Bazemore v. United States

946 F. Supp. 2d 1376, 2013 WL 2284890, 2013 U.S. Dist. LEXIS 73344
CourtDistrict Court, S.D. Georgia
DecidedMay 23, 2013
DocketNo. 4:11-cv-259; No. 4:91-cr-176
StatusPublished
Cited by1 cases

This text of 946 F. Supp. 2d 1376 (Bazemore v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bazemore v. United States, 946 F. Supp. 2d 1376, 2013 WL 2284890, 2013 U.S. Dist. LEXIS 73344 (S.D. Ga. 2013).

Opinion

ORDER

B. AVANT EDENFIELD, District Judge.

I. INTRODUCTION

Before the Court is the Government’s Motion to Reconsider the Court’s order granting Levon Bazemore’s 28 U.S.C. § 2255 motion, ECF No. 35,1 and Bazemore’s Motion to Strike Government’s Motion to Reconsider. ECF No. 37. The Government asserts the Court made a clear error of law when it granted Bazemore’s habeas petition on grounds that the opinion in Stewart v. United States, 646 F.3d 856 (11th Cir.2011), restarted the one year statute of limitations on § 2255 claims for prisoners who succeed in having predicate convictions vacated after sentencing. Id. at 2-3. After much deliberation, the Court agrees and GRANTS the Government’s motion over Bazemore’s objections. Bazemore’s motion to strike is DISMISSED AS MOOT.

II. BACKGROUND

Bazemore’s journey down the long and winding habeas road began shortly after his conviction became final. See Bazemore v. United States, No. 4:96-cv-141, ECF No. 1 (S.D.Ga. June 20, 1996). About four years later, Bazemore succeeded in having vacated two state convictions used to enhance his federal sentence. See ECF No. 35 at 1. Two months after the vacatur Bazemore moved pursuant to § 2255 and Federal Rule of Civil Procedure 60(b) for a sentence reduction arguing he no longer qualified as a career criminal. Id. at ECF No. 68. This Court denied that petition as an uncertified second or successive habeas petition. Id. at ECF No. 72.

Bazemore filed the 2255 petition at issue here, his numerically third petition, on October 11, 2011, almost twenty years after conviction for various offenses related to his involvement in the notorious Ricky Jivens gang, ECF No. 1, and over a decade after he first moved for relief based on the vacatur of state convictions. Bazemore, No. 4:96-cv-141, ECF No. 68. In this petition, Bazemore asserted for the second time a right to resentencing based on the vacatur. Id. The Government disputed the timeliness of Bazemore’s petition since he filed it more than one year after the vacatur. See ECF No. 7.

This Court ultimately rejected the government’s argument, concluding instead that a new one year limitation clock ran from the date of the Stewart decision, thus rendering Bazemore’s petition timely. See ECF Nos. 17; 23 (adopting Magistrate Judge’s Report and Recommendation). The Government appealed, but the Eleventh Circuit dismissed the case for lack of jurisdiction because the grant of Bazemore’s 2255 petition “[is] not final and appealable” until Bazemore is resentenced. ECF No. 34 at 2. A date for resentencing has not yet been set.

III.ANALYSIS

As a threshold concern, the Court must consider whether it has the authority to reconsider its previous grant of Bazemore’s habeas petition. The answer is yes. Grants of 2255 petitions do [1378]*1378not become final, appealable orders until after resentencing. See United States v. Futch, 518 F.3d 887, 894 (11th Cir.2008). Since the order granting Bazemore’s petition is interlocutory, this Court “has plenary power over it.” Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1315 (11th Cir. 2000);2 see also Fed.R.Civ.P. 54(b) (stating that any non-final order “may be revised at any time before the entry of a judgment adjudicating all the claims.”). Reconsideration of non-final orders like Bazemore’s, moreover, is “not subject to the limitations of [Federal] Rule [of Civil Procedure] 59” because such orders are not judgments as defined by Rule 54(a). Toole, 235 F.3d at 1315; Fed.R.Civ.P. 54(a) (defining judgment as an order from which an appeal lies).

Having established that reconsideration is possible, the Court must now examine whether reconsideration is in fact appropriate in this case. It is. A brief summation of Stewart and the Supreme Court’s decision in Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005), is necessary to explain why.

“Johnson established that the basis for a [habeas] claim challenging a sentence predicated on faulty state convictions arises when the order vacating those predicate convictions issues.” Stewart, 646 F.3d at 856. From that, the Supreme Court further held that prisoners have a fresh one year statute of limitations to file Johnson claims that runs from the date the state convictions are vacated, assuming the prisoner exercises due diligence in having the convictions vacated.3 Id.

Stewart, on the other hand, answered the related but separate question of whether a numerically second habeas petition raising a Johnson claim is second or successive for purposes of the Antiterrorism and Effective Death Penalty Act (“AED-PA”). Id. at 858. The Eleventh Circuit held that when diligently pursued vacatur of a state conviction occurs after a prisoner’s initial habeas proceedings have concluded, a numerically second habeas petition premised on the vacatur is not subject to AEDPA’s second or successive restrictions. Id. at 865.

What Stewart did not address is any question of the timeliness of a numerically second petition raising a Johnson claim. Stewart's sole doctrinal contribution involved successiveness issues. Stewart did not hold that its decision restarted the one year limitations clock. In fact, Stewart had no occasion to address the timeliness of the petition before the Court because Stewart filed the numerically second petition whose denial he appealed barely a month after the vacatur of his state convictions. Id. at 858.

Bazemore likewise filed a numerically second habeas petition shortly after the state court vacated his convictions. But, at the time of that second petition, Bazemore suffered under the anden regime where Johnson claims did not exist and numerically second petitions raising Johnson claims failed as impermissibly successive. He had no Stewart to save him.

The coming of Stewart, however, cannot save Bazemore’s current habeas petition. As noted above, Stewart simply held that a numerically second petition raising a Johnson claim is not legally successive. Id. at 865. It did not speak to [1379]*1379the timeliness of petitions under AEDPA’s statute of limitations, or whether the rule it announced applied retroactively to situations like Bazemore’s, where prisoners timely raise otherwise valid Johnson claims yet have their petitions denied as impermissibly successive. To the

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Related

Levon Bazemore v. United States
595 F. App'x 869 (Eleventh Circuit, 2014)

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Bluebook (online)
946 F. Supp. 2d 1376, 2013 WL 2284890, 2013 U.S. Dist. LEXIS 73344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bazemore-v-united-states-gasd-2013.