United States District Court, N.D. Georgia, Atlanta Division
TO VACATE 28 U.S.C. § 2255
UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND
F. KING JUDGE.
has filed a 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his federal sentence entered in this Court
under the above criminal docket number. The matter is before
the Court on the motion to vacate , Respondent's
second response , and Movant's reply thereto
. For the reasons discussed below,
Movant's motion to vacate and a certificate of
appealability (COA) are due to be denied.
grand jury for the Northern District of Georgia charged
Movant on one count of conspiracy to interfere with commerce
by threat or violence and twelve counts of aiding and
abetting interference with commerce by robbery by means of
actual and threatened force and violence. (Indictment, ECF
No. 1). Represented by Mr. Fenn Little, Jr., Movant pleaded
guilty to the conspiracy count and to seven of the aiding and
abetting counts. (Plea, ECF No. 73-1). On May 15, 2015,
the Court sentenced Movant as a career offender under
U.S.S.G. § 4B1.1 and imposed a total 151-month term of
imprisonment. (Sentencing Tr. at 47-49, 62, ECF No. 104; J.,
ECF No. 92). On December 28, 2015, the Eleventh Circuit Court
of Appeals affirmed the judgment against Movant. (USCA Op.,
ECF No. 110). On May 2, 2016, the United States Supreme Court
denied certiorari. (Notice, ECF No. 112).
22, 2017, Movant submitted his § 2255 motion for filing
and therein relies on Mathis v. United States,
__U.S.__, 136 S.Ct. 2243 (2016), and contends that under
Mathis his prior state burglary convictions no
longer qualify as crimes of violence for purposes of finding
that he is a career offender under § 4B1.1 and that
counsel was ineffective for failing to object to his prior
burglary convictions being used to classify him as a career
offender. (Mot. to Vacate at 5 and Mem. in Support of Mot. to
Vacate at 2-4, ECF No. 113).
Statute of Limitations
initially argued, inter alia, that this action
should be dismissed because Movant untimely filed it more
than one year after his convictions became final on May 2,
2016, and because Mathis (decided June 23, 2016) did
not restart the federal one year limitations period under
§ 2255(f)(3) (allowing limitations period to run from
the date the United States Supreme Court has recognized a new
right that is retroactively applicable on collateral review).
(Resp't First Resp. at 7-8). After the undersigned
recommended that this action be dismissed as untimely, Movant
raised for the first time in his objections an argument for
equitable tolling. (See First R&R; Objs., ECF
No. 121; Order Sustaining Objs., ECF No. 122). The District
Court found that Movant had raised an “arguable”
claim for equitable tolling and returned the matter to the
undersigned for additional proceedings as determined
appropriate by the undersigned. (Order Sustaining Objs. at
4). The undersigned required a response from the government
in regard to equitable tolling. (Order of Apr. 18, 2018, ECF
No. 123; Order of June 13, 2018, ECF No. 124).
response, Respondent (1) stated that Movant had objected that
equitable tolling applied and that the District Court had
“agreed” and (2) argued that Movant's grounds
for relief otherwise failed. (Resp't Second Resp. at
3-10, ECF No. 125). Movant stated that the District Court had
granted equitable tolling. (Mov't Reply to Resp't
Second Resp. at 1, ECF No. 126).
Court instructed the parties that the District Court had not
adopted any of Movant's arguments in his objections and
had neither granted equitable tolling nor decided the issue
of timeliness. (Order of Aug. 10, 2018, at 2, ECF No. 127).
Accordingly, the Court allowed Respondent fourteen days to
inform the Court whether it waived any statute of limitations
defense. (Id. at 3). Respondent did not respond,
and, on September 14, 2018, the Court allowed Respondent ten
days in which to show cause for its continued failure to
respond. (Order of Sept. 14, 2018, ECF No. 128).
November 28, 2018, Respondent has failed to file any
additional response, and Movant contends that Respondent has
waived its right to respond on the matter of equitable
tolling. (Mov't Resp. to Order, ECF No. 129). Based on
the above, the Court HEREBY FINDS that
Respondent has waived any statute of limitations defense.
28 U.S.C. § 2255 Standard
2255 of Title 28 allows a district court to vacate, set
aside, or correct a federal sentence that was imposed in
violation of the Constitution or laws of the United States or
was imposed by a court without jurisdiction, exceeds the
maximum sentence authorized by law, or is otherwise subject
to collateral attack. 28 U.S.C. § 2255. Collateral
relief, however, is limited. “Once [a] defendant's
chance to appeal has been waived or exhausted, . . . we are
entitled to presume he stands fairly and finally
convicted[.]” United States v. Frady, 456 U.S.
152, 164 (1982). The § 2255 movant bears the burden to
establish his right to collateral relief. Rivers v.
United States, 777 F.3d 1306, 1316 (11th Cir. 2015).
§ 2255 relief “is reserved for transgressions of
constitutional rights and for that narrow compass of other
injury that could not have been raised in direct appeal and
would, if condoned, result in a complete miscarriage of
justice.” Lynn v. United States, 365 F.3d
1225, 1232 (11th Cir. 2004) (quoting Richards v. United
States, 837 F.2d 965, 966 (11th Cir. 1988)) (internal
quotation marks omitted). A constitutional claim of
ineffective assistance of counsel generally is properly
raised on collateral review in order to allow for adequate
development and presentation of relevant facts. Massaro
v. United States, 538 U.S. 500, 505-09 (2003).
issue here is whether Movant's Georgia burglary
convictions are convictions for generic burglary, which
qualify as predicate crimes of violence for career offender
designation. When a state burglary statute is broader than
generic burglary, it must be determined whether the statute
is divisible with alternative elements that include the crime
of generic burglary (which can support a finding that the
defendant was convicted of generic burglary) or whether the
statute is indivisible (which cannot support a finding that
the defendant was convicted of generic burglary). See
infra section IV. C.
sentencing, Movant's presentence investigation report
(PSR) was prepared, which states that under U.S.S.G. §
4B1.1(b)(3) Movant qualifies as a career offender based on
his DeKalb County burglary conviction, case number 98CR1943,
and his Henry County burglary conviction, case number
2003-SU-CR-353-M. (PSR ¶¶ 89, 100, 102, 110, ECF
No. 97). Movant, through counsel, objected.
government argued that burglary as defined in Georgia law is
nongeneric, broader than generic burglary; that the Georgia
statute includes generic burglary and is divisible; that the
Court, therefore, was allowed to look at underlying documents
to determine whether Movant's convictions fit the generic
definition of burglary; and that Movant's convictions
were for generic burglary. (Gov't Sentencing Mem. at 5-7,
ECF No. 82). The government provided a copy of the indictment
in Movant's 1997 DeKalb County case number 98CR1943,
which shows that he was charged with burglary in that he
“without authority and with intent to commit a theft
therein, did enter and remain in the dwelling house of
Mariotta Smith, located at . . . Rd.” (Gov't Ex.
3A, ECF No. 82-3). The government also provided a copy of the
indictment in Movant's 2003 Henry County case number
2003-SU-CR-353-M, which shows that he was charged with five
counts of ...