United States District Court, S.D. Florida
ORDER ON MAGISTRATE JUDGE'S REPORT AND
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE.
case was referred to United States Magistrate Judge Alicia M.
Otazo-Reyes for a ruling on all pre-trial, nondispositive
matters and for a report and recommendation on any
dispositive matters. Judge Otazo-Reyes issued a report
recommending that the Court deny Carl Richard Samson's
motion to vacate his sentence pursuant to 28 U.S.C. §
2255 (ECF No. 5). (Report of Magistrate Judge, ECF No. 31.)
Mr. Samson filed objections to Judge Otazo-Reyes's
Report. (Objections to Report, ECF No. 32.) Accordingly, the
Court has reviewed the portions of Judge Otazo-Reyes's
Report that Mr. Samson objected to de novo,
see 28 U.S.C. 636, and the remaining portions for
clear error. See Macort v. Prem, Inc., 208 F.
App'x 781, 784 (11th Cir. 2006).
Samson was convicted by a jury of conspiracy to commit Hobbs
Act robbery, in violation of 18 U.S.C. § 1915(a) (Count
1); attempt to commit Hobbs Act robbery, in violation of 18
U.S.C. § 1915(a) and (2) (Count 2); and, using and
carrying a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)
and (2) (Count 3). (Case No. 10-cr-20855, ECF No. 297 at 1.)
Mr. Samson was sentenced to two concurrent sentences of 200
months' imprisonment for the first two counts, and a
consecutive sentence of 120 months' imprisonment for the
third count, with a supervised release term of five years.
(Id. at 2-3.) Mr. Samson previously directly
appealed his convictions, which were affirmed (Case No.
10-cr-20855, ECF No. 347), and filed a motion to vacate under
§ 2255, which this Court denied (Case No. 10-cr-20855,
ECF No. 355). Mr. Samson's second motion to vacate is now
before the Court (ECF No. 5). Mr. Samson initially raised two
arguments in his pro se motion to vacate (ECF Nos. 1, 4),
which the Eleventh Circuit reviewed pursuant to 28 U.S.C.
§§ 2255(h) and 2244(b)(3)(A). (Order on Appl. to
File Second or Successive Mot., ECF No. 14.) The Eleventh
Circuit, however, denied Mr. Samson leave to file a second or
successive petition on the argument Mr. Samson presented
regarding the residual clause of the Sentencing Guidelines
and he has since withdrawn this argument. (Notice of
Withdrawal, ECF No. 20.)
remaining basis for Mr. Samson's second-in-time motion to
vacate his sentence is that, following the Supreme
Court's ruling in Johnson v. United States, 135
S.Ct. 2551 (2015), his conviction under § 924(c) should
be vacated because his convictions for conspiracy to commit
Hobbs Act robbery and attempt to commit Hobbs Act robbery do
not qualify as crimes of violence under 18 U.S.C. §
924(c)(3)(B). The Supreme Court in Johnson
determined that the “residual clause” of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B)(ii), was unconstitutionally vague.
Johnson, 135 S.Ct. at 2557. The Johnson
decision was then made retroactive under Welch v. United
States, 136 S.Ct. 1257, 1265 (2016). Mr. Samson argues
that the residual clause analyzed in Johnson is
similar enough to the language in 18 U.S.C. 924(c)(3)(B) that
Johnson's void-for-vagueness determination
applies to his case. Relatedly, Mr. Samson's motion
asserts that his two companion convictions for conspiracy to
commit Hobbs Act robbery and attempted Hobbs Act robbery are
not crimes of violence under § 924(c)(3)(A).
Mr. Samson's motion is second or successive, Mr.
Samson's motion had to be “certified as provided in
section 2244 by a panel of the appropriate court of
appeals.” 28 U.S.C. § 2255(h). Relatedly, 28
U.S.C. § 2244(b)(3)(A) states that “[b]efore a
second or successive application permitted by this section is
filed in the district court, the applicant shall move the
appropriate court of appeals for an order authorizing the
district court to consider the application.” As a
result, the Eleventh Circuit had to certify that Mr.
Samson's motion contained one of the two bases for
bringing a second or successive petition. See 28
U.S.C. § 2255(h)(1)-(2). Here, the Eleventh Circuit
granted Mr. Samson's motion to file a second or
successive motion pursuant to § 2255(h)(2) as to his
Johnson claim, concluding that Mr. Samson made a
prima facie showing that he was sentenced under the
“residual clause” of § 924(c) and
consequently, his claim fell within the substantive rule
announced in Johnson, which the panel assumed would
impact convictions under § 924(c). (Order, ECF No. 14.)
reviewing Mr. Samson's motion to vacate, Judge
Otazo-Reyes recommended that his motion be denied. (Report,
ECF No. 31.) Judge Otazo-Reyes first concluded that Mr.
Samson's § 924(c) conviction was based on a crime of
violence under the use-of-force clause of §
924(c)(3)(A). In particular, Judge Otazo-Reyes found that
attempt to commit Hobbs Act robbery is categorically a crime
of violence under § 924(c)(3)(A), relying on a Second
Circuit case, United States v. Hill, 832 F.3d 135
(2d Cir. 2016). Next, Judge Otazo-Reyes concluded that even
assuming that Mr. Samson was not convicted under the
use-of-force clause, Johnson did not render §
924(c)(3)(B) unconstitutionally vague as recently determined
by the Eleventh Circuit in Ovalles v. United States,
861 F.3d 1257 (11th Cir. 2017), so Mr. Samson cannot overcome
§ 2255's procedural bar on the basis of actual
reviewing Judge Otazo-Reyes's report, the record, and the
relevant legal authorities, the Court determines that Mr.
Samson's second motion to vacate cannot proceed because
it does not meet the requirements of § 2255(h). As a
result, the Court cannot adopt Judge Otazo-Reyes
recommendations to the extent they are merits determinations.
In particular, the Court passes no judgment on whether
attempt to commit Hobbs Act robbery or conspiracy to commit
Hobbs Act robbery are crimes of violence under the
use-of-force clause of § 924(c)(3)(A) because those
questions are not properly before the Court.
Eleventh Circuit panel clarified in its order granting Mr.
Samson leave to file his second or successive motion to
vacate, “the district court not only can, but must,
determine for itself whether those [§ 2255(h)]
requirements are met.” (Order, ECF No. 14 at 12.)
(quoting Jordan v. Sec'y, Dep't of Corr.,
485 F.3d 1351, 1357 (11th Cir. 2007)). As reiterated by the
Eleventh Circuit in In re Moss, 703 F.3d 1301 (11th
Cir. 2013), the district court is bound to decide
“fresh” the issue of whether § 2255(h)
criteria are met, and if so, proceed to considering the
merits of the § 2255 motion. Id. at 1303
(quoting Jordan, 485 F.3d at 1358).
here, § 2255(h)(2) states that a movant must show that
there is “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable” in order to
file a second or successive motion to vacate. When the
Eleventh Circuit granted Mr. Samson leave to file his second
or successive motion, it had not yet resolved the question of
whether Johnson invalidated § 924(c)(3)(B), and
the panel was assuming-without holding-that Mr. Samson's
motion could be filed pursuant to Johnson.
Eleventh Circuit has since determined in Ovalles
that Johnson's void-for-vagueness determination
in the ACCA context does not extend to § 924(c)(3)(B)
and remains valid. Ovalles, 861 F.3d at 1263-67. We
are bound by Ovalles, and as result, Mr.
Samson's motion to vacate cannot proceed. The Court
recognizes that in his objections, Mr. Samson alerted the
Court to the fact that the mandate has not yet issued for
Ovalles and that he asked the Court to stay this
case until the Supreme Court decides Sessions v.
Dimaya, S.Ct. No. 15-1498, a case Mr. Samson believes
will impact the Eleventh Circuit's resolution of
Ovalles. The Court declines Mr. Samson's
invitation to stay this case because the Court is bound by
Ovalles notwithstanding the fact that the mandate
has not yet issued; in fact, the Eleventh Circuit continues
to apply Ovalles despite this fact. See Martin
v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992)
(recognizing that panel was bound by case that had its
mandate stayed pending the filing of petition for writ of
certiorari and stating that “the stay in no way affects
the duty of this panel or courts in this circuit to apply now
the precedent established . . . as binding authority”);
King v. United States, No. 17-11053, 2018 WL 566319,
at *1 (11th Cir. Jan. 26, 2018) (applying Ovalles
and stating “[w]e are bound by this Court's prior
precedent unless and until it is overruled by this Court
sitting en banc or by the Supreme Court”);
see also Godbee v. United States, 711 F. App'x
588, 588-89 (11th Cir. 2018); Williams v. United
States, 709 F. App'x 676, 676 (11th Cir. 2018).
Moreover, the Eleventh Circuit recently declined to stay one
of its cases on the basis that Dimaya is pending
before the Supreme Court, finding the issues raised in
Dimaya inapplicable to § 924(c) cases. See
United States v. St. Hubert, 883 F.3d 1319, 1336-37
(11th Cir. 2018).
the Court adopts the Report in part to the
extent it denies relief to Mr. Samson but declines to
adopt Judge Otazo-Reyes's Report to the extent
it reaches the merits of Mr. Samson's motion to vacate,
and dismisses Mr. Samson's motion to
vacate (ECF No. 5). The Court does not issue a certificate of
appealability. Finally, the Court directs the Clerk to
close this case.