United States District Court, S.D. Florida
ORDER ADOPTING REPORT fDE-281. REJECTING REPORT
[DE-471 AND GRANTING MOTION TO VACATE. DENYING CERTIFICATE OF
APPEALABILITY, SETTING RESENTENCING. AND CLOSING
PATRICIA A. SEITZ UNITED STATES DISTRICT JUDGE
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.
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.
The First Report and Movant's Objections
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.
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.
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
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.
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.
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.
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.
The Second Report and the Government's
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 ...