IN	THE	UNITED	STATES	DISTRICT	COURT	FOR	THE

SOUTHERN	DISTRICT	OF	ALABAMA

SOUTHERN	DIVISION

UNITED	STATES	OF	AMERICA )

v. ) CRIMINAL	NO.		11-00268-CB-B

CIVIL	NO.	15-00419-CB-B

GERMAIN	SNIPES, )

Petitioner/Defendant. )

ORDER

This	matter	is	before	the	Court	on	a	motion	to	vacate,	set	aside,	or	correct	

sentence	pursuant	to	28	U.S.C.S	§	2255	filed	by	petitioner	Germain	Snipes,	a	person	

in	federal	custody.		(Doc.	28.)		In	response,	the	government	has	moved	to	dismiss	

the	motion	as	time	barred.	(Doc.	32.)		Snipes	has	filed	a	response	to	the	

government’s	motion	to	dismiss.		(Doc.	35.)		In	light	of	recent	Eleventh	Circuit	case	

law,	it	is	clear	that	the	action	is	barred	by	§	2255’s	limitation	period.

Background

Petitioner	Germain	Snipes	pled	guilty	to	a	one-count	indictment	charging	a	

violation	of	18	U.S.C.	§	922—felon	in	possession	of	a	firearm.				 At	sentencing	the	

Court	found	the	Snipes was	subject	to	an	enhanced	base	offense	level	under	U.S.S.G.	

§	2K2.1(a)(2)	because	he	“committed	.	.	.	the	instant	offense	subsequent	to	

sustaining	at	least	two	felony	convictions	of	either	a	crime	of	violence	or	a	

controlled	substance	offense.”		(Presentence	Investigation	Report	(PSR)	¶	15,	Doc.	

21.)1		Snipes	was	sentenced	to	94	months	imprisonment,	a	3-year	supervised	

																																																							 1 According	to	the	PSR,	which	was	adopted	without	objection,	Snipes	had	

prior	felony	convictions	for	possession	of	cocaine,	manslaughter,	and	third-degree	

robbery.	(Sentencing	Tr.	2,	Doc.	31;	PSR	¶¶	29,	32	&	33.)		

Case 1:11-cr-00268-CB-B Document 36 Filed 12/07/15 Page 1 of 5
2

release	term,	and	a	$100	special	assessment.		The	judgment	of conviction	was	

entered	on	June	28,	2012.		Snipes	did	not	appeal.

More	than	three	years	later,	on	August	14,	2015,	Snipes	filed	the	instant	§	

2255	motion.		The	only	claim	asserted	in	the	motion	is	a	challenge	to	the	

enhancement	of	Snipes’	sentence	based	on	prior	felony	convictions	of	crimes	of	

violence.		Snipes	argues	that	the	United	States	Sentencing	Guidelines’	definition	of	a	

crime	of	violence is	unconstitutionally vague.		This claim	is	based	on	the	Supreme	

Court’s	recent	decision	in	United	States	v.	Johnson,	___	U.S.	____,		135	S.Ct	2551	(2015),	

which	held	that	a	nearly-identical	definition	of	“violent	felony”	in	the	Armed	Career	

Criminal	Act,	18	U.S.C.	§	922(e)	was	unconstitutionally	vague.				The	government	has	

moved	to	dismiss	Snipes’	motion	because	it	was	not	filed	within	one	year	of	the	date	

judgment	became	final.2		See	28	U.S.C.	§	2255(f)(1).			Snipes	argues	that	the	Johnson	

decision	restarted	the	one-year	limitations	period.		See id.	§	2255(f)(3).

Legal	Analysis

A	motion	for	relief	under	section	2255	must	be	filed	within	one	year	of	the	

latest	of	four	potential	dates:		

(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	movant	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

																																																							 2 Judgment	became	final	14	days	after	the	entry	of	judgment,	when	the	time	

for	filing	an	appeal	expired.		Mederos	v.	United	States,	218	F.3d	1252,	1253	(11th Cir.	

2000);	Fed.	R.	App.	P.	4(b)(1)	(14	days	to	file	notice	of	appeal	in	criminal	action).

Case 1:11-cr-00268-CB-B Document 36 Filed 12/07/15 Page 2 of 5
3

(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(f).		Snipes	relies	on	subsection	(3),	which	applies	only	if	Johnson

“newly	recognized”	the	right	that	would	entitle	Snipes	to	relief	and that	right	was	

made	retroactively	applicable	to	cases	on	collateral	review.		Unfortunately	for	

Snipes,	the	Eleventh	Circuit	has	held	that	right	recognized	in	Johnson	applies	only	to	

statutory	sentences	imposed	under	the	Armed	Career	Criminal Act (ACCA),	and	does	

not	apply	to	sentence	enhancements	under	the	Sentencing	Guidelines.	

In	Johnson,	the	defendant	challenged	the	enhancement	of	his	sentence	under	

the	ACCA,	which	increases	the	minimum	and	maximum	sentence	for	a	felon-inpossession	conviction	if	the	defendant	has	three	or	more	prior	convictions	for	a	

“serious	drug	offense”	or	a	“violent	felony.”		18	U.S.C.	§	924(e)(1).		The	Court	held	

that	ACCA’s	definition	of	“violent	felony”	was,	in	part,	unconstitutionally	vague.		

Specifically,	it	struck	the	statute’s	“residual	clause”	which	defined	“violent	felony”	to	

include	conduct	that	“otherwise	involves	conduct	that	presents	a	serious	potential	risk	

of	physical	injury	to	another.”		Johnson,	135	S.	Ct.	2555-56	(quoting	18	U.S.C.	§	

924(e)(1) (emphasis	added)).		

In	this	case,	Snipes	argues	that	his	prior	convictions	do	not	qualify	as	crimes	

of	violence	under	Johnson and	therefore	cannot	be	used	to	enhance	his	sentence	

under	the	United	States	Sentencing	Guidelines.		Stated	differently,	the	argument	is	

that	if	the	ACCA	residual	clause	is	unconstitutionally	vague,	then	the	identical	

Case 1:11-cr-00268-CB-B Document 36 Filed 12/07/15 Page 3 of 5
4

language	in	the	Sentencing	Guidelines3 must	be	also.4		Not	so,	says	the	Eleventh	

Circuit.		“The	vagueness	doctrine,	which	 ‘rest[s]	on	[a]	lack	of	notice,’ does	not	apply	

to [the] advisory	[sentencing]	guidelines.”		United	States	v.	Matchett,	802	F.3d	1185,	

1194	(11th	Cir.	2015).		“Because	there	is	no	constitutional	right	to	sentencing	

guidelines—or,	more	generally,	to	a	less	discretionary	application	of	sentences	than	

that	permitted	prior	to	the	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	(quoting	United	States	v.	Wivell,	893	F.2d	156,	160	(8th	

Cir. 1990)).

In	sum, the	Eleventh	Circuit	has	held	that	the	Supreme	Court’s	decision	in

Johnson does	not	apply	to	challenges	to	sentence	enhancements	based	on	the	United	

States	Sentencing	Guidelines.5		For	that	reason,	Snipes	cannot	rely	on	Johnson as	the	

date	on	which	the	limitations	period	began	to	run.		The	government’s	motion	to	

dismiss	is	GRANTED.

Certificate	of	Appealability	Denied

Rule	11	of	the	Rules	Governing	Section	2255	Proceedings	requires	that	this	

Court	“issue	or	deny	a	certificate	of	appealability	when	it	enters	a	final	order	

																																																							 3 As	defined	by	U.S.S.G.	§	4B1.2(a)(2),	a	crime	of	violence	includes	a	felony	

that	“otherwise	involves	conduct	that	presents	a	serious	potential	risk	of	physical	

injury	to	another.”

4 The	government	also	takes	this	position,	though	it	does	not	agree	that	

Johnson is	retroactively	applicable	to	cases	on	collateral	review. The	government	

took	the	same	position	in	Matchett,	but	the Eleventh	Circuit	rejected	the	

government’s	concession	that	the	Guidelines	residual	clause	was	unconstitutionally	

vague.		Matchett,	802	F.3d	at	1194	(“[c]onfessions	of	error	do	not	relieve	this	Court	

of	the	performance	of	the	judicial	function”).

5 Whether	the	Guidelines	are	subject	to	vagueness	challenges	is	the	subject	of	

disagreement	among	the	Circuits.		See United	States	v.	Madrid,	___	F.3d	___,	No.	14-

2159,	2015	WL	6657060,	*5	n.	10	(10th Cir.	Nov.	2,	2015)	(discussing	cases).

Case 1:11-cr-00268-CB-B Document 36 Filed 12/07/15 Page 4 of 5
5

adverse	to	the	applicant.”		“A	certificate	of	appealability	may	be	issued	only	where	

the	applicant	has	made	a	‘substantial	showing	of	the	denial	of	a	constitutional	

right.’”	Hardwick	v.	Singletary,	126	F.3d	1312,	1313	(11th	Cir.	1997).		This	standard	

is	“materially	identical”	to	the	standard	governing	certificates	of	probable	cause	

under	the	former	28	U.S.C.	§	2253.		Id.;	accord	Slack	v.	McDaniel,	579	U.S.	473	(2000).		

In	the	context	of	certificates	of	probable	cause,	the	Supreme	Court	has	defined	the	

requirement	of	“a	substantial	showing	of	the	denial	of	a	federal	right”	to	mean	that	

the	applicant	must	raise	an	issue	that	is	debatable	among	jurists	of	reason.		Barefoot	

v.	Estelle,	463	U.S.	880,	893	n.	4	(1983).	 The	claim	asserted	here	does	not	meet	this	

threshold.		Accordingly,	the	certificate	of	appealability	is	DENIED.

DONE and	ORDERED this	the	7th day	of	December,	2015.

s/Charles	R.	Butler,	Jr.

Senior	United	States	District	Judge

Case 1:11-cr-00268-CB-B Document 36 Filed 12/07/15 Page 5 of 5