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Case Nos.: 1:94cr1055/MW/GRJ; 1:17cv193/MW/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

v. Case Nos.: 1:94cr1055/MW/GRJ

1:17cv193/MW/GRJ

DOUGLAS A. FLYNN,

Petitioner.

REPORT AND RECOMMENDATION

Petitioner Douglas A. Flynn has filed a motion to vacate, set aside, or 

correct sentence under 28 U.S.C. § 2255 and an attached memorandum in 

support. (ECF No. 80.) Petitioner did not provide a service copy of his 

motion. However, Rule 4(b) of these rules provides in part that “[i]f it 

plainly appears from the motion, 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, the Court concludes that the motion is untimely 

and that it should be dismissed.
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BACKGROUND and ANALYSIS

In February of 1995, a jury convicted Petitioner of escape in violation 

of 18 U.S.C. § 751(a) and bank robbery in violation of 18 U.S.C. § 2113(a). 

(ECF No. 40.) He was classified as a career criminal in his Presentence 

Investigation Report (“PSR”) because the instant bank robbery was a 

felony crime of violence and because he had at least two other prior 

convictions for crimes of violence, although the qualifying convictions were 

not specifically enumerated in the paragraph identifying him as such. 

(ECF No. 77, PSR ¶ 37.)1 Petitioner was sentenced to 60 months’ 

imprisonment on the escape and to 240 months’ imprisonment on the bank 

robbery, to be served concurrently, followed by three (3) years of 

supervised release. (ECF No. 53.) Petitioner appealed, and on February 

1, 1996, Petitioner’s convictions and sentences were affirmed on appeal

without opinion. United States v. Flynn, 77 F.3d 497 (11th Cir. 1996).

Petitioner did not file a petition for certiorari with the United States Supreme 

Court, and as such his judgment of conviction became final on the date on 

 

1 The court notes that the PSR contains several prior convictions for crimes of violence, 

including a 1993 Tennessee conviction for armed bank robbery, and a 1993 Florida 

conviction for armed bank robbery. (See ECF No. 77, PSR ¶¶ 62, 63.) 
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which his time for filing such a petition expired (i.e., ninety days after the 

entry of the court of appeals judgment). Thus, Petitioner had until May 1,

1996, to file a motion under § 2255. Petitioner did not file the instant 

§ 2255 motion until eleven years later on July 25, 2017.

2 Therefore, his 

motion is facially untimely. 

The court will address his motion to the extent necessary to explain 

why Johnson v. United States, 135 S. Ct. 2551 (2015), does not make his 

motion timely. In his motion, Petitioner argues that the imposition of the 

career offender enhancement to his sentence violates due process 

because his convictions no longer qualify as crimes of violence after 

Johnson. In Johnson, the Supreme Court ruled that the Armed Career 

 

2 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. 
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Criminal Act’s, (“ACCA”) “residual clause” was unconstitutionally vague. 

Under the ACCA, a person who has three previous convictions for a violent 

felony, a serious drug offense, or both is subject to a mandatory minimum 

fifteen-year sentence. 18 U.S.C. § 924(e)(1). The statutory definition of 

a violent felony under the ACCA is an offense that either “(i) has as an 

element the use, attempted use, or threatened use of physical force against 

the person of another [known as the elements clause] or (ii) is burglary, 

arson, or extortion, involves the use of explosives [known as the 

enumerated offenses clause] or otherwise involves conduct that presents a 

serious potential risk of physical injury to another [known as the residual

clause].” 18 U.S.C. § 924(e)(2)(B)(i) and (ii). An individual subject to 

ACCA’s enhanced penalties also is subject to a greater guidelines range 

pursuant to U.S.S.G. § 4B1.4. After Johnson, a prior conviction can only 

qualify as a “violent felony” if it falls within the elements clause or is one of 

the enumerated offenses. The Supreme Court held that Johnson

announced a new substantive rule that applies retroactively to cases on 

collateral review. Welch v. United States, 136 S. Ct. 1257, 1264-65 

(2016). 
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Petitioner understands that he was sentenced as a career offender

under the Sentencing Guidelines, not under the ACCA, but argues that the 

reasoning in Johnson which invalidated the ACCA’s residual clause on 

vagueness grounds should extend to and invalidate the residual clause of 

the Guidelines’ definition of a “crime of violence.” See U.S.S.G. 

§ 4B1.2(a). Petitioner’s claim, however, is foreclosed by the Supreme 

Court’s recent decision in Beckles v. United States, 137 S. Ct. 886 (2017), 

in which the Court held that the advisory Guidelines are not subject to 

vagueness challenges under the Due Process Clause because “they 

merely guide the exercise of a court’s discretion in choosing an appropriate 

sentence within the statutory range.” Id. at 892. The ACCA’s residual 

clause, on the other hand, fixed in an impermissibly vague way a higher 

range of sentences for certain defendants which implicated “concerns 

underlying vagueness doctrine—providing notice and preventing arbitrary 

enforcement.” Id. at 894. See also United States v. Matchett, 802 F.3d 

1185, 1194-95 (11th Cir. 2015) (holding that Johnson does not apply to the 

advisory Sentencing Guidelines and that the Guidelines are not subject to a 

similar vagueness challenge). 
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Petitioner does not address Beckles in his motion, but he contends 

that Matchett was wrongly decided. (ECF No. 80 at 29-31.) He also

argues that at the time he was sentenced in 1995 the Guidelines were 

mandatory, so the rationale for not permitting vagueness challenges to the 

advisory Guidelines outlined in Matchett should not apply. (ECF No. 80 at 

30-32.) Eleventh Circuit precedent forecloses this argument. See In re 

Griffin, 823 F.3d 1350 (11th Cir. 2016) (denying Griffin’s application to file a 

successive § 2255 motion because he could not make a prima facie 

showing that Johnson applied to him in light of binding precedent that the

Guidelines cannot be challenged as unconstitutionally vague). The Griffin

panel explained:

For the following reasons, the logic and principles established in 

[United States v.] Matchett, [802 F.3d 1185 (11th Cir. 2015)] also 

govern our panel as to Griffin's guidelines sentence when the 

Guidelines were mandatory.

The Guidelines—whether mandatory or advisory—cannot be 

unconstitutionally vague because they do not establish the illegality of 

any conduct and are designed to assist and limit the discretion of the 

sentencing judge. Id. at 1195. The limitations the Guidelines place on 

a judge's discretion cannot violate a defendant's right to due process 

by reason of being vague. The Guidelines do not define illegal 

conduct: they are directives to judges for their guidance in sentencing 

convicted criminals, not to citizens at large. Id. at 1195–96. Due 
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process does not mandate notice of where, within the statutory range, 

the guidelines sentence will fall.

Indeed, a defendant's due process rights are unimpaired by the 

complete absence of sentencing guidelines. The Constitution does 

not require sentencing guidelines in noncapital cases. Id. at 1194. 

Because there is no constitutional right to sentencing only under 

guidelines, the limitations the Guidelines place on a judge's discretion 

cannot violate a defendant's right to due process by reason of being 

vague. Id. at 1194–95. Before Congress enacted the Guidelines, the 

federal government had indeterminate sentencing. Id. at 1195. Even 

vague guidelines cabin discretion more than no guidelines at all.

Griffin, 823 F.3d at 1354-55. See In re Anderson, 829 F.3d 1290, 1292-94

(11th Cir. 2016) (noting that in light of the precedents in Matchett and 

Griffin, Anderson failed to make a prima facie showing that he is entitled to 

file a successive § 2255 motion); In re Sams, 830 F.3d 1234, 1240 (11th 

Cir. 2016) (“[O]ur precedent holds that Welch does not make Johnson

retroactive for purposes of filing a successive § 2255 motion raising a 

Johnson-based challenge to the Sentencing Guidelines.”); see also In re 

Sapp, 827 F.3d 1334, 1336 (11th Cir. 2016)(in which the panel disagreed 

with Griffin, but acknowledged that it was bound by its precedent in the 

context of mandatory Sentencing Guidelines). Petitioner acknowledges

the Griffin decision, but argues that its precedential value is limited because 
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it was decided in the context of an application to file a second or 

successive § 2255 motion. This court is unconvinced that Griffin, and the 

circuit court cases citing Griffin, are not binding on this court. Therefore, 

Petitioner’s challenge to his career offender designation is foreclosed by 

Griffin.

CONCLUSION

Because Petitioner’s conviction became final many years ago and 

Johnson does not apply to his career offender sentence, his motion is 

untimely under § 2255(f)(1) and should be dismissed. 

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings 

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 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).
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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 that:

1. Petitioner’s motion to vacate, set aside, or correct sentence 

under 28 U.S.C. § 2255, (ECF No. 80), should be DISMISSED as 

untimely. 

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 17th day of August, 2017.

/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge
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NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations 

must be filed within fourteen (14) 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. If a party 

fails to object to the magistrate judge's findings or recommendations 

as to any particular claim or issue contained in a report and 

recommendation, that party waives the right to challenge on appeal 

the district court's order based on the unobjected-to factual and legal 

conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.