United States District Court, S.D. Florida
ORDER ADOPTING REPORT IN PART AND GRANTING MOTION TO
PATRICIA A. SEITZ UNITED STATES DISTRICT JUDGE
CAUSE is before the Court on the Report and Recommendation of
Magistrate Judge [DE 17]. In that Report, Magistrate Judge
Turnoff recommends granting Movant's Motion to Vacate,
Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §
2255 [DE 1]. Movant argues his sentence should be vacated
based on the U.S. Supreme Court's recent decision in
Samuel Johnson v. United States, 135 S.Ct. 2551
(2015) (holding that the residual clause of the Armed Career
Criminal Act (ACCA) was unconstitutionally vague). The Report
found that Movant is not procedurally barred from asserting a
Johnson claim and is entitled to relief under
Johnson. The Government filed objections [DE 20] to
the Report, Movant filed a Response [DE 21], and the
Government filed a Reply [DE 24]. The Government also filed a
Notice [DE 25] regarding recent developments in the law, the
Movant filed a Response [DE 26] and the Government filed a
Reply [DE 27].
Court has reviewed the record de novo and adopts in
part the Report in finding that the Movant is not subject to
a procedural bar to bring his claim forward and in finding
that Movant is entitled to relief. The Court, however,
respectfully declines to adopt the Report in its analysis of
the Movant's claim under Johnson on the merits.
For different reasons than those set forth in the Report, the
Court finds that the Movant is entitled to relief under
Johnson and his sentence should be vacated.
April 6, 2006, a grand jury returned an indictment charging
Movant with the following counts: Count 1 - Possession with
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1); Count 2 - Possession with intent to
distribute five grams or more of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1); Count 3 - Possession with
intent to distribute marijuana, in violation of 21 U.S.C.
§ 841(b)(1)(D); Count 4 - Possession of a firearm during
and in relation to a drug trafficking crime, and possession
of a firearm in furtherance of a drug trafficking crime
(Counts 1, 2, 3) in violation of 18 U.S.C. §
924(c)(1)(A); and Count 5 -Possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1)
and 924(e). [CR-DE l. On August 21, 2006, the jury returned a
guilty verdict on all five counts. [CR-DE 69].
November 2006, the Probation Department issued the
Presentence Investigation Report ("PSR") to assist
the Court with sentencing. The PSR increased the Movant's
offense level from "26" to "37" after
finding that Movant qualified for an enhanced sentence as a
Career Offender under Sentencing Guideline § 4B1.1 and
as an armed career criminal under 18 U.S.C. § 924(e),
the Armed Career Criminal Act (ACCA). (PSR ¶ ¶ 13, 19).
The PSR based this qualification on the following predicate
offenses: (1) armed robbery and possession with intent to
sell or deliver cocaine on February 19, 1999; and (2) two
convictions for battery on a law enforcement officer
("BOLEO") on October 10, 2001. (PSR ¶ 19,
34-35). The enhancement rendered a guideline range of 360
months to life, followed by a mandatory consecutive sentence
of five years on Count 4, for a total range of 420 months to
life. (PSR ¶ 21). The PSR provided a description of the
facts underlying the Movant's predicate convictions which
the Movant did not object to in writing or at his sentencing
Court sentenced the Movant to 420 months and eight years of
supervised release on November 28, 2006. [CR-DE 79]. The
Court disagreed with the disparity under the sentencing
guidelines between powder and crack cocaine, but imposed a
sentence in line with the guidelines at that time. [CR-DE
99]. The Court also noted that the PSR set forth the
Movant's qualifying predicate offenses for "career
offender" purposes. Although the Court listed the
Movant's predicate qualifying offenses, it made no
findings as to whether these offenses qualified under the
elements, enumerated, or residual clause of the ACCA. The
Court referred to Movant's "gun enhancement, "
but not to any specific clause of the ACCA. [CR-DE 99].
Appeal and Re-sentencing
December 1, 2006, the Movant filed an appeal in the Eleventh
Circuit. [CR-DE 81].
Eleventh Circuit affirmed the denial of the Movant's
request for a new trial on January 24, 2008. United
States v. Dawson, 266 Fed.Appx. 810, 813-14 (11th Cir.
2010). However, the Eleventh Circuit vacated the Movant's
sentence and remanded the matter for re-sentencing, pointing
out that judges had discretion to depart from the
crack/powder disparity under Kimbrough v. United
States, 552 U.S. 85 (2007). See Id. The Court
held a re-sentencing hearing on April 8, 2008, at which it
decreased the sentence to 240 months imprisonment for all
counts. [CR-DE 126]. The Movant did not appeal
Previous 2255 Claim
April 3, 2009, Movant filed his first Motion to Vacate, Set
Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255,
where he asserted claims related to his trial
proceedings. The, Movant argued that his prior
conviction for BOLEO no longer qualified as a "violent
felony" for ACCA purposes under United States v.
Curtis Johnson, 559 U.S. 133 (2010) (holding that
battery was not a categorically "violent felony"
under the ACCA because it could be accomplished by a mere
unwanted touching). Relying on the facts in the PSR, the
Magistrate Judge found that the Movant's BOLEO conviction
constituted a violent felony under the residual clause of the
ACCA. [CV-DE 31 at 8]. The Court affirmed and adopted the
Magistrate Judge's Report. [CV-DE 43]. Movant appealed to
the Eleventh Circuit. On December 18, 2014, the Eleventh
Circuit affirmed this Court's decision and rejected the
Movant's claims that he was improperly sentenced as an
Armed Career Criminal. [CV-DE 68].
Current 2255 & Report
22, 2016, the Movant filed a successive Motion to Vacate
Sentence Pursuant to 28 U.S.C. § 2255. [DE 1]. The
Movant petitioned the Eleventh Circuit for leave to file a
second or successive-motion to vacate pursuant to 28 U.S.C.
§ 2255. [DE 8]. On July 28, 2016, the Eleventh Circuit
found that the Movant had presented a prima facie
case showing that his ACCA claim fell within the scope of the
new substantive rule in Johnson. The Movant was
given leave to file a second § 2255 motion challenging
his ACCA enhancement.
Movant asserts his sentence is no longer subject to the ACCA
enhancement because his BOLEO conviction no longer qualifies
as a predicate offense under Johnson. [DE 1]. The
Government contends that the Movant procedurally defaulted on
his present claim by failing to argue at his sentencing
hearings or on direct appeal that the ACCA's residual
clause was unconstitutional on vagueness grounds, and that
the Movant failed to meet his burden of establishing that
this Court relied on the ACCA's residual clause to find
that his prior BOLEO conviction qualified as a predicate
offense for ACCA purposes.
Magistrate Judge issued the Report and Recommendation
granting the Motion, finding the Movant is not procedurally
barred from bringing his claim forward and is entitled to
relief under Johnson. [DE 17]. The Government, in
its Objections and Reply, maintains that Movant is
procedurally barred from bringing the claim and fails to meet
the required burden of proof for a Johnson claim.
[DE 20, 24].
Movant's Johnson claim is not procedurally
threshold matter, the Court must address whether the
Movant's claim is properly before the Court. Generally, a
Movant is procedurally barred from raising a challenge to his
conviction or sentence for the first time in his § 2255
petition if he could have raised the challenge on direct
appeal. United States v. Frady, 456 U.S. 152, 165
(1982). Movant can avoid[ the procedural bar by showing
"both (1) 'cause' excusing his double procedural
default, and (2) 'actual prejudice' resulting from
the errors of which he complains." Id. at 168.
The Report found that Movant established both cause and
actual prejudice and therefore is not procedurally barred
from bringing his claim. For the reasons discussed below, the
Court affirms and adopts the Report's legal reasoning in
determining Movant is not procedurally barred from bringing
his claim forward.
Movant Has Shown Cause
determining Movant has shown cause, the Report found that
Movant's requested relief relied on a new constitutional
law set forth in Johnson that was not readily
available to counsel. The Government objects that the
Magistrate Judge "relied heavily on the reasoning in two
district court opinions previously rejecting the
government's argument on this issue." [DE 20]
(referring to Duhart v. United States, 2016 WL
4720424 (S.D. Fla. Sept. 9, 2016) and Simmons v. United
States, 2016 WL 4536092 (S.D. Fla Aug. 8, 2016)). The
Government also stated it had nothing more to add to its
procedural default argument and simply renewed its initial
argument. [DE 20]. Local Magistrate Judge Rule 4(b) indicates
that written objections shall 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." S.D. Fla.
L.R. 4(b). The Government provides no legal authority to
support its objection to the Report that the Magistrate Judge
used two cases that rejected the Government's arguments.
Additionally, the Government's initial argument was
already reviewed by the Magistrate Judge prior to finding
that Movant had shown cause. Therefore, this objection is
Movant Has Shown Actual Prejudice
Report found that the Movant has shown actual prejudice
because he is serving an enhanced sentence that should not
have been enhanced under the ACCA. In a separate part of the
Report, the Report mentions that the Government conceded that
if Movant were sentenced today, he would no longer qualify
for the enhancement. In its objections, the Government explains
it initially conceded that Movant would not qualify for the
enhancement at the time of its filing because BOLEO was no