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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ALEX WHITE, :

 Petitioner, : 

 CIVIL ACTION 16-00365-KD-M

v. :

 CRIMINAL ACTION 15-00138-KD-M

UNITED STATES OF AMERICA, :

 Respondent. :

REPORT AND RECOMMENDATION

Pending before the Court is Petitioner’s Motion to Vacate, 

Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 50). 

This action was referred to the undersigned Magistrate Judge for 

report and recommendation pursuant to 28 U.S.C. § 636(b) and 

Rule 8(b) of the Rules Governing Section 2255 Cases. It is now 

ready for consideration. The record is adequate to dispose of 

this matter; no evidentiary hearing is required. It is 

recommended that Petitioner’s Motion to Vacate (Doc. 50) be 

denied, that this action be dismissed, and that judgment be 

entered in favor of Respondent, the United States of America, 

and against Petitioner Alex White. It is further recommended 

that any certificate of appealability filed by Petitioner be 

denied as he is not entitled to appeal in forma pauperis. 

White was indicted on June 25, 2015 for two counts of 

possession with intent to distribute a controlled substance in 

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violation of 21 U.S.C. § 841(a)(1) (Counts 1-2), possessing a 

firearm as a felon in violation of 18 U.S.C. § 922(g)(1) (Count 

3), and using, carrying, or possession a firearm during or in 

relation to or in furtherance of a drug trafficking felony in 

violation of 18 U.S.C. § 924(c)(1) (Count 4) (Doc. 1). On 

October 30, 2015, White entered into a Plea Agreement in which 

he pled guilty to Counts 2 and 4 (Doc. 37). United States 

District Court Judge DuBose accepted Plaintiff’s plea and found 

him guilty (see Doc. 36). On March 11, 2016, Judge DuBose

sentenced Petitioner to the following: on Count 2, six months

imprisonment, three years of supervised release following his 

prison term, and an assessment of one hundred dollars; and on 

Count 4, seven years in prison, to run consecutive to the sixmonth sentence in Count 2, five years of supervised release, to 

run concurrent with the three-year sentence in Count 2, and a 

one hundred dollar assessment (see Doc. 48). Counts 1 and 3 

were dismissed (Doc. 48). White did not appeal his conviction 

or sentence (see Doc. 47).

Petitioner filed his Motion to Vacate on July 8, 2016, 

claiming he was improperly sentenced under the language of a 

United States Supreme Court decision, Johnson v. United States, 

576 U.S. ---, 135 S.Ct. 2551, 2557-58, 2563 (2015) (Doc. 50). 

White specifically claims that his firearm conviction does not 

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qualify as a “crime of violence” for purposes of sentencing 

enhancement (Doc. 50). Respondent filed a response on September 

9, 2016 asserting that this claim was without merit (Doc. 53). 

Though given the opportunity to reply to the response, as of 

this date, White has not done so (see Doc. 52).

Before taking up Petitioner’s claim, the Court notes that 

the Anti-Terrorism and Effective Death Penalty Act of 1996 

(hereinafter AEDPA) amended, in pertinent part, 28 U.S.C. § 

2255, to state as follows:

A prisoner in custody under sentence of a 

court established by Act of congress 

claiming the right to be released upon the 

ground that the sentence was imposed in 

violation of the Constitution or laws of the 

United States, or that the court was without 

jurisdiction to impose such sentence, or 

that the sentence was in excess of the 

maximum authorized by law, or is otherwise 

subject to collateral attack, may move the 

court which imposed the sentence to vacate, 

set aside or correct the sentence.

***

A 1-year period of limitation shall apply to 

a motion under this section. The limitation 

period shall run from the latest of . . . 

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. 

28 U.S.C. § 2255(f)(3). 

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Johnson, the decision on which White relies, was entered on 

June 26, 2015. The AEDPA limitations clock began running that 

day. Dodd v. United States, 545 U.S. 353, 357 (2005) (“What 

Congress has said in ¶ [(f)(3)] is clear: An applicant has one 

year from the date on which the right he asserts was initially 

recognized by this Court”). White filed this action on July 8, 

2016, so even if Johnson is applicable here, this action was not 

timely filed and is barred under AEDPA. Nevertheless, the Court 

will proceed to Petitioner’s claim.

White seeks resentencing under Johnson. Our Circuit’s 

Appellate Court, in In re Hines, explained Johnson this way:

In Johnson, the Supreme Court held that 

the residual clause of the [Armed Career 

Criminal Act (hereinafter ACCA)] is 

unconstitutionally vague because it creates 

uncertainty about how to evaluate the risks 

posed by a crime and how much risk it takes 

to qualify as a violent felony. Johnson, 

576 U.S. at ---, ---, 135 S.Ct. 2551, at 

2557-58, 2563. The Supreme Court made clear 

that its holding that the residual clause is 

void did not call into question the validity 

of the elements clause and the enumerated 

crimes of the ACCA’s definition of a violent 

felony. Id. at ---, 135 S.Ct. at 2563. In 

Welch v. United States, 578 U.S. ---, 136 

S.Ct. 1257, 194 L.Ed.2d 387 (2016), the 

Supreme Court held that Johnson announced a 

new substantive rule of constitutional law 

that applies retroactively to cases on 

collateral review.

In re Hines, 824 F.3d 1334, 1335-36 (11th Cir. 2016). 

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White claims that he was improperly sentenced in Count 4 

because 18 U.S.C. § 924(c)(1)(A), containing the phrase “crime 

of violence,” is akin to the language of 18 U.S.C. § 

924(e)(2)(B)(ii), criminalizing “conduct that presents a serious 

potential risk of physical injury to another,” that was 

overturned in Johnson (Doc. 50). 

The Court finds that Petitioner’s argument is misplaced. 

The statute under which White was sentenced states as follows: 

[A]ny person who, during and in relation to 

any crime of violence or drug trafficking 

crime [] for which the person may be 

prosecuted in a court of the United States, 

uses or carries a firearm, or who, in 

furtherance of any such crime, possesses a 

firearm, shall, in addition to the 

punishment provided for such crime of 

violence or drug trafficking crime . . . if 

the firearm is brandished, be sentenced to a 

term of imprisonment of not less than 7 

years.

18 U.S.C. § 924(c)(1)(A). Here, White was convicted and 

sentenced for possession of a weapon in furtherance of a drug 

trafficking crime—not because he had committed a crime of 

violence. Johnson is not applicable here. Petitioner’s claim 

otherwise is without merit. 

White has raised one claim in this petition. That claim is 

without merit and is barred by the AEDPA one-year limitations 

period. Therefore, it is recommended that the petition be 

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denied (Doc. 50), that this action be dismissed, and that 

judgment be entered in favor of Respondent, the United States of 

America, and against Petitioner, Alex White.

Furthermore, pursuant to Rule 11(a) of the Rules Governing 

§ 2255 Cases, the undersigned recommends that a certificate of 

appealability (hereinafter COA) be denied. 28 U.S.C. foll. § 

2255, Rule 11(a) (“The district court must issue or deny a 

certificate of appealability when it enters a final order 

adverse to the applicant”). The habeas corpus statute makes 

clear that an applicant is entitled to appeal a district court’s 

denial of his petition only where a circuit justice or judge 

issues a COA. 28 U.S.C. § 2253(c)(1). A COA may issue only 

where “the applicant has made a substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

When the merits of a claim are reached, a COA should issue only 

when the petitioner demonstrates "that reasonable jurists would 

find the district court's assessment of the constitutional 

claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 

484 (2000). Where a habeas petition is denied on procedural 

grounds, “a COA should issue [only] when the prisoner shows . . 

. 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 

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the district court was correct in its procedural ruling.” 

Slack, 529 U.S. at 484. 

As White filed this action beyond AEDPA’s one-year 

limitations period, a reasonable jurist could not conclude that 

this Court errs in dismissing this petition or that he should be 

allowed to proceed further. Slack, 529 U.S. at 484 (“Where a 

plain procedural bar is present and the district court is 

correct to invoke it to dispose of the case, a reasonable jurist 

could not conclude either that the district court erred in 

dismissing the petition or that the petitioner should be allowed 

to proceed further”). Furthermore, as the Court has found that 

Petitioner failed to assert sufficient facts to support a claim 

of constitutional error, “[t]he petitioner must demonstrate that 

reasonable jurists would find the district court's assessment of 

the constitutional claims debatable or wrong.” Slack, 529 U.S. 

at 484. It is suggested that White will not be able to make 

that showing.

CONCLUSION

It is recommended that Petitioner’s Motion to Vacate be 

denied (Doc. 50), that this action be dismissed, and that 

judgment be entered in favor of Respondent, the United States of 

America, and against Petitioner, Alex White. It is further 

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recommended that any certificate of appealability filed by 

Petitioner be denied as he is not entitled to appeal in forma 

pauperis. 

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on 

all parties in the manner provided by law. Any party who 

objects to this recommendation or anything in it must, within 

fourteen (14) days of the date of service of this document, file 

specific written objections with the Clerk of this Court. See

28 U.S.C. § 636(b)(1); FED.R.CIV.P. 72(B); S.D. ALA. L.R.72.4. 

In order to be specific, an objection must identify the specific 

finding or recommendation to which objection is made, state the 

basis for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed 

determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the Magistrate 

Judge is not specific.

DONE this 20th day of October, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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