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Smith v. United States

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

May 3, 2017

ANDRIQUE SMITH, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          J. RANDAL HALL UNITED STATES DISTRICT JUDGE.

         After a careful de novo review of the record in this case, the Court concurs with the Magistrate Judge's Report and Recommendation (R&R), to which objections have been filed. None of Smith's objections carry weight.

         As an initial matter, movant cites no binding, Eleventh Circuit authority having any effect on the R&R, but instead invokes Fifth and Seventh Circuit case law to argue that his four prior drug convictions are somehow affected by Matins v. United States, 579 U.S., 136 S.Ct. 2243 (2016). Doc. 89 at 1-2 (citing (apparently, as he provides only last names and not citations) to United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) (utilizing Mathis to evaluate prior conviction) & Holt v. United States, 843 F.3d 720 (7th Cir. 2016) (same)). He offers no argument explaining how, precisely, these cases prove his point. See Bennet v. United States, 2013 WL 5406653 (S.D. Ga. Sept. 25, 2013) ("Merely mentioning a legal doctrine, however, is not enough. Rather, [movant] must show how it applies, and he does not. So, [it] is abandoned."). Even so, neither case has any bearing on Smith's sentence.

         Mathis doesn't directly affect his sentence in any way! it simply clarifies the existing "divisible" / "indivisible" statutory analytical framework for assessing sentence-enhancing predicate convictions. Doc. 87 at 1-3; see, e.g., United States v. Driver, 663 F.App'x 915, 918 (11th Cir. 2017); United States v. White, 837 F.3d 1225, 1235 n. 13 (11th Cir. 2016); United States v. Gundy, 842 F.3d 1156, 1161-62 (11th Cir. 2016). A framework already long in place by the time Smith was sentenced. See Taylor v. United States, 495 U.S. 575 (2009); Descamps v. United States, 133 S.Ct. 2276 (2013); see also Mays v. United States, 817 F.3d 728, 734 (11th Cir. 2016) ("Descamps did not announce a new rule its holding merely clarified existing precedent.").

         Thus, Smith is untimely. He failed to raise a claim within the one-year limitations period set forth in 28 U.S.C. § 2255(f)(1), see docs. 67 (judgment entered in September 2009) & 74 (judgment affirmed on appeal in June 2010), and has not shown any "right... newly recognized" by the Supreme Court to provide the basis for an extended § 2255(f)(3) deadline. See, e.g., Davis v. United States, 2017 WL1362795 at *4 (S.D. Ga. Mar. 16, 2017); see also Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016) ("Mathis did not announce [any constitutional] rule! it is a case of statutory interpretation."); In re Lott, 838 F.3d 522, 523 (5th Cir. 2016) (movant "failed to make a prima facie showing that Mathis... set forth new rules of constitutional law.").

         Smith was sentenced pursuant to the Sentencing Guidelines (Presentence Investigative Report at ¶ 27). As set forth in the R&R, the only retroactive decision that could possibly offer relief on an enhanced sentence would be Johnson, Doc. 87 at 2-3; see generally Johnson v. United States, 576 U.S., 135 S.Ct. 2551 (2015) (made retroactive by Welch v. United States, 578 U.S., 136 S.Ct. 1257 (2016)). And Johnson does not apply to the Sentencing Guidelines.[1] Doc. 87 at 2*3; see Beckles v. United States, __ U.S. __, 2017 WL 855781 (Mar. 6, 2017); United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015). Because he has no possible claim for relief, his request for appointment of counsel was also properly denied. Id. at 3. Accordingly, the R&R is ADOPTED, and this case is DISMISSED with prejudice.

         Further, a prisoner seeking relief under 28 U.S.C. § 2255 must obtain a certificate of appealability ("COA") before appealing the denial of his application for writ of habeas corpus. 28 U.S.C. § 2253(c)(1)(B). This Court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the R&R, and in consideration of the standards enunciated in Slack v. McDaniel, 529 U.S. 473, 482-84 (2000), movant has failed to make the requisite showing. Accordingly, a COA is DENIED in this case.[2] Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Accordingly, petitioner is not entitled to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3).

         ORDER ENTERED.

---------

Notes:

[1] Moreover, as the Government correctly notes, Smith clearly continues to qualify as a career offender under the Sentencing Guidelines, even after Mathis. He has seven qualifying predicates ([PSR] ¶ 27, 37, 39, 41-44, 48), well in excess of the two needed, see U.S.S.G. § 4B1.1(a)(2), including four "controlled substance offense[s], " U.S.S.G. § 4B1.2(b), for which there is no viable or even conceivable Mathis claim. Doc. 90 at 7.

[2] "If the court denies a certificate, [a party] may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22."Rule 11(a) to the Rules ...


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