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Nesbitt v. United States

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

December 1, 2017

SHAMORCUS BRANDAN NESBITT
v.
UNITED STATES OF AMERICA

          ORDER

          SUSAN C BUCKLEW, United States District Judge.

         This cause comes before the Court on Petitioner Shamorcus Brandan Nesbitt's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, as well as supporting memorandum. (Civ. Docs. 1, 2). The Government filed a response to the § 2255 motion to which it attached an affidavit by Stephen Crawford, Petitioner's trial and appellate counsel (Civ. Doc. 11). Petitioner filed a reply to which he attached a letter from Stephen Crawford (Civ. Doc. 12). Because the Government did not address all of Petitioner's arguments in its response, the Court directed the Government to file a sur-reply. (Civ. Docs. 15, 16). The Court then granted Petitioner's motion for leave to file a response to the Government's sur-reply. (Civ. Docs. 17, 18, 19). Upon review, the Court grants in part and denies in part Petitioner's § 2255 motion.[1]

         I. Background

         On February 12, 2015, a jury found Petitioner guilty of conspiracy to commit robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); robbery, in violation of 18 U.S.C. § 1951(a) (Count II); brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count III); and possession of a firearm and ammunition after being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) (Counts IV and V). (Crim. Doc. 89).

         Petitioner's Presentence Investigation Report (“PSR”), classified him as an armed career criminal as defined in United States Sentencing Guideline (“U.S.S.G.”) §4B1.4 because the instant offense at conviction (Counts Four and Five) was a violation of 18 U.S.C. § 922(g) and he had six prior violent felony convictions. (Crim. Doc. 101, ¶¶ 42-44). These six prior violent felonies were 1) a 2004 conviction for aggravated assault with a firearm, 2) three 2005 convictions for burglary of a structure committed on different occasions, and 3) two 2008 convictions for burglary of an unoccupied structure committed on different occasions. (Crim. Doc. 101, ¶ 42). Petitioner's classification as an armed career criminal enhanced his total offense level from 22 to 33. (Crim. Doc. 101, ¶¶ 41-44). Petitioner's criminal history score was 21 resulting in a criminal history category of VI. Petitioner's adjusted offense level of 33 with a criminal history category of VI resulted in an advisory guideline sentencing range of 235-293 months as to Counts I, II, IV and V. (Crim. Doc. 101, ¶ 116). Further, Petitioner's term of imprisonment on Count III (brandishing a firearm during the robbery) was required to be imposed consecutively to any other counts pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). (Crim. Doc. 101, ¶ 115).

         Petitioner's trial counsel objected to the PSR, arguing that Petitioner's burglary convictions were not violent crimes and therefore Petitioner was not an armed career criminal under U.S.S.G. §4B1.4. (Crim. Doc. 101, pp. 120-121). However, the Court overruled the objection and sentenced Petitioner as an armed career criminal to 348 months in prison, consisting of concurrent terms of 240 months on Counts I and II and 264 months on Counts IV and V, followed by a consecutive term of 84 months on Count III. (Crim. Docs. 106, 107). Petitioner timely appealed his conviction and sentence, and the Eleventh Circuit affirmed on September 30, 2016. (Crim. Docs. 110, 131, 138).

         On March 29, 2017, Petitioner timely filed his § 2255 motion.

         II. Discussion

         Petitioner raises four grounds for relief in his § 2255 motion. In Ground One, Petitioner argues that he is “actually innocent” of the armed career criminal enhancement in light of the United States Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Mathis v. United States, 136 S.Ct. 2243 (2016). (Civ. Doc. 2, pp. 2-4). In Ground Two, Petitioner contends that his appellate counsel was ineffective because he failed to argue on appeal that Petitioner's Florida burglary convictions could not support his armed career criminal enhancement. (Civ. Doc. 2, pp. 5-6). In Ground Three, Petitioner argues that his trial counsel was ineffective for failing to properly advise Petitioner of his sentencing exposure. (Civ. Doc. 2, pp. 7-9). Lastly, in Ground Four, Petitioner contends that his trial and appellate counsel[2] were ineffective due to the cumulative effect of their errors during pre-trial, trial, sentencing, and appeal. (Civ. Doc. 2, pp. 10-12). The Court addresses each argument in turn.

         A. Ground One: Actual Innocence

         The Government concedes that Petitioner's Florida burglary convictions no longer qualify as Armed Career Criminal Act (“ACCA”) predicates. (Civ. Doc. 12, pp. 5-8). See United States v. Esprit, 841 F.3d 1235, 1241 (11th Cir. 2016) (holding that no conviction under Florida's burglary statute can serve as an ACCA predicate offense); Johnson v. United States, 135 S.Ct. 2551 (2015) (holding that the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague); Welch v. United States, 136 S.Ct. 1257 (2016) (making the Johnson decision retroactive on collateral review).

         Petitioner does not have the three necessary qualifying predicate convictions under the ACCA, and therefore, no longer qualifies as an armed career criminal. Accordingly, Petitioner's § 2255 motion is granted as to Ground One. Petitioner's sentence is set aside, and Petitioner will be resentenced.

         B. Grounds Two, Three and Four: Ineffective Assistance of Counsel

         In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court created a two-part test for determining whether a defendant received ineffective assistance of counsel. First, a defendant must demonstrate that his attorney's performance was deficient, which requires a “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Id. Second, a defendant must ...


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