United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
CHRISTOPHER L. RAY UNITED STATES MAGISTRATE JUDGE.
pleading guilty to one count of carjacking and one count of
brandishing a firearm during and in relation to a crime of
violence, see doc. 55 (plea agreement); doc. 56
(judgment for 121 months' imprisonment), Davon Shawqwen
Green neither appealed nor pursued habeas relief. He now
moves under 28 U.S.C. § 2255 to vacate his sentence
“following the Supreme Court of the United States'
holding in Sessions v. Dimaya, ” __U.S. __,
138 S.Ct. 1204 (2018). Doc. 60. That case, however, is
inapplicable to Green's conviction, and thus preliminary
§ 2255 Rule 4 review shows that his motion must be
Dimaya, the Supreme Court, relying on its reasoning
in Johnson v. United States, 576 U.S. __, 135 S.Ct.
2551 (2015), held that the definition of “crime of
violence” set forth in 18 U.S.C. § 16(b)'s
“residual clause” is unconstitutionally vague.
But Green was sentenced pursuant to the Sentencing
Guidelines. See doc. 50 (defense sentencing brief);
Presentence Investigative Report. And the Sentencing
Guidelines are “effectively advisory, ”
United States v. Booker, 543 U.S. at 245 (2005),
providing notice of an applicable statutory range,
establishing permissible bounds of sentencing discretion, and
enabling the court to “make an individualized
assessment based on the facts presented” and other
statutory factors, Gall v. United States, 552 U.S.
38, 49-50 (2007). In other words, they serve as “the
framework for sentencing, but do not constrain that
discretion.” Beckles v. United States, __ U.S.
__, 137 S.Ct. 886, 894 (2017) (quotes and cites omitted).
Because they “merely guide the district courts'
discretion, the Guidelines are not amenable to a vagueness
challenge.” Id. (nothing that the
“advisory Guidelines [ ] do not implicate the twin
concerns underlying vagueness doctrine --providing notice and
preventing arbitrary enforcement.”).
differently, nothing in Dimaya helps Green. See
United States v. Ceasar, __ Fed. App'x. __, 2019 WL
1110835 (11th Cir. Mar. 11, 2019) (affirming movant's
conviction and sentence for using a firearm during a crime of
violence, carjacking, over his argument that Dimaya
and Johnson rendered 18 U.S.C. § 924(c)
offenses unconstitutionally vague).Even if it did, however,
Dimaya has not been “made retroactively
applicable to cases on collateral review, ” such that
it would surmount the one-year statute of limitations found
in 28 U.S.C. § 2255(f)(3). E.g., Henderson v. United
States, 2018 WL 3536075 at *7 (S.D. Ga. July 23, 2018);
Lane v. United States, 2018 WL 2976993 at *2 (S.D.
Ga. May 21, 2018). After all, judgment was entered on June
10, 2016, making Green's conviction final fourteen days
later. See Fed. R. App. P. 4(b)(1)(A)(i) (defendants
must notice their appeals within 14 days from the entry of
judgment); Mederos v. United States, 218 F.3d 1252,
1253 (11th Cir. 2000) (judgment of conviction is final on
expiration of deadline to file notice of appeal). He then had
until June 24, 2017 (one year after that) to seek § 2255
relief. 28 U.S.C. § 2255(f). Green did not
signature-file the present § 2255 motion, however, until
March 31, 2019 -- nearly two years too late. Doc. 842 at 25.
Movant offers no explanation for his failure to timely file
his § 2255 motion.
the statute of limitations “can be equitably tolled
where a petitioner untimely files because of extraordinary
circumstances that are both beyond his control and
unavoidable even with diligence, ” Kicklighter v.
United States, 281 Fed.Appx. 926, 930 (11th Cir. 2008)
(quoting Outler v. United States, 485 F.3d 1273,
1280 (11th Cir. 2007)), this is not such a case. Green has
not alleged either the existence of “extraordinary
circumstances” that prevented his timely filing the
petition, Wakefield v. R.R. Ret. Bd., 131 F.3d 967,
970 (11th Cir. 1997) (neither a litigant's pro
se status nor ignorance of the law normally warrants
equitable tolling), or that he diligently pursued relief.
See Diaz v. Sec'y for Dep't of Corr., 362
F.3d 698, 702 (11th Cir. 2004) (“equitable tolling is
available only if a petitioner establishes both
extraordinary circumstances and due diligence”). His
challenge is time-barred.
Green's § 2255 motion should be
DENIED. Applying the Certificate of
Appealability (COA) standards set forth in Brown v.
United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9,
2009), the Court discerns no COA-worthy issues at this stage
of the litigation, so no COA should issue either. 28 U.S.C.
§ 2253(c)(1); Rule 11(a) of the Rules Governing Habeas
Corpus Cases Under 28 U.S.C. § 2254 (“The district
court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant”) (emphasis added).
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 Fed.Appx. 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED.
 The Court is citing to the criminal
docket in CR415-133 unless otherwise noted, and all page
numbers are those imprinted by the Court's docketing
 The Supreme Court recently granted
certiorari to determine the constitutionality of
§ 924(c)'s residual clause. See United States v.
Davis, No. 18-431, 2019 WL 98544 (Jan. 4, 2019).
 As described in the statute, the
one-year limitation period runs from the ...