United States District Court, M.D. Florida, Tampa Division
C BUCKLEW, United States District Judge.
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
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).
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).
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).
March 29, 2017, Petitioner timely filed his § 2255
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 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.
Ground One: Actual Innocence
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
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.
Grounds Two, Three and Four: Ineffective Assistance of
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 ...