Eleventh Circuit: One Year is One Year for 2255 Filings

Facts: An attempt to use Johnson after the 2255 deadline

Fowler was found guilty of witness tampering and using a firearm in furtherance of a federal crime of violence, that being witness tampering.  He was found guilty on both counts and was sentenced to life imprisonment on witness tampering and ten years on the firearm charge.  Ultimately the witness tampering conviction was vacated and Fowler received life imprisonment on the firearm charge.  This was affirmed in 2014.  

In June 2016 Fowler filed a 2255 motion asking for relief under Johnson vs. United States.  The District Court dismissed the motion indicating that Johnson only invalidated the residual clause of the Armed Career Criminal Act, and did not impact 18 U.S.C. 924(c)’s element or residual clauses.  

Fowler filed a notice of appeal.  While the appeal was pending the Supreme Court heard arguments in United States vs. Davis, which also invalidated 18 USC 924(c)(3)(b).  At the same time Fowler received a certificate of appealability tio go forward on the question of “Whether the district court erred in dismissing Fowler's 28 U.S.C. § 2255 motion as untimely?”

Fowler’s appellate brief asked the court to treat his 2255 motion, which was based on Johnson, as one that was based on Davis.  But at the same time, Fowler filed a separate petition for a second or successive 2255 motion out of an abundance of caution.  

Court: One Year is One year, Johnson and Davis are Different

The court found this to be very simple overall:  Fowler filed his motion for relief here more than one year after his case was finalized.  That meant that his case was not timely filed.  Fowler’s attempts to invoke  Davis in order to salvage his appeal but the court struck that down as well; Davis announced a new rule of constitutional law and a claim based on Davis and a claim based on Johnson are two different things.  

Further, no alternative limitations periods are applicable here:  “The alternative limitations period based on a newly created right by the Supreme Court does not save his untimely filing because Johnson did not invalidate the statute under which Fowler was convicted, and a Johnson claim cannot be construed as a Davis claim.”

Ultimately his Johnson claim failed, but his petition for a second or successive 2255 motion based on Davis was granted by the court.