Overstreet v. United States

          ORDER

          MARCIA MORALES HOWARD, United States District Judge.

         This case is before the Court on Petitioner Archery Lynn Overstreet's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1; § 2255 Motion) and Supporting Memorandum (Civ. Doc. 11; Memorandum).^[1] Overstreet pled guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The Court sentenced him to a term of 420 months in prison after determining he was an armed career criminal under § 924(e).^[2] (See Crim. Doc. 41; Judgment). Overstreet raises a single claim: that the Court wrongly sentenced him under the Armed Career Criminal Act (ACCA) in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The United States has responded (Civ. Doc. 13; Response), and Overstreet has replied (Civ. Doc. 22; Reply). The Court has also considered Overstreet's notice of supplemental authority (Civ. Doc. 23; Supp. Auth.), the United States' response to the supplemental authority (Civ. Doc. 27; Response to Supp. Auth.), and Overstreet's reply (Civ. Doc. 34; Reply Concerning Supp. Auth.). Thus, the matter is ripe for review.

         Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings^[3], the Court has considered the need for an evidentiary hearing and determines that a hearing is not necessary to resolve the merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 petition is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief); Patel v. United States, 252 Fed.Appx. 970, 975 (11th Cir. 2007).^[4] For the reasons set forth below, Overstreet's § 2255 Motion is due to be denied.

         I. Background

         The facts and circumstances of this case are well set out in the Eleventh Circuit's opinion affirming Overstreet's sentence on direct appeal. United States v. Overstreet, 713 F.3d 627, 629-634 (11th Cir. 2013). The Court repeats the essential facts here:

A. The Indictment

A federal grand jury issued a superseding indictment (the “indictment”), charging Overstreet with one count of possessing a firearm while being a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The indictment alleged that Overstreet previously was convicted in Texas state court of five crimes punishable by imprisonment for a term exceeding one year: (1) burglary of a building, committed in July 1983; (2) burglary of a habitation, committed on May 27, 1986; (3) attempted murder, committed on May 27, 1986; (4) aggravated sexual assault, committed on May 28, 1986; and (5) another attempted murder, committed on May 28, 1986.^[5]

B. Overstreet's Prior Convictions

Overstreet's four most serious prior convictions-burglary of a habitation, two attempted murders, and aggravated sexual assault-stemmed from a crime spree that occurred in Texas on May 27 and 28, 1986. That crime spree began with burglary, when Overstreet and his brother, Clifford Carter, entered a private home without permission and stole 13 firearms and a car. Later that evening, Overstreet and Carter were pulled over by two police officers for a seatbelt violation. As the officers approached the car, both Overstreet and Carter fired handguns at the officers. One of the officers was grazed by a bullet on his right temple and fell to the ground, but survived. The officers fired back, and Overstreet and Carter drove off.

Overstreet and Carter then drove to a relative's home in an apartment complex, approximately seven miles away from the place of the police shooting. They saw a young woman entering her minivan in a parking lot. Overstreet and Carter entered the minivan, threw the woman into the back, and drove to a secluded area outside of Houston, Texas, near the Brazos River. They then forced the woman to remove her clothing and raped her twice. After the rape, Overstreet and Carter made the woman walk away from the minivan wearing only her bra and underwear. When the woman was approximately 15 feet away from the minivan, Overstreet and Carter each shot her in the back. Four bullets hit the woman, and she fell down an embankment. Overstreet later told the police that the woman was still breathing when he and Carter left her, but they did not shoot her again because they thought she would die anyway. Fortunately, the woman survived. After the assailants left the scene, she managed to crawl to a nearby residence and was taken to a hospital, where she underwent extensive surgery to remove her left kidney, remove a section of her large and small intestines, and repair her lung.

As a result of this crime spree, Overstreet received one conviction for burglary, two convictions for attempted capital murder (for shooting the officer and the woman), and one conviction for aggravated sexual assault. He was sentenced in state court to a total of 60 years in prison.

C. The Present Offense

While serving his 60-year sentence in Texas, Overstreet married a long-time friend, Taffy Overstreet (“Taffy”). In 2008, after spending approximately 22 years behind bars, Overstreet was released on parole under strict supervision and went to live with Taffy at her house in Houston. He was 49 years old at the time of his release. As part of his many parole conditions, Overstreet had to wear an electronic monitoring ankle bracelet that would set off an alarm if he left his home between 6:30 p.m. and 9:00 a.m.

On November 8, 2010, at approximately 5:30 a.m., Overstreet cut his electronic ankle bracelet, setting off an alarm, and fled Texas. Around the same time, Taffy disappeared and has not been seen or heard from since. Overstreet was eventually caught on December 8, 2010, in Jacksonville, Florida. Among other things, the police discovered a loaded gun and a roll of blood-stained duct tape in the trunk of the car he was driving.^[6]

Overstreet was the prime suspect in Taffy's disappearance, but her body was never found, and Overstreet was not charged with her murder. Rather, Overstreet was indicted in federal court on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He pled guilty to this firearm offense, but did not admit the existence and nature of his prior convictions, aside from the fact that he had at least one prior felony. Overstreet expressly reserved the right to contest his potential sentencing enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

At Overstreet's sentencing hearing for the present offense, the district court found that the government proved by a preponderance of the evidence that Overstreet murdered Taffy while absconding from parole….

D. Sentencing Guideline Calculations

According to the Presentence Investigation Report (“PSI”), Overstreet's initial base offense level was 24, pursuant to U.S.S.G. § 2K2.1(a)(2). The PSI then classified Overstreet as an armed career criminal under the ACCA and U.S.S.G. § 4B1.4(b) because he had at least three prior convictions for a violent felony. The ACCA classification resulted in an offense level of 33. Overstreet qualified for a total three-level reduction under U.S.S.G. § 3E1.1(a)-(b) for acceptance of responsibility, yielding a total offense level of 30.

Based on his prior convictions and the fact that he was on parole when he committed the present offense, the PSI placed Overstreet into criminal history category V, which, combined with the offense level of 30, resulted in a guideline range of 151 to 188 months' imprisonment. However, the ACCA mandated a minimum sentence of 15 years, or 180 months, and thus Overstreet's guideline range became 180 to 188 months. See 18 U.S.C. § 924(e); U.S.S.G. § 5G1.1(c)(2). The statutory maximum term for Overstreet's offense was life imprisonment. See 18 U.S.C. § 924(e)(1); United States v. Brame, 997 F.2d 1426, 1428 (11th Cir. 1993) (holding the statutory maximum sentence under § 924(e) is life imprisonment, even though the statute does not state so expressly).

Overstreet, 713 F.3d at 629-31 (footnotes omitted). The Court determined that a Criminal History Category of V underrepresented the severity of Overstreet's criminal record, and therefore departed upward to a Criminal History Category of VI pursuant to U.S.S.G. § 4A1.3. (Crim. Doc. 48; Sentencing Tr. Vol. II at 55-57). The upward departure yielded an advisory sentencing range of 180 to 210 months in prison. Id. at 57.

         The Court then varied above the Guidelines range and sentenced Overstreet to a term of 420 months in prison. Id. at 67. In explaining the upward variance, the Court pointed to Overstreet's horrendous criminal history, the fact that being on parole and serving 22 years in prison did not deter him from committing further criminal conduct, and the evidence that Overstreet likely murdered his wife. Id. at 59-67. Based on these facts, the Court explained, a significant upward variance was necessary to protect the public and to deter Overstreet from committing further crimes. Id. at 63.

         Overstreet appealed the sentence, “argu[ing] that his ACCA enhancement was unconstitutional because (1) he did not admit the existence of his prior convictions when he pleaded guilty, and (2) the fact that his prior offenses were ‘committed on occasions different from one another' should have been alleged in the indictment and proven beyond a reasonable doubt.” Overstreet, 713 F.3d at 634-35.^[7] The Eleventh Circuit rejected both of these arguments because they were “foreclosed by binding precedent.” Id. at 635; see also Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 239 (1998) (the existence of a defendant's prior convictions need not be alleged in the indictment, admitted, or proven to a jury beyond a reasonable doubt); United States v. Sneed, 600 F.3d 1326, 1332-33 (11th Cir. 2010) (a district court has authority to make the different-occasions determination so long as it limits itself to Shepard-approved^[8] sources). Overstreet also argued that his sentence was procedurally and substantively unreasonable, but the Eleventh Circuit rejected those arguments as well. Overstreet, 713 F.3d at 636-40. As such, the Eleventh Circuit affirmed Overstreet's sentence. Id. at 640.

         Overstreet petitioned the United States Supreme Court for a writ of certiorari, but the Supreme Court denied certiorari review on October 7, 2013. Overstreet v. United States, 571 U.S. 896, 134 S.Ct. 229 (Mem.) (2013). A little less than three years later, on June 23, 2016, Overstreet filed the instant § 2255 Motion to challenge his ACCA sentence.

         II. The ACCA and Johnson

         Pursuant to 18 U.S.C. § 922(g), a person convicted of being a felon in possession of a firearm is ordinarily subject to a maximum term of imprisonment of 10 years. Under the ACCA, however, that person is subject to an enhanced mandatory minimum sentence of 15 years in prison if he has three or more prior convictions for a violent felony or a serious drug offense, or both, each committed on different occasions. 18 U.S.C. § 924(e)(1). At the time of Overstreet's offense conduct and sentencing, the term “violent felony” included “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)(2)(B) (emphasis added). Subsection (i) of this provision is referred to as the “elements clause, ” the first nine words of subsection (ii) are referred to as the “enumerated clause, ” and the rest of subsection (ii), which is emphasized above, is referred to as the “residual clause.” Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016).

         In Johnson v. United States, the Supreme Court held that the residual clause is unconstitutionally vague. 135 S.Ct. at 2557-58, 2563. However, the Supreme Court made clear that the elements clause and the enumerated clause remained unaffected. Id. at 2563. Later, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that Johnson applies retroactively on collateral review.

         For a prisoner to successfully challenge his ACCA sentence based on Johnson, he must prove “more likely than not” that the sentencing court relied on the residual clause to impose the ACCA enhancement. Beeman v. United States, 871 F.3d 1215, 1220-22 (11th Cir. 2017), cert. denied, 139 S.Ct. 1168 (2019).

Only if the movant would not have been sentenced as an armed career criminal absent the existence of the residual clause is there a Johnson violation. That will be the case only (1) if the sentencing court relied solely on the residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause (neither of which were called into question by Johnson) to qualify a prior conviction as a violent felony, and (2) if there were not at least three other prior convictions that could have qualified under either of those two clauses as a violent felony, or as a serious drug offense.

Id. at 1221. “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.

         Whether the sentencing court relied on the residual clause is a “historical fact, ” which is determined by reference to the state of affairs that existed at the time of sentencing. See id. at 1224 n.5. Thus, court decisions rendered afterward holding that a particular offense does not qualify under the elements clause or the enumerated offense clause “cast[ ] very little light, if any, on th[is] key question of historical fact.” Id. A prisoner can establish that the sentencing court relied on the residual clause in two ways. First, the prisoner can point to “direct evidence: comments or findings by the sentencing judge indicating that the residual clause was relied on and was essential to application of the ACCA in that case.” Id. at 1224 n.4. Alternatively, absent direct evidence, there will

sometimes be sufficient circumstantial evidence to show the specific basis of the enhancement. For example, there could be statements in the PSR [Presentence Investigation Report], which were not objected to, recommending that the enumerated clause and the elements clause did not apply to the prior conviction in question and did not apply to other prior convictions that could have served to justify application of the ACCA. Or the sentencing record may contain concessions by the prosecutor that those two other clauses do not apply to the conviction in question or others.

Id. A prisoner may also circumstantially prove that the ACCA sentence depended on the residual clause “if the law was clear at the time of sentencing that only the residual clause would authorize a finding that the prior conviction was a violent felony.” Id. at 1224 n.5 (emphasis added). However, if “‘the evidence does not clearly explain what happened … the party with the burden ...