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Thornton v. United States

United States District Court, N.D. Georgia, Atlanta Division

November 28, 2018


         MOTION TO VACATE 28 U.S.C. § 2255


          JANET F. KING JUDGE.

         Movant 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 [113], Respondent's second response [125], and Movant's reply thereto [126].[1] For the reasons discussed below, Movant's motion to vacate and a certificate of appealability (COA) are due to be denied.

         I. Background

         The 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).[2] 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).

         On June 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).

         II. Statute of Limitations

         Respondent 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).

         In 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).

         The 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).

         As of 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.

         III. 28 U.S.C. § 2255 Standard

         Section 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).

         Accordingly, § 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).

         IV. Discussion

         A. Additional Background

         At 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.

         Before 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).[3] Movant, through counsel, objected. (Id.¶ 89).

         The 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 ...

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