Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:02-cr-00052-SPM-AK

ERIC EUGENE BALCOM,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This matter is before the Court on Doc. 77, Motion to Vacate under 28 U.S.C. § 2255, by

Eric Eugene Balcom. Because the motion hinges on the alleged unconstitutionality of certain

convictions which are presently being challenged in state court, the Court stayed this matter

pending a final ruling in state court. Doc. 78. When a considerable amount of time passed

without resolution in state court, the Court lifted the stay and ordered the Government to

respond. Doc. 93. The Government has now filed its response, Doc. 98, and Petitioner has filed

a reply. Doc. 99. This cause is therefore in a posture for decision. Having carefully considered

the matter, the Court recommends that the motion to vacate be denied without prejudice. 

BACKGROUND

Defendant pled guilty to conspiracy to possess with intent to distribut more than 50

grams of crack cocaine. Before the plea, the Government filed an Information and Notice of

Intent pursuant to 21 U.S.C. § 851, advising Defendant of its intention to seek an enhanced

Case 4:02-cr-00052-RH-CAS Document 101 Filed 04/02/08 Page 1 of 4
Page 2 of 4

Case No: 4:02-cr-00052-SPM-AK

sentence based on two prior state court convictions for possession of cocaine with intent to sell

or deliver and for possession of cocaine. Doc. 12. Defendant opposed this proposed

enhancement. Doc. 51. While he agreed that the conviction for possession with intent might be

a proper enumerated offense for enhancement, he argued “the charge of possession of cocaine,

without more, is not a prior predicate offense.” Id. He further argued that state court charging

documents failed to “state what conduct by the Defendant was utilized to determine his intent to

sell or deliver,” and thus, the possession with intent conviction was really a “case of simple

felonious possession of cocaine.” Id. Finally, he complained that the probation officer had

improperly substituted a conviction for aggravated assault for the possession conviction in order

to salvage the § 851 enhancement. Id.

At sentencing, the Court imposed a life sentence based on the two prior felony drug

convictions, Doc. 76, and Defendant appealed. On appeal, the Eleventh Circuit found that

“because both prior convictions included in the government’s § 851 information were state

felony convictions relating to narcotics, and were punishable by more than one year

imprisonment, they satisfied the § 841(b)(1)(A) requirement to show two prior felony drug

convictions before imposition of the statutory minimum sentence of life imprisonment.” Id. 

Thus, the Court did not err in enhancing Defendant’s sentence. Id. 

The instant motion to vacate followed. As noted, the only issue is whether Defendant’s

“prior state convictions are invalid and subject to successful collateral attack as

unconstitutional.” Doc. 77. In response, the Government maintains that Defendant’s efforts to

attack the state court convictions are untimely, since he did not dispute their validity, as opposed

to their applicability for enhancement, before sentencing. Doc. 98. Furthermore, he failed “to

Case 4:02-cr-00052-RH-CAS Document 101 Filed 04/02/08 Page 2 of 4
Page 3 of 4

Case No: 4:02-cr-00052-SPM-AK

state the basis for his challenge to the validity of the convictions.” Id. The Government further

argues that until such time as Defendant successfully challenges the state court convictions, the

instant motion should be dismissed. Id. Therefore, the motion to vacate “should be denied

without prejudice to reopen within 60 days of final resolution of his motion in State Court.” Id. 

In reply, Defendant advises that the state court dismissed his post-conviction motion without

prejudice to refiling in the appellate court based on counsel’s failure to file a notice of appeal

after he was requested to do so. Doc. 99. He also argues for the first time that based on the

retroactive amendments to the Guidelines regarding crack cocaine, his life sentence is

eliminated. Id.

DISCUSSION

It is undisputed that a “defendant given a sentence enhanced for a prior conviction is

entitled to a reduction if the earlier conviction is vacated.” Johnson v. United States, 544 U.S.

295, 303 (2005). The allegedly invalid state court conviction cannot be collaterally attacked in

federal court, however, absent a showing that the defendant was convicted in violation of his

right to counsel. Id. Instant Defendant has not tried to attack the validity of his state court

convictions in this Court but has instead properly sought relief in state court. In that situation,

the one-year statute of limitations for seeking § 2255 relief “begins when [he] receives notice of

the order vacating the prior conviction, provided that he has sought it with due diligence in state

court, after entry of judgment in the federal case with the enhanced sentence.” Id. at 298.

Case 4:02-cr-00052-RH-CAS Document 101 Filed 04/02/08 Page 3 of 4
Page 4 of 4

Case No: 4:02-cr-00052-SPM-AK

Dismissal of this motion without prejudice is therefore appropriate, as there has been no

order vacating either prior state court conviction. To the extent that Defendant seeks relief

pursuant to the retroactive amendments to the Guidelines, he should file a motion pursuant to 18

U.S.C. § 3582(c)(2). 

Accordingly, it is respectfully RECOMMENDED that the motion to vacate, Doc. 77, be

DENIED WITHOUT PREJUDICE.

IN CHAMBERS at Gainesville, Florida, this 2nd day of April, 2008.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

Case 4:02-cr-00052-RH-CAS Document 101 Filed 04/02/08 Page 4 of 4