United States District Court, S.D. Georgia, Statesboro Division
RANDAL HALL UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.").
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. 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.
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. 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.
 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.
 "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