United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS UNITED STATES MAGISTRATE JUDGE
an inmate at Fort Dix Federal Correctional Institution in New
Jersey, filed a motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence. The matter is now before
the Court for an initial review of Petitioner's motion as
required by Rule 4 of the Rules Governing Section 2255
Proceedings for the United States District Courts. For the
reasons set forth below, the Court REPORTS
and RECOMMENDS Petitioner's motion to
appoint counsel, Petitioner's motion for leave to proceed
in forma pauperis, and Respondent's motion to
dismiss be DENIED as MOOT,
(doc. nos. 3, 4, 6), Petitioner's § 2255 motion be
DISMISSED and this civil action be
February 3, 2010, the grand jury in the Southern District of
Georgia charged Petitioner with felon in possession of a
firearm, possession with intent to distribute marijuana, and
possession of a firearm in furtherance of a drug trafficking
crime. United States v. Davis, CR 110-041, doc. no.
1 (S.D. Ga. Feb. 3, 2010) (hereinafter “CR
110-041”). The Court appointed Edward J. Coleman to
represent Petitioner. Id., doc. no. 22.
November 10, 2010, Petitioner appeared with counsel and pled
guilty to Count One of the indictment. Id., doc.
nos. 41-43. Petitioner admitted the factual basis for his
guilty plea. Id., doc. no. 43, pp. 5-6. As part of
the plea agreement, Petitioner also agreed to waive the right
to file a direct appeal and the right to collaterally attack
his conviction and sentence unless his sentence exceeded the
statutory maximum, the sentencing court upwardly departed
from the advisory Guideline range, or the government appealed
the sentence. Id. at 4-5. At sentencing on February
17, 2011, Chief United States District Judge J. Randal Hall
sentenced Petitioner to the mandatory minimum sentence of 180
months imprisonment, five years supervised release, a $1,
000.00 fine, and a $100.00 special assessment. Id.,
doc. no. 51. Judgment entered on February 22, 2011.
with the appellate waiver provision in Petitioner's plea
agreement, Petitioner did not file a direct appeal.
Id., doc. no. 43, pp. 4-5. However, on December 5,
2011, Petitioner filed his first § 2255 motion raising
two grounds for relief. In Ground One, Petitioner alleged
counsel was ineffective for failing to: (1) request a
competency evaluation before Petitioner entered his guilty
plea; (2) investigate the “legal authentication of the
alleged priors used to support the fact finding
required”; and (3) object to the “illegal
enhancements” to Petitioner's sentence under §
924(e). Id., doc. no. 52. In Ground Two, Petitioner
argued the sentencing court failed to ensure authentication
of the convictions used to enhance his sentence as required
by Shepard v. United States, 544 U.S. 13 (2005), and
two of his convictions did not qualify for enhancement under
§ 924(e). Id. Respondent moved to dismiss,
contending Petitioner's claims were barred by the
collateral attack waiver and meritless. Id., doc.
no. 61, pp. 9-17.
Court granted Respondent's motion to dismiss, finding all
of Petitioner's Ground One and Two claims concerning
counsel's representation at sentencing barred by the
collateral attack waiver. Id., doc. nos. 64, 69, 70.
In finding Petitioner's remaining claims meritless, this
Court determined Petitioner's burglary conviction was for
“generic burglary, ” and was properly considered
an ACCA predicate offense. Id., doc. no. 64, p. 18.
This Court cited information from the PSI that
Petitioner's burglary conviction was for
“enter[ing] the home of [victim] . . . with intent to
commit a theft.” Id.; PSI ¶ 27.
Petitioner did not appeal.
27, 2016, Petitioner filed an application pursuant to 28
U.S.C. §§ 2255(h), and 2244(b)(3)(A) with the
Eleventh Circuit Court of Appeals, seeking an order
authorizing this Court to consider a second or successive
§ 2255 motion. In re Charles Davis, No.16-14323
(11th Cir. June 27, 2016). The Eleventh Circuit granted
Petitioner's application, determining Petitioner had made
a prima facie showing that his claim implicated
Johnson v. United States, 576 U.S. -, 135 S.Ct.
2551, 2563 (2015). In granting Petitioner's application,
the Eleventh Circuit specifically noted: (1) the sentencing
court did not state whether it counted Petitioner's
burglary conviction as an ACCA predicate under the enumerated
offenses or elements clause, and (2) the Supreme Court's
decision in Mathis v. United States, 579 U.S. -, 136
S.Ct. 2243 (2016) “supports the conclusion that the
Georgia burglary statute is not divisible.” CR 110-041,
doc. no. 74, pp. 6-7. The Eleventh Circuit cautioned,
however, it made a limited determination to allow the filing
of a second motion, and because no merits had been
conclusively resolved by simply allowing the motion to be
filed, this Court did not owe deference to the prima
facie finding. Id.
filed his second § 2255 motion on September 30, 2016,
arguing his prior Georgia burglary conviction no longer
qualifies as an ACCA predicate offense in light of
Johnson, Mathis, and Descamps v. United
States, 570 U.S. -, 133 S.Ct. 2276, 2281 (2013).
Id., doc. no. 79, pp. 15-19. Petitioner argued his
burglary conviction cannot qualify as “generic”
burglary under the enumerated offenses clause because
Georgia's burglary statute is both non-generic and
indivisible. Id. at 17. Petitioner contended because
his burglary conviction cannot qualify under the enumerated
offenses clause, it can only qualify under the now
invalidated residual clause. Id.
filed a motion to dismiss the petition, arguing: (1)
Petitioner had not met the requirements under 28 U.S.C.
§ 2255(h) for a successive § 2255 motion; and (2)
even under Descamps and Mathis,
Petitioner's prior burglary conviction qualified as an
ACCA predicate offense under the enumerated offenses clause.
See generally id., doc. no. 81. The Court granted
Respondent's motion to dismiss and dismissed
Petitioner's § 2255 motion, holding Petitioner met
the requirements for a second or successive motion but
Petitioner's burglary conviction continued to qualify as
a predicate offense under the enumerated offenses clause of
the ACCA. See id., doc. nos. 85, 87. Again,
Petitioner did not appeal.
January 2, 2019, Petitioner filed the present § 2255
motion under the civil action number for his second §
2255, arguing the burglary offense does not qualify as a
predicate offense under the ACCA because Petitioner was
seventeen years old at the time of the offense, citing
United States v. Pinion, 4 F.3d 941 (11th Cir.
1993). (Doc. no. 2, pp. 6-8.) Petitioner argues he would be
entitled to relief if his petition had been based on
Pinion and filed today. (Id. at 8.) On
February 1, 2019, Respondent filed a motion to dismiss
Petitioner's § 2255 motion. (Doc. no. 6.) On
February 5, 2019, the Court ordered the Clerk of Court to
file Petitioner's present § 2255 motion in a new
civil action. (Doc. no. 1.)
Petitioner's § 2255 Motion is Barred as Second or
described above, the Eleventh Circuit authorized Petitioner
to file a second or successive § 2255 motion in June
2016 because Petitioner made a prima facie showing
his claim implicated Johnson as to whether
Petitioner's burglary conviction was an ACCA predicate
under the enumerated offenses or elements clause. In re
Davis, No.16-14323. Pursuant to the Eleventh
Circuit's authorization, Petitioner filed his second
§ 2255 motion in August 2016, which the Court dismissed
because Petitioner's burglary conviction continued to
qualify as a predicate offense under the enumerated offenses
clause of the ACCA. See CR 110-041, doc. nos. ...