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Dawson v. United States

United States District Court, S.D. Florida

April 2, 2018

SHANNON DAWSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING REPORT IN PART AND GRANTING MOTION TO CORRECT SENTENCE

          PATRICIA A. SEITZ UNITED STATES DISTRICT JUDGE

         THIS 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].

         The 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.

         BACKGROUND

         I. Initial Sentencing

         On 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[1]. On August 21, 2006, the jury returned a guilty verdict on all five counts. [CR-DE 69].

         In 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).[2] (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")[3] 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 hearing.

         The 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].

         II. Appeal and Re-sentencing

         On December 1, 2006, the Movant filed an appeal in the Eleventh Circuit. [CR-DE 81].

         The 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.[4] [CR-DE 126]. The Movant did not appeal this sentence.

         III. Previous 2255 Claim

         On 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.[5] 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).[6] 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].

         IV. Current 2255 & Report

         On June 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.[7]

         The 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.

         The 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].

         DISCUSSION

         I. Movant's Johnson claim is not procedurally barred.

         As a 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.

         A. Movant Has Shown Cause

         In 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 overruled.

         B. Movant Has Shown Actual Prejudice

         The 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.[8] 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 ...


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