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Lee v. United States

United States District Court, S.D. Florida

December 6, 2017

WINFRED ADDISON LEE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT fDE-281. REJECTING REPORT [DE-471 AND GRANTING MOTION TO VACATE. DENYING CERTIFICATE OF APPEALABILITY, SETTING RESENTENCING. AND CLOSING CASE

          PATRICIA A. SEITZ UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on two Reports of Magistrate Judge [DE-28 & 47]. Movant has filed objections [DE-29] to the first Report [DE-28], which recommends denying Movant's motion to vacate based on his ineffective assistance of counsel claims and his claim that the trial court erred during the colloquy about Movant's Sixth Amendment right to testify. As to the second Report, the Magistrate Judge recommends Movant's Amended Motion to Vacate be denied in light of Johnson v. United States. The Government has filed objections [DE-48] to the second Report.

         After de novo review, the Court adopts the first Report, rejects the second Report, and grants Movant's § 2255 motion. The Government concedes that, in light of Johnson, Movant no longer has the necessary three predicate offenses under the Armed Career Criminal Act (ACCA). As discussed more fully below, because Movant was sentenced using an erroneous Guideline range and an erroneous mandatory minimum sentence, he has established that he is entitled to relief from his ACCA enhanced sentence.

         I. The First Report and Movant's Objections

         The first Report addresses four claims: three ineffective assistance of counsel claims and a claim based on an alleged trial Court error during the colloquy about Movant's Sixth Amendment right to testify. As previously noted, the first Report recommends denying all four claims for relief. Movant raises five objections to the Report.

         First, Movant objects because the Report did not address Movant's claims which alleged ineffective assistance of counsel based on counsel's failure to argue at sentencing that Movant lacked the predicate offenses to qualify as an Armed Career Criminal. Movant argues that the Court must address all of his claims. However, the Report does address all of Movant's claims raised in his Motion [DE-1], his Amended Complaint [DE-7], and his Second Amended Complaint [DE-13]. See DE-28 at 24-26. Contrary to Movant's objection, he did not directly raise Johnson in these filings. Further, this claim is directly addressed in the second Report. Thus, this objection to the first Report is overruled.

         Second, Movant objects to the Report's finding that counsel was not ineffective for failing to predict the Supreme Court's decision in Descamps v. U.S., 570 U.S. -, 133 S.Ct. 2276 (2013). The Report found that failing to anticipate changes in the law did not amount to ineffective assistance of counsel. Movant argues that because Descamps did not announce a new rule, but instead clarified existing law, counsel's performance was deficient for not raising challenges to the application of the ACCA enhancement. However, the Eleventh Circuit has stated that:

In this circuit, we have a wall of binding precedent that shuts out any contention that an attorney's failure to anticipate a change in the law constitutes ineffective assistance of counsel.... That rule applies even if the claim based upon anticipated changes in the law was reasonably available at the time counsel failed to raise it.
Further, the rule that it is not ineffective assistance for an attorney to fail to foresee a change in the law applies even when the change is such that the forfeited issue was, in hindsight, a sure fire winner.

United States v. Ardley, 273 F.3d 991, 993 (11th Cir. 2001) (citations omitted). Consequently, Movant's counsel's performance was not deficient for failing to anticipate the holding in Descamps. Thus, this objection is overruled.

         Third, Movant objects to the finding that his prior burglary and battery offenses were committed on separate occasions. Movant contends that the offenses were committed simultaneously and, therefore, cannot constitute two separate predicate offenses under the ACCA. Movant, however, has not presented any evidence to establish that these offenses were committed simultaneously. Thus, this objection is overruled.

         Fourth, Movant objects to the finding that counsel was not ineffective for failing to call a witness who allegedly possessed exculpatory evidence. Movant alleges that the witness would have testified that he saw a prostitute purchase drugs from Movant, not the police officer. Thus, Movant argues this testimony would have established that the police officer lied about purchasing the drugs himself Movant, however, has not shown prejudice because the witness would have still testified that he saw Movant selling drugs. Thus, this objection is overruled.

         Finally, Movant objects to the finding that counsel was not ineffective for failing to give adequate legal advice about Movant's right to testify. Movant, however, has not pointed to any particular error and simply relies on the arguments he previously made. Such objections are insufficient under Local Magistrate Judge Rule 4(b), which requires that objections "specifically identify the portions of the proposed findings, recommendations, or report to which objection is made, the specific basis for such objections, and supporting legal authority." Thus, this objection is overruled. Consequently, the first Report of Magistrate Judge [DE-28] is affirmed and adopted.

         II. The Second Report and the Government's Objections

         After the Magistrate Judge issued his first Report, the Movant was permitted to file an amended memorandum of law in support of his § 2255 motion [DE-38], to which the Government responded [De-39], and to which Movant replied [DE-49]. In the amended motion, Movant, now represented by counsel, raised Johnson and argued that Movant no longer has the three predicate offenses necessary to qualify as an armed career criminal under the ACCA. The Report, however, recommends denying Movant's Johnson motion finding that Movant still qualifies as an armed career criminal under the ACCA. Movant did not file any objections to this second Report but the Government has. The Government does not object to the outcome of the second Report; it objects to the basis on which the Magistrate Judge makes ...


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