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Cases No. 5:11cr19-RH-MJF and 5:19cv486-RH-MJF

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASES NO. 5:11cr19-RH-MJF

5:19cv486-RH-MJF

JOSEPH TYRELL DUHON,

Defendant.

_________________________________/

ORDER DENYING THE § 2255 MOTION AND 

DENYING A CERTIFICATE OF APPEALABILITY

The defendant Joseph Tyrell Duhon has moved under 28 U.S.C. § 2255 for 

relief from his 2012 conviction and sentence. He asserts a claim based on United 

States v. Davis, 139 S. Ct. 2319 (2019), which held the 18 U.S.C. § 924(c) 

“residual clause” unconstitutional. That claim fails on the merits; the residual 

clause had nothing to do with Mr. Duhon’s conviction. He also asserts other 

claims, but they are untimely. This order denies relief.

I

A grand jury indicted Mr. Duhon on four counts. He pled guilty to counts 2 

and 3. Counts 1 and 4 were dismissed on the government’s motion.
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Cases No. 5:11cr19-RH-MJF and 5:19cv486-RH-MJF

The charge in count 2 was possessing a firearm in furtherance of a drug 

trafficking crime in violation of § 924(c). The charge in count 3 was possessing a 

firearm and ammunition as a convicted felon in violation of 18 U.S.C. § 922(g). 

The guideline imprisonment range on count 3 was 37 to 46 months. The guideline 

imprisonment range on count 2 was a single point—60 months—and the statute 

required the sentence to be served consecutively to any other sentence. The judge 

presiding over the case at that time imposed a within-guideline sentence: 46 

months on count 3 and 60 months consecutive on count 2, for a combined total of 

106 months. 

Mr. Duhon appealed. The United States Court of Appeals for the Eleventh 

Circuit issued an opinion affirming the judgment on January 15, 2013. Mr. Duhon 

did not file a petition for a writ of certiorari. 

II

Motions for relief under § 2255 must be filed within a one-year limitation 

period. The period runs from one of four dates, depending on the circumstances. 

The limitation period for Mr. Duhon’s Davis claim ran from the date of that 

decision. See 28 U.S.C. § 2255(f)(3). The claim is timely.

That does not, however, make the other claims timely. The timeliness of 

each claim in a § 2255 motion must be evaluated on its own. See Zack v. Tucker, 

704 F.3d 917 (11th Cir. 2013) (en banc). The limitation period for the claims not 
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Cases No. 5:11cr19-RH-MJF and 5:19cv486-RH-MJF

based on Davis ran “the date on which the judgment of conviction [became] final.” 

Id. § 2255(f)(1). The period thus began to run on April 15, 2013, the deadline for 

filing a certiorari petition for review of the Eleventh Circuit’s decision on direct 

appeal. The limitation period expired on April 15, 2014. These claims are 

untimely. 

For what it’s worth, the other claims are also plainly unfounded on the 

merits. Mr. Duhon received a guideline sentence. That the government asked for a 

higher sentence was not improper, was not within the control of Mr. Duhon’s 

attorney, and ultimately made no difference. Mr. Duhon’s vague allegations do not 

support a claim that his attorney rendered ineffective assistance or that there was 

any defect in the proceedings at all.

III

Mr. Duhon invokes Davis to challenge his count 2 conviction under 

§ 924(c). That statute makes it a crime to possess a firearm in furtherance of a 

crime of violence or drug-trafficking crime. Davis held unconstitutional the 

“residual clause,” part of the § 924(c) definition of a crime of violence. But Mr. 

Duhon was not convicted of possessing a firearm in furtherance of a crime of 

violence; he was convicted of possessing a firearm in furtherance of a drugtrafficking crime. Davis has nothing to do with it. The Davis claim fails on the 

merits.
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Cases No. 5:11cr19-RH-MJF and 5:19cv486-RH-MJF

IV

A defendant may appeal the denial of a § 2255 motion only if the district 

court or court of appeals issues a certificate of appealability. Under 28 U.S.C. 

§ 2253(c)(2), a certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” See Miller-El v. 

Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 

(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. 

Taylor, 529 U.S. 362, 402-13 (2000) (setting out the standards applicable to a 

§ 2254 petition on the merits). As the Court said in Slack:

To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that 

reasonable jurists could debate whether (or, for that matter, agree 

that) the petition should have been resolved in a different manner 

or that the issues presented were “adequate to deserve 

encouragement to proceed further.” 

529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). Further, in order to 

obtain a certificate of appealability when dismissal is based on procedural grounds, 

a petitioner must show, “at least, that jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a constitutional right and 

that jurists of reason would find it debatable whether the district court was correct 

in its procedural ruling.” Id. at 484. 
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Cases No. 5:11cr19-RH-MJF and 5:19cv486-RH-MJF

Mr. Duhon has not made the required showing. This order thus denies a 

certificate of appealability. 

V

For these reasons, 

IT IS ORDERED:

1. Mr. Duhon’s motion for relief under 28 U.S.C. § 2255, ECF No. 70, is 

denied. 

2. A certificate of appealability is denied.

3. The clerk must close No. 5:19cv486.

SO ORDERED on March 6, 2020.

s/Robert L. Hinkle

United States District Judge