsuccessfully) to challenge his sentence, see
Ubele v. United States, No. CV412-011; Ubele v.
United States, No. CV412-136; Ubele v. Dru,
N.D.Ga. No. CV113-2293. Seizing upon the recent decision in
Johnson, movant received permission from the
Eleventh Circuit to file this habeas challenge, arguing that
his prior convictions no longer serve as ACCA predicates.
Doc. 170. The Government seeks dismissal of his successive
motion, arguing that none of Ubele's claims rest on a
"new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable, " doc. 181 at 5 (quoting 28
U.S.C. § 2255(h)(2)), because Ubele's sentence did
not rely on the "residual clause" the
Johnson court held unconstitutional.
ACCA provides enhanced penalties for defendants who are (1)
convicted of being felons in possession of firearms in
violation of 18 U.S.C. § 922(g), and (2) have
"three prior convictions . . . for a violent felony or a
serious drug offense, or both." 18 U.S.C. §
924(e)(1). Plain vanilla, felon-in-possession convictions
fetch a maximum 10 year sentence, see 18 U.S.C.
§ 922(a)(2), while the ACCA enhancement mandates a 15
year minimum (and a maximum of life). 18 U.S.C. §
ACCA defines "violent felony" as, among other
things, a felony that "otherwise involves conduct that
presents a serious potential risk of physical injury to
another." Id. at § 924(e)(2)(B).
Johnson held that that "residual clause"
violated due process. See 135 S.Ct. 2551, 2557. It
said nothing, however, about ACCA enhancements predicated on
convictions for "serious drug offenses" or
"violent felonies" classed as such under the
enumerated offenses and elements clauses. See, e.g.,
Johnson, 135 S.Ct. at 2563 ("Today's decision
does not call into question application of the Act to the
four enumerated offenses, or the remainder of the Act's
definition of a violent felony, " much less its
definition of "serious drug offense"). After
Johnson, enhancements based on those offenses remain
valid. See United States v. Tinker, 618 F.App'x
635, 637 (11th Cir. 2015) (convictions that qualify as
violent felonies under the "elements" clause of the
ACCA rather than the "residual" clause survive
enhancement was based on his conviction for arson in the
first degree in violation of O.C.G.A. § 16-7-60, see
doc. 181, Exh. B at 3-4 (indictment charging that Ubele
"did knowingly damage a dwelling house ... by means of
fire, without consent of . . . the owner"), 5-6 (plea),
7 (sentencing documents ordering 10 years' imprisonment),
and his two convictions for possession with intent to
distribute cocaine in violation of O.C.G.A. §
16-13-30(b), see doc. 181, Exh. C at 3-4 (indictment
charging Ubele with one count of possession of cocaine (on
January 19, 1989) and one count of distribution of cocaine
(on January 13, 1989), 5-6 (plea), 7 (sentencing document
ordering 10 years for each reduced count of possession with
intent to distribute, to be served concurrently).
Arson is an enumerated "violent felony,
" and possession with intent to distribute
cocaine is a serious drug offense under the ACCA --
Ubele's three qualifying convictions are not affected in
any way by the Johnson holding.
follows that movant cannot rely upon § 2255(h)(2) to
permit his indisputably successive filing. Therefore, his
motion is procedurally barred and must be DISMISSED.
Accordingly, the Government's motion to dismiss
Ubele's § 2255 motion should be GRANTED. For the
reasons set forth above, it is plain that he raises no
substantial claim of deprivation of a constitutional right.
Accordingly, no certificate of appealability should issue. 28
U.S.C. § 2253; Fed. R. App. P. 22(b); Rule 11(a) of the
Rules Governing Habeas Corpus Cases Under 28 U.S.C. §
2255 ("The district court must issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant."). Any motion for leave to
appeal in forma pauperis therefore is moot.
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
"Objections to Magistrate Judge's Report and
Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(C). The parties are advised that failure to
timely file objections will result in the waiver of rights on
appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing
Corp., 648 F.App'x 787, 790 (11th Cir. 2016);
Mitchell v. U.S., 612 F.App'x 542, 545 (11th
REPORTED AND RECOMMENDED.
 The Court is citing to the criminal
docket in CR405-012 unless otherwise noted, and all page
numbers are those imprinted by the Court's ...