United States District Court, S.D. Florida
ORDER DECLINING TO ADOPT REPORT AND
MICHAEL MOORE CHIEF UNITED STATES DISTRICT JUDGE
CAUSE came before the Court upon Petitioner Albert
Williams's Motion to Vacate, Set Aside, or Correct
Sentence Under 28 U.S.C. Section 2255 (“Motion”)
(ECF No. 12). THIS MATTER was referred to the Honorable
Patrick A. White, United States Magistrate Judge, who issued
a Report (ECF No. 15), recommending that (1) Petitioner's
motion be granted and (2) no certificate of appealability be
issued. No objections have been filed and the time to do so
has passed. For the reasons that follow, the Court DECLINES
TO ADOPT Magistrate Judge White's Report and
district court may accept, reject, or modify a magistrate
judge's report and recommendation. See 28 U.S.C.
§ 636(b)(1). Pursuant to Federal Rule of Civil Procedure
72(b)(3), the Court “must determine de novo any part of
the magistrate judge's disposition that has been properly
objected to.” Fed.R.Civ.P. 72(b)(3); see also
28 U.S.C. § 636(b)(1)(C) (“A judge of the court
shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made.”). However, “the
district court will review those portions of the R & R
that are not objected [to] under a clearly erroneous
standard.” Liberty Am. Ins. Group, Inc. v.
WestPoint Underwriters, L.L.C., 199 F.Supp.2d 1271, 1276
(M.D. Fla. 2001); accord Macort v. Prem, Inc., 208
Fed.Appx. 781, 784 (11th Cir. 2006).
was convicted for possession of a firearm and ammunition by a
convicted felon in violation of 18 U.S.C. § 922(g)(1).
On June 22, 1998, Petitioner was sentenced as an armed career
criminal under 18 U.S.C. § 924(e), based on three prior
crimes of violence: a 1986 conviction for robbery and
aggravated assault, a 1989 conviction for burglary of a
dwelling, and a 1990 conviction for burglary of a dwelling.
See Sentencing Minutes (CR DE 34); Judgment (CR DE
35); Sentencing Transcript (CR DE 46).
Armed Career Criminal Act (“ACCA”) provides for
enhanced sentencing for individuals who violated Section
922(g) and have “three previous convictions for a
violent felony, serious drug offense, or both, committed on
occasions different from one another . . . .” 18 U.S.C.
§ 924(e)(1). The ACCA defines “violent
felonies” as any crime punishable by imprisonment for a
term exceeding one year that: “(i) has as an element
the use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or
extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of
physical injury to another . . . .” 18 U.S.C.
§ 924(e)(1)(B) (emphasis added).
(e)(1)(B)(i) is known as the “elements clause, ”
the first portion of subsection (e)(1)(B)(ii) is known as the
“enumerated crimes clause, ” and the last portion
of Section (B)(ii), in bold type above, is known as the
“residual clause.” In the Motion, Petitioner
argues that his prior convictions for burglary of a dwelling
do not support the Armed Career Criminal Act
(“ACCA”) enhancement under 18 U.S.C. §
924(e), because Johnson v. United States, 135 S.Ct.
2551 (2015) invalidated the residual clause found in §
924(e)(2)(B)(ii), and his prior offenses do not otherwise
qualify under the elements and enumerated clauses of the
neither Petitioner nor Respondent has objected to the Report,
the Court notes that the legal standard applied by Judge
White is no longer the law of this Circuit, and thus is
clearly erroneous. In the Report, Judge White noted an
uncertainty over a § 2255 Petitioner's burden of
proof, see Report at 8-12, and applied the following
threshold standard: a “movant should prevail on his
Section 2255 motion if he shows . . . the sentencing court
may have relied on ACCA's residual clause . . .
.” (emphasis in original)). See Report at
12-13. The Report then found that Petitioner satisfied this
threshold burden “because it is unclear from the record
which of [the] ACCA's clauses the Court relied on in
sentencing the movant.” Id. at 13.
Beeman v. United States, the Court of Appeals for
the Eleventh Circuit established that, “[t]o prove a
Johnson claim, the movant must show that-more likely than
not-it was use of the residual clause that led to the
sentencing court's enhancement of his sentence.”
871 F.3d 1215, 1221-22 (11th Cir. 2017). The Court does not
find the Report's factual finding-i.e. it is
unclear from the record which clause of the ACCA was relied
on in sentencing-to be erroneous. Indeed, at sentencing, the
Court did not state which clause it relied upon in applying
the ACCA enhancement. See Sentencing Transcript (CR
DE 46). As Petitioner concedes, “the record is unclear
on what grounds the sentencing court found that Mr.
Williams' prior was a violent felony.” See
Reply (ECF No. 14) at 4.
as here, the evidence does not clearly explain what happened
. . . the party with the burden loses.”
Beeman, 871 F.3d at 1225 (quoting Romine v.
Head, 253 F.3d 1349, 1357 (11th Cir. 2001)). “If
it is just as likely that the sentencing court relied on the
elements or enumerated offenses clause, solely or as an
alternative basis for the enhancement, then the movant has
failed to show that his enhancement was due to use of the
residual clause.” Id. at 1222.
Petitioner's Johnson claim is “therefore
due to be dismissed because he failed to carry his burden of
proof. Specifically, he failed to prove-that it was more
likely than not-he in fact was sentenced as an armed career
criminal under the residual clause. Having failed to prove
that but for the residual clause he would have received a
different sentence, he cannot prevail.” Id. at
Judge White-and others jurists-have described placing this
burden of proof on § 2255 petitioners as “unfair,
” see Report at 10, this Court is bound by
Beeman. See In re Hubbard, 803 F.3d 1298,
1309 (11th Cir. 2015) (It is a “fundamental rule”
that “courts of this circuit are bound by the precedent
of this circuit.”). However, reasonable jurists
could-and do-disagree on whether the law of the circuit is
correct. See, e.g., In re Chance, 831 F.3d
1335, 1340 (11th Cir. 2016) (suggesting that it is
“wrong” to “make the inmate prove whether
or not [he] was sentenced under the residual clause”
(alteration in original) (internal citation and quotation
marks omitted)); Leonard v. United States, No.
16-22612-CIV, 2016 WL 4576040, at *2 (S.D. Fla. Aug. 22,
2016) (Altonaga, J.) (declining to “impose” the
“high burden of proving the Court relied upon the ACCA
residual clause” and holding that Petitioner can
sustain his § 2255 motion if “it is unclear from
the record which clause the sentencing court relied on in
applying the ACCA enhancement”). Accordingly, a
certificate of appealablity is GRANTED regarding whether
Petitioner must affirmatively show that the sentencing court
relied on the ACCA residual clause. See Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (For a certificate of
Appealability to issue, “[t]he petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong.”); see also Upshaw, 2017 WL 5709563
at *1 (granting certificate of appealability on this exact
issue in the wake of Beeman).
CONSIDERATION of Petitioner's § 2255 Motion (ECF No.
12), the Respondent's Opposition (ECF No. 13),
Petitioner's Reply (ECF No. 14), the Report (ECF No.15),
the pertinent portions of the record, and being otherwise
fully advised in the premises, it is hereby ORDERED AND
ADJUDGED that Petitioner's Motion is DENIED. The Court
DECLINES TO ADOPT Judge White's Report. The Court finds
that a certificate of appealability should issue as to
whether Petitioner must affirmatively show that the
sentencing court relied on the ACCA residual clause. The
Clerk of Court is instructed to CLOSE this case. All pending
motions are DENIED AS MOOT.