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Robinson v. United States

United States District Court, M.D. Florida, Tampa Division

May 10, 2017

JERRY JEROME ROBINSON Petitioner,
v.
UNITED STATES OF AMERICA

          ORDER

          SUSAN C. BUCKLEW United States District Judge.

         This case is before the Court on Petitioner Jerry Jerome Robinson's Motion to Vacate pursuant to 28 U.S.C. § 2255 (Civ. Doc. 1), Memorandum of Law in Support (Civ. Doc. 14), the Government's response (Civ. Doc. 16), to which Petitioner filed a reply (Civ. Doc. 18). After due consideration, the Court finds that an evidentiary hearing is not necessary, and Petitioner's motion should be denied.

         I. Background

         Petitioner pled guilty to felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (count one). On November 29, 2006, the Court sentenced Petitioner as an armed career criminal to a term of imprisonment of 180 months.[1] Petitioner did not appeal. However, Petitioner filed a 28 U.S.C. § 2255 motion that was denied by this Court on June 7, 2011. The Eleventh Circuit granted Petitioner's application for leave to file a second or successive § 2255 motion, finding that he had made a prima facie showing that the new rule of constitutional law announced in Johnson applied to him.

         II. Discussion

         Petitioner argues that his sentence as an armed career criminal was imposed in violation of the Constitution and laws of the United States and should be vacated. His claim is based on Johnson, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague, a decision that was made retroactive on collateral review by the Supreme Court in Welch v. United States, 136 S.Ct. 1257 (2016). Petitioner submits that the Florida offenses of lewd and lascivious act on a child under sixteen, aggravated battery with a deadly weapon, robbery and manslaughter, which along with delivery of a controlled substance, may have served as predicate offenses for his classification as an armed career offender no longer qualify as “violent felonies” and his armed career criminal sentence must be vacated.

         In response, the Government makes several arguments as to why the motion should be denied. First, the Government argues that Petitioner has not shown and cannot show that he was sentenced using the ACCA's residual clause or that the use of that clause made a difference in his sentence. Next, the Government argues Petitioner's claim is procedurally defaulted, and finally, that his claim is meritless. Because this Court agrees that Petitioner's claim is meritless, it will not address the Government's other arguments.

         Armed Career Criminal Act

         At sentencing, the Court found Petitioner was an armed career offender. Although neither the Court nor the PSR stated at sentencing which of his prior convictions provided the three predicate convictions for his ACCA sentence, Petitioner has at least three prior Florida state convictions for a violent felony or serious drug offense that satisfy the ACCA after Johnson: (1) Delivery of a Controlled Substance to a Person under Eighteen in violation of Florida Statute § 893.13(1)(c)(2) committed on March 19, 1987; (2) Robbery in violation of Florida Statute § 812.13 committed on August 19, 1987; and (3) Aggravated Battery with a Deadly Weapon in violation of Florida Statute § 784.05 committed on March 25, 1991.

         1. Delivery of a Controlled Substance to a Person Under Eighteen

         The Eleventh Circuit in United States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014), held that a conviction under Florida Statute § 893.13 is a serious drug offense under 18 U.S.C. § 924(e)(2)(A). In addition, Petitioner does not dispute that his drug conviction for delivery of a controlled substance to a person under eighteen qualifies as a serious drug offense under the ACCA.

         2. Robbery

         Petitioner, while recognizing that binding precedent in the Eleventh Circuit holds that a Florida state conviction for robbery categorically qualifies as a “violent felony, ” see United States v. Fritts, 841 F.3d 937, 944 (11th Cir. 2016), maintains that Fritts was wrongly decided and that after Johnson, his prior conviction for robbery no longer qualifies as a violent felony under the ACCA. A robbery conviction under Florida Statute § 812.13 is a crime of violence under the ACCA's elements clause. See id.; United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011); United States v. Seabrooks, 839 F.3d 1326, 1338-1345 (11th Cir. 2016).

         3.Aggravated ...


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