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Leone v. United States

United States District Court, S.D. Florida

February 2, 2017

SALVATORE LEONE, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 95-00960-Cr-Lenard

         OMNIBUS ORDER DENYING MOVANT'S MOTION TO RECONSIDER (D.E. 27); GRANTING MOVANT'S REQUEST FOR A FINAL ORDER OF DISMISSAL (D.E. 27); ADOPTING AND SUPPLEMENTING THE COURT'S PRIOR NON-FINAL ORDER (D.E. 25); DISMISSING PURSUANT TO 28 U.S.C. § 2255(h) OR, ALTERNATIVELY, DENYING PURSUANT TO 28 U.S.C. § 2255(a) MOVANT'S MOTION TO VACATE (D.E. 5) AND AMENDED MOTION TO VACATE (D.E. 27)[1]; DENYING A CERTIFICATE OF APPEALABILITY, AND CLOSING CASE

          JOAN A. LENARD UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court on Movant Salvatore Leone's Motion to Reconsider, or, in the Alternative, Request for Final Order of Dismissal and Certificate of Appealability, (“Motion, ” D.E. 27), which the Court construes, in part, as an Amended Motion to Vacate pursuant to 28 U.S.C. § 2255.[2] The United States filed a Response on September 7, 2016, (“Response, ” D.E. 28), to which Movant did not Reply. Upon review of the Motion, Response, and the record, the Court finds as follows.

         I. Relevant Background

         In November of 1996, Movant was adjudicated guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Leone, 95-00960-Cr-Lenard (S.D. Fla. Nov. 6, 1996). The United States Probation Office issued a Presentence Investigation Report (“PSI”) listing twenty-two prior convictions[3] and recommending that Movant receive a sentence enhancement pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Based on information contained in the PSI, the Government filed a Motion for Upward Departure. 95-00960-Cr-Lenard, D.E. 93 (S.D. Fla. Aug. 30, 1996). Movant filed “objections” to the PSI in which he conceded that his prior burglary convictions “are considered ‘violent felonies' under the [ACCA], ” but argued that a sentence at the low end of the guidelines range was appropriate. 95-00960-Cr-Lenard, D.E. 96 (Sept. 20, 1996). Leone objected solely to any upward departure of the guidelines range.[4] See Tr. of Nov. 1, 1996 Sentencing Hr'g at 3:16-20, 95-00960-Cr-Lenard, D.E. 111 (Mar. 7, 1997). At the November 1, 1996 sentencing hearing, the Court sustained Movant's objection, denied the Motion for upward departure, adopted the factual findings and guideline applications contained in the PSI, and sentenced Movant within the guidelines.[5] See id. at 26:4-13, 29:7-9; see also 95-00960-Cr-Lenard, D.E. 106 (Nov. 15, 1996).

         In Johnson v. United States, the United States Supreme Court held that the ACCA's residual clause is unconstitutionally vague. 135 S.Ct. 2551, 2563 (2015). In Welch v. United States, the Supreme Court held that Johnson announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review. 136 S.Ct. 1257, 1268 (2016).

         After the Supreme Court issued its decision in Welch, 136 S.Ct. at 1257, Movant filed an application under 28 U.S.C. § 2255(h) seeking permission from the Court of Appeals to file a second or successive 2255 motion.[6] On June 15, 2016, the Eleventh Circuit Court of Appeals granted Movant's application to file a second or successive 2255 motion, finding that because the district court made no explicit findings at the time of sentencing, Leone had “made a prima facie showing that he has raised a claim that meets the statutory criteria set forth in 28 U.S.C. § 2255[.]” (D.E. 1 at 9.)

         On June 24, 2016, Movant, who is now represented by counsel, filed his second or successive 2255 Motion in this Court. (See D.E. 5.) Therein, Movant argued that the Court enhanced his sentence under the ACCA's now-void residual clause, and that his prior burglary convictions do not qualify as “violent felonies” under the ACCA's “enumerated” or “elements” clauses. (See id.) Movant based his argument on the legal assumption that Descamps v. United States, 133 S.Ct. 2275 (2013) and Mathis v. United States, 136 S.Ct. 2243, 2257 (2016), apply retroactively when determining whether his prior convictions qualify as predicate offenses under the ACCA's elements and enumerated clauses. (See id. at 5-17.)

         On August 31, 2016, the Court entered a Sua Sponte Non-Final Order Dismissing Without Prejudice Movant's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255.[7] (“Non-Final Order, ” D.E. 25.) The Court concluded that Descamps and Mathis did not apply retroactively to second or successive 2255 motions. (Id. at 21.)

Other than the new rule made retroactive by the Supreme Court (i.e., Johnson), the Court must apply the law as it existed at the time of sentencing to determine whether the Movant's sentence was enhanced under the ACCA's residual clause. See Ziglar v. United States, ___ F.Supp.3d ___, 2016 WL 4257773, at *7 (M.D. Ala. 2016) . . . . Here, the only argument Movant advances is that he was sentenced under the residual clause if Descamps applies retroactively. Because it does not, Movant has failed to demonstrate that he was “sentenced under the residual clause.” Accordingly, his Section 2255(h) application to file a second or successive motion must be dismissed for lack of jurisdiction.

(Id. at 22-23.) The Court provided Movant fourteen days to file an Amended 2255 Motion that stated a pure Johnson claim-that is, one that does not rely on the retroactivity of Descamps or Mathis-or to request the entry of a final order of dismissal. (Id. at 24.)

         On August 31, 2016, Movant filed the instant Motion for Reconsideration or, alternatively, for a final order of dismissal and a certificate of appealability. (D.E. 27.)

         II. Legal Standard

         Although Movant does not specify the legal framework under which he seeks reconsideration, Federal Rule of Civil Procedure 60(b) provides that “[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for” certain specified reasons. Fed.R.Civ.P. 60(b). Although Rules 60(b)(1) through (5) are inapplicable here, Rule 60(b)(6) is a catch-all provision that permits a court to reconsider an order for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6).

         “Federal courts grant relief under Rule 60(b)(6) only for extraordinary circumstances.” Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1288 (11th Cir. 2000) (citing High v. Zant, 916 F.2d 1507, 1509 (11th Cir. 1990)); see also Booker v. Singletary, 90 F.3d 440, 442 (11th Cir. 1996) (“The vacation of a judgment under Rule 60(b)(6) is an extraordinary remedy.”). “To warrant relief under Rule 60(b)(6), not only must Plaintiffs show sufficiently extraordinary circumstances, but also that absent such relief, an extreme and unexpected hardship will result.” Doe v. Drummond Co., 782 F.3d 576, 612 (11th Cir. 2015) (citation and internal quotation marks omitted). Additionally:

The “purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence.” Z.K. Marine Inc. v. M/V Archigetis, 808 F.Supp. 1561, 1563 (S.D. Fla. 1992). In particular, there are three major grounds which justify reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See Offices Togolais Des Phosphates v. Mulberry Phosphates, Inc., 62 F.Supp.2d 1316, 1331 (M.D. Fla. 1999); See also Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994). In order to reconsider a judgment there must be a reason why the court should reconsider its prior decision, and the moving party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Sussman, 153 F.R.D. at 694. A “motion for reconsideration should not be used as a vehicle to present authorities available at the time of the first decision or to reiterate arguments previously made.” Z.K. Marine Inc., 808 F.Supp. at 1563. Instead, a motion for reconsideration is appropriate where the “Court has patently misunderstood a party, or has made a decision outside of the adversarial issues presented to the Court by the parties, or has made an error not of reasoning, but of apprehension . . . . Such problems rarely arise and the motion to reconsider should be equally rare.” Z.K. Marine Inc., 808 F.Supp. at 1563 (citing Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983); Moog, Inc. v. United States, No. 90-215E, 1991 WL 255371, at *1, 1991 U.S. Dist. Lexis 17348, at *2 (W.D.N.Y. Nov. 21, 1991)).

Burger King Corp. v. Ashland Equities, Inc., 181 F.Supp.2d 1366, 1369 (S.D. Fla. 2002).

         III. Discussion

         Movant argues that the Court should reconsider its Non-Final Order dismissing his Motion for lack of jurisdiction for two reasons. First, Movant argues that by requiring him to demonstrate that he was sentenced under the ACCA's residual clause in order to satisfy 28 U.S.C. § 2255(h), the Court held Movant to a higher standard than the one elucidated by the Eleventh Circuit in In re Adams, 825 F.3d 1283 (11th Cir. 2016) and In re Rogers, 825 F.3d 1335 (11th Cir. 2016), i.e., the “clear or unclear” test. (Mot. at 1-2.) Second, he argues that the record establishes that he was sentenced under the ACCA's residual clause, citing to a statement the Assistant U.S. Attorney made at his sentencing hearing. (Id. at 2-3.) The Court rejects these arguments.

         a. The Court applied the correct legal standard.

         First, Movant argues that by requiring him to establish that he was sentenced under the ACCA's residual clause, the Court applied an incorrect standard in its Non- Final Order. (Mot. at 1.) He argues instead that the Court is bound by the “clear or unclear” test elucidated by the Eleventh Circuit in In re Rogers, which “turns on the sentencing court's findings and on-point binding precedent regarding whether a particular crime categorically qualifies under a still-valid ACCA clause offense (precedent that includes Descamps).” 825 F.3d at 1339-40. Under that test:

When neither the sentencing court's finding on which ACCA clause or clauses applied nor binding on-point precedent forecloses an applicant's assertion that his sentence arose under the ACCA's residual clause, we look to Descamps “to ensure we apply the correct meaning of the ACCA's words.” Adams, 825 F.3d at 1286. And at this point, unless post-Descamps binding precedent clearly resolves the residual clause ambiguity the applicant has demonstrated, his application “contain[s]” a Johnson claim such that his application is due to be granted. See 28 U.S.C. § 2255(h).

Id. at 1340. Applying this test, Movant argues that: (1) it is unclear whether the sentencing court relied on the residual clause when applying the ACCA enhancement and, therefore, the Court can look to Descamps; (2) under Descamps, the Court must look only to the “‘the statutory definitions'-i.e., the elements-of a defendant's prior offenses, and not' to the particular facts underlying those convictions[, ]'” 133 S.Ct. at 2283 (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)); (3) Florida's burglary statute is non-generic and therefore a conviction under that statute cannot be an ACCA predicate offense under the enumerated clause; (4) Florida burglary is not an ACCA predicate offense under the elements clause; and therefore (5) applying Descamps retroactively establishes that his sentence was enhanced under the now-void residual clause. (See D.E. 5 at 5-17.)

         However, as explained in Ziglar, ___ F.Supp.3d at ___, 2016 WL 4257773, at *12, the position advocated by Movant appears “hopelessly irreconcilable” with the holdings of the Eleventh Circuit in In re Thomas, 823 F.3d 1345 (11th Cir. 2016), In re Griffin, 823 F.3d 1350 (11th Cir. 2016), and In re Hires, 825 F.3d 1297 (11th Cir. 2016). In those cases, the Eleventh Circuit denied applications for leave to file a second or successive 2255 motion on the grounds that Descamps does not apply retroactively “for purposes of a second or successive § 2255 motion.” In re Hires, 825 F.3d at 1303. This is because “Descamps is a rule of statutory interpretation, not constitutional law.” In re Griffin, 823 F.3d at 1356 (citing Ezell v. United States, 778 F.3d 762, 763 (9th Cir. 2015) (“[T]he the Supreme Court did not announce a new rule of constitutional law in Descamps. Rather, it clarified-as a matter of statutory interpretation-application of the ACCA in light of existing precedent.”), cert. denied, ___ U.S. ___, 136 S.Ct. 256, 193 L.Ed.2d 212 (2015); In re Jackson, 776 F.3d 292, 296 (5th Cir. 2015) (“Nothing in Descamps indicates that its holding announced a new rule that was constitutionally based, and Descamps did not announce that its holding applied retroactively to cases on collateral review.”); see also Mays v. United States, 817 F.3d 728, 734 (11th Cir. 2016) (“As the Supreme Court and other circuits have recognized, Descamps did not announce a new rule-its holding merely clarified existing precedent.”) (citations omitted). As such, the applicants in Thomas, Griffin, and Hires failed to make a prima facie showing that their second or successive 2255 motions contained “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2) (emphasis added).

         This Court is bound by the holdings in Thomas, Griffin, and Hires.[8] Because Descamps is “not retroactive for purposes of a second or successive § 2255 motion[, ]” In re Hires, 825 F.3d at 1303; In re Griffin, 823 F.3d at 1356; In re Thomas, 823 F.3d at 1349; In re Jackson, 776 F.3d at 296; Ezell, 778 F.3d at 763; the Court agrees with Ziglar that the “clear or unclear” test enunciated in Rogers is “dicta or, at the very least, consists of pronouncements that are only applicable to the circuit's prima facie showing analysis and not to the district court's de novo review.” F.Supp.3d at ___, 2016 WL 4257773, at *12. Accordingly, the Court finds that Movant is not entitled to reconsideration of the Court's Non-Final Order on the grounds that the Court applied an incorrect standard.

         By requiring Movant to show that he was sentenced under the residual clause, the Court applied the correct standard. As the Eleventh Circuit stated in In re Hires, “what matters here is whether, at sentencing, [Movant's] prior convictions qualified pursuant to the residual clause, which would render his sentence subject to successive § 2255 challenge under Johnson, or pursuant to the elements clause, which would not.” 825 F.3d at 1303.

         At least five of Movant's burglary convictions qualified as ACCA predicates under the “enumerated” clause at the time of sentencing. In Taylor v. United States, the Supreme Court held “an offense constitutes ‘burglary' for purposes of a § 924(e) sentence enhancement if either its statutory definition substantially corresponds to ‘generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.” 495 U.S. 575, 602 (1990). The Court defined “generic burglary” as “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 599. At the time Movant was convicted of burglary, Florida law defined the offense as “entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Fla. Stat. § 810.02 (1989). Florida law further defined “structure” as “a building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.” Fla. Stat. § 810.011(1) (1989). Because Florida burglary could be committed by entering the curtilage of a building or structure, it did not qualify as generic burglary. James v. United States, 550 U.S. 192, 212 (2007). However, that does not resolve whether the Court could have utilized the modified categorical approach to determine that Movant's burglary convictions qualified as a generic offense under the ACCA's enumerated clause.

         At the time of Movant's sentencing in November 1996, the law in the Eleventh Circuit permitted the sentencing court to consider the information in the presentence investigation report to determine whether a defendant's prior burglary convictions under a non-generic burglary statute constituted “generic” burglary for purposes of applying the ACCA enhancement under the enumerated clause. See United States v. Adams, 91 F.3d 114, 116 (11th Cir. 1996). In Adams, the Eleventh Circuit adopted the position of the First, Fifth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuit Courts of Appeal and held that, post-Taylor, “the government may use some means, other than a jury instruction, to establish that the prior conviction resulted from a generic burglary.” Id. The Eleventh Circuit further held that information contained in the defendant's PSI regarding the his prior burglary convictions established that they were, in fact, generic burglaries under Taylor “and therefore those burglaries were properly counted for purposes of the § 924(e) enhancement.”[9] Id.

         Here, too, Movant's PSI unequivocally establishes that at least three of his prior convictions for burglary under Florida law constitute “generic” burglary for purposes of the ACCA's enumerated clause. “Although the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U.S. at 598 (citations omitted). As described in the PSI, Movant's prior convictions for Florida burglary include (but are not limited to):

a. [First ACCA predicate: April 19, 1989-Burglary of a Dwelling]
According to the arrest affidavit, the defendant . . . was observed via a surveillance camera exiting an apartment located at 9678 Fontainbleau Blvd. Apartment #408. The defendant took a television and a V.C.R. and fled the scene with [a co-defendant]. . . .
On May 22, an information was filed . . . charging the defendant with (Count One) Burglary of Structure and (Count Two) Grand Theft-Third Degree. On September 11, 1989, the defendant entered a plea of nolo contendere. He was adjudicated guilty as to each Counts One and Two. (PSI ¶ 30.)
b. [Second, third, and fourth ACCA predicates: June 23, 1989-Burglary of Structure offenses]
On July 23, 1989, the defendant, using the name John Christopher Meinke, was found hiding in the northeast room at For Kids Sake located at 1933 NE 163rd Street. The burglar alarm to the business had been activated. Investigation revealed that the defendant had burglarized the business at the upper part of the east wall in order to gain entry into 1925 NE 163rd Street (Sangs Chinese Food) and broke a hole in the upper part of the east wall to gain entry into 1931 N.W. [sic] 163rd Street (Edgepark Surgical, Inc.) and then broke in to the above business. In all three businesses, the defendant placed money and property into bags. . . .
On July 14, 1989, . . . an information was filed charging the defendant with (Count One) Burglary of Structure (Count Two), Grand Theft-Third Degree (Count Three) Burglary of Structure, (Count Four) Petit Theft (Count Five) Burglary of Structure, and (Count Six) Obstructing Justice. On September 11, 1989, the defendant entered a plea of nolo contedere, he was adjudicated ...

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