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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 4:02cr3/MW/CAS

 4:14cv278/MW/CAS

DANIEL JUNIOR UPSHAW

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s motion to vacate, set aside, or

correct sentence pursuant to 28 U.S.C. § 2255, and supporting memorandum of law (doc.

51). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides in part that “[i]f

it plainly appears from the face of the motion and any attached exhibits and the record of

prior proceedings that the moving party is not entitled to relief, the judge must dismiss the

motion and direct the clerk to notify the moving party.” After a review of the record, it is the

opinion of the undersigned that the motion is untimely and that it should be summarily

dismissed.

BACKGROUND and ANALYSIS

In June of 2002, Defendant was sentenced to a term of 360 months imprisonment

on controlled substance and firearms offenses. His sentence was later reduced to 329

months (see docs. 30, 35). Although he filed several motions for reductions in his sentence

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pursuant to 18 U.S.C. § 3582, he has not previously filed a motion pursuant to 28 U.S.C. §

2255. In the instant motion, Defendant now contends that he is entitled to re-sentencing

because, under the Supreme Court’s decision in Descamps v. United States, 133 S.Ct.

2276 (2013), the state convictions used to enhance his sentence in this case are no longer

qualifying predicate offenses. 

Title 28 U.S.C. § 2255(f) imposes a one-year time limitation on the filing of motions

under this section. The one-year period of time runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the United

States is removed, if the petitioner was prevented from making a motion by

such governmental action;

(3) the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented

could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255. Defendant claims that his motion is timely filed pursuant to 28 U.S.C. §

2255(f)(3) under Descamps.

1

 

1

In Descamps, the defendant was convicted of possession of a firearm by a convicted

felon and sentenced under the ACCA, based in part upon his prior burglary conviction under

California law. Descamps involved application of the “residual clause” of the ACCA, §

924(e)(2)(B)(ii), which defines “violent felony” as “burglary, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The California burglary statute did not include

an element of the generic crime of burglary; it did not require that a burglar “enter or remain

unlawfully in a building.” The Supreme Court held that federal sentencing courts may not apply

the “modified categorical approach” (meaning, consulting a limited class of documents, such

as indictments and jury instructions) to sentencing under ACCA's “residual clause” when the

state crime of which the defendant was convicted has a single, indivisible set of elements

(meaning, the statute did not contain alternative elements). 133 S.Ct. at 2281–82.

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The Supreme Court has clearly stated that “a new rule is not made retroactive to

cases on collateral review unless the Supreme Court holds it to be retroactive.” Tyler v.

Cain, 533 U.S. 656, 663 (2001). The Supreme Court has not declared its decision in

Descamps to be retroactively applicable on collateral review, nor has the undersigned

found any cases applying Descamps retroactively to cases on collateral review, although

many cases have held to the contrary. See, e.g., United States v. Boykin, Case Nos.

4:07cr38-RH/GRJ, 4:14cv224-RH/GRJ, 2014 WL 2459721 (N.D. Fla., May 31, 2014)

(dismissing § 2255 filed in reliance on Descamps as untimely); Larvie v. United States,

Case No. CIV 14-3006, 2014 WL 2465588, at *5 (D. S.D. June 2, 2014) (denying motion

based on Descamps and noting that court had found no cases that had found Descamps

retroactively applicable on collateral review); Pulley v. United States, Case Nos.

2:13CV257-PPS, 2:04CR12-PPS, 2014 WL 2206893, at *2 (N.D. Ind. May 27, 2014)

(finding that Descamps broke no new found and thus did not “revive the one year

limitations period of § 2255”); Baker v. Zych, Case No. 7:13cv512, 2014 WL 1875114, at

*2 (W.D.Va. May 9, 2014) (collecting decisions finding that Descamps is not retroactive on

collateral review); Valencia-Mazariegos v. United States, Case No. A-09-CR-228-SS,

2014 WL 1767706 at *3 (W.D. Tex. May 1, 2014) (“the Supreme Court has not declared

its decision in Descamps to be retroactively applicable on collateral review, and this Court

has not found any lower court cases applying Descamps retroactively to cases on

collateral review”); Harr v. United States, Case No. 14-cv-1152, 2014 WL 1674085 at *3

(C.D. Ill. 2014) (Descamps did not announce a new rule of law but merely clarified existing

Case Nos.: 4:02cr3/MW/CAS; 4:14cv278/MW/CAS

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law and thus did not apply retroactively on collateral review); United States v. Hastings,

Case No. 11-25(1)(RHK/FLN), 2014 WL 1584482 at *7 (D. Minn. Apr. 21, 2014) (noting

the Supreme Court has not held that Descamps is retroactively applicable on collateral

review and the court was unaware of any other federal court applying Descamps to a case

that became final on direct appeal before Descamps was decided); Hoskins v. Coakley,

Case No. 4:13 CV 1632, 2014 WL 245095 at *5 (N.D.Ohio, Jan. 22, 2014) (“there is no

suggestion that the Supreme Court intended Descamps to be applied retroactively to

cases which already became final after appeals”); Roscoe v. United States, No.

2:11–CR–37–JHH–RRA, 2013 WL 5636686, at *11 (N.D. Ala. Oct.16, 2013) (noting the

Supreme Court has not made Descamps retroactively applicable on collateral review);

Strickland v. English, No. 5:13–CV–248–RS–EMT, 2013 WL 4502302, at *8 (N.D. Fla.

Aug.22, 2013) (finding Descamps was not retroactive and thus “does not open the § 2241

portal” to review claims under the savings clause). Because Descamps is not retroactively

applicable on collateral review, it does not afford Defendant relief. Defendant’s motion is

time-barred and should be dismissed.

2

 

CERTIFICATE OF APPEALABILITY

Section 2255 Rule 11(a) provides that “[t]he district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant,” and if a

certificate is issued “the court must state the specific issue or issues that satisfy the

2

Defendant’s complete reliance on Descamps forecloses the need for a discussion of equitable

tolling. 

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showing required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be filed,

even if the court issues a certificate of appealability. § 2255 11(b).

After review of the record, the court finds no substantial showing of the denial of a

constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000)

(explaining how to satisfy this showing) (citation omitted). Therefore, it is also

recommended that the court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: “Before entering the final order, the

court may direct the parties to submit arguments on whether a certificate should issue.” If

there is an objection to this recommendation by either party, that party may bring this

argument to the attention of the district judge in the objections permitted to this report and

recommendation.

Based on the foregoing, it is respectfully RECOMMENDED:

1. The motion to vacate, set aside, or correct sentence (doc. 51) be summarily

DENIED and DISMISSED as untimely.

2. A certificate of appealability be DENIED.

At Tallahassee, Florida, this 19th day of June, 2014.

s/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

Case Nos.: 4:02cr3/MW/CAS; 4:14cv278/MW/CAS

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen days after being served a copy thereof. Any different

deadline that may appear on the electronic docket is for the court’s internal use

only, and does not control. A copy of objections shall be served upon all other

parties. Failure to object may limit the scope of appellate review of factual

findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir.

1988).

Case Nos.: 4:02cr3/MW/CAS; 4:14cv278/MW/CAS

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