Williams v. USA
Filing
9
OPINION AND ORDER dismissing 1 Motion to vacate, set aside, or correct sentence (2255) as procedurally defaulted, or in the alternative, denying as without merit. The Clerk shall enter judgment accordingly, file a copy of the judgment in the corresponding criminal file (Case No. 2:07-cr-134-FTM-29DNF), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 10/12/2012. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANDAMON CARL WILLIAMS,
Petitioner,
vs.
Case No. 2:10-cv-608-FtM-29DNF
Case No. 2:07-cr-134-FtM-29DNF
UNITED STATES OF AMERICA,
Respondent.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Petitioner Andamon Carl
William’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence By a Person in Federal Custody (Cr. Doc # 116; Cv.
Doc. # 1)1.
The United States filed a Response (Cv. Doc. # 8)
asserting the motion should be dismissed on procedural grounds or,
alternatively, denied on substantive grounds.
I.
On November 7, 2007, Andamon Carl Williams (petitioner) was
charged in a one-count Indictment with possession of a firearm and
ammunition by a convicted felon in violation of 18 U.S.C. §§
1
The Court will make reference to the dockets in the instant
action and the related criminal case throughout this opinion. The
Court will refer to the docket of the civil habeas case as “Cv.
Doc.”, and will refer to the docket of the underlying criminal case
as “Cr. Doc.”
Page numbers refer to those on the upper right
corner generated by CM/ECF.
922(g)(1) and 924(e).
(Cr. Doc. # 1.)
On October 31, 2008,
petitioner pled guilty to the charge pursuant to a written Plea
Agreement.
(Cr.
Docs.
##
87-90.)
In
the
Plea
Agreement,
petitioner admitted to having prior felony convictions for five
specifically identified felonies.
(Cr. Doc. # 87, pp. 12-13.)
At the January 27, 2009 sentencing, the Court adopted the Presentence Report (PSR) without objection, and determined petitioner
qualified as an armed career criminal under the Armed Career
Criminal Act (ACCA).
(Cr. Doc. # 118, p. 19.)
The Court found
petitioner’s Total Offense Level was 30 and his criminal history
was a Category VI, which resulted in a Sentencing Guidelines range
of 180 to 210 months imprisonment.
(Cr. Doc. # 118, p. 19.)
The
Court sentenced petitioner to the statutory mandatory minimum
sentence of 180 months.
(Cr. Docs. ## 111, 118.)
Petitioner was
informed of his direct appeal rights (Cr. Doc. # 118, pp. 25-26),
but did not file a direct appeal (Cv. Doc. # 1, p. 2).
II.
Petitioner’s
§
2255
motion
asserts
that
he
is
actually
innocent of the enhanced sentence under the ACCA in light of the
Supreme Court’s decision in Johnson v. United States, 130 S. Ct.
1265 (2010).
(Cv. Doc. #1, p. 4.)
Petitioner asserts his prior
convictions for burglary of a dwelling and battery on a detention
or commitment facility staff member no longer qualify as violent
felonies, and his drug conviction could not be used, and therefore
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he does not qualify as an armed career offender.
Cv. Doc. # 1.)
(Cr. Doc # 116;
Petitioner’s motion states that he is left with
“only two qualifying convictions, if they qualify.”
116; Cv. Doc. # 1.)
(Cr. Doc #
The Court will liberally interpret2 this as an
additional argument, and will address whether petitioner’s prior
convictions for aggravated assault and possession of cocaine with
intent to sell within 1000 feet of a school qualify under the ACCA.
Additionally, petitioner requests appointment of counsel and an
evidentiary hearing.
(Cr. Doc # 116; Cv. Doc. # 1.)
The United States concedes that the petition is timely under
28 U.S.C. § 2255(f)(3) and raises a cognizable claim (Cv. Doc. #8,
p. 4), but asserts that petitioner procedurally defaulted this
claim, and that in any event, petitioner is not entitled to relief
on the merits of his claim.
(Cv. Doc. # 8.)
The Court agrees with
both positions.
A.
Procedural Default
The
United
States
asserts
that
petitioner’s
claim
is
procedurally defaulted because petitioner did not challenge the
career offender designation at sentencing or on direct appeal. The
Court agrees.
A federal criminal defendant who fails to preserve a claim by
objecting at trial or raising it on direct appeal is procedurally
2
Because petitioner is proceeding pro se, the Court must read
his pleadings liberally. Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).
-3-
barred from raising the claim in a § 2255 motion.
Jones v. United
States, 153 F.3d 1305, 1307 (11th Cir. 1998). Here, petitioner did
not challenge the career offender predicate offenses at sentencing
or on direct appeal.
(Cv. Doc. # 1, p. 2.)
The procedural default
may be excused, however, by a showing of cause and prejudice or a
fundamental miscarriage of justice. “Under the cause and prejudice
exception, a § 2255 movant can avoid application of the procedural
default bar by show[ing] cause for not raising the claim of error
on direct appeal and actual prejudice from the alleged error.”
McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011)
(internal quotation marks and citation omitted).
A defendant may
also show a fundamental miscarriage of justice to overcome the
procedural bar by demonstrating “actual innocence” of the offense.
Id.
Petitioner asserts actual innocence as his excuse for the
procedural default in this case.
The Eleventh Circuit has not recognized actual innocence as an
excuse to procedural default in the context of challenges to noncapital sentences.
McKay, 657 F.3d at 1196-97.
But even assuming
that the actual-innocence exception can apply to a non-capital
sentence, a petitioner must show that he is factually innocent of
the prior convictions.
McKay, 657 F.3d at 1197–98.
In McKay,
petitioner argued that he was erroneously sentenced as a career
offender because one of his predicate convictions was no longer
considered a “crime of violence.”
-4-
Id. at 1191, 1198.
The Eleventh
Circuit held that this was a claim of legal, rather than factual,
innocence, and did not fall within the purview of the actualinnocence exception.
Id. at 1198–99.
So too in this case.
Petitioner only alleges that he is
innocent of the enhancement because his underlying convictions are
no longer considered crimes of violence.
He does not allege
factual innocence, i.e., that he did not commit the predicate
offenses.
Therefore, the actual innocence exception does not
apply, and petitioner's claim is procedurally defaulted because it
was not raised at sentencing or on direct appeal.
B.
Merits of Johnson Claim
The United States argues alternataively that petitioner’s
claim lacks substantive merit.
The Court agrees, and in the
alternative denies the § 2255 motion on the merits.
The ACCA requires a mandatory minimum sentence of fifteen
years imprisonment for a defendant who violates 18 U.S.C. § 922(g)
and has three previous convictions for a “violent felony or a
serious drug offense.” 18 U.S.C. § 924(e)(1). Petitioner contends
that he was improperly sentenced as an armed career criminal
because his prior convictions for aggravated assault; battery on
detention or commitment facility staff; burglary of a dwelling; and
possession of cocaine with intent to sell within 1000 feet of a
school do
not
qualify
as
predicate
-5-
offenses
under
the
ACCA.
Petitioner’s argument fails because he still has at least three
prior convictions which qualify under the ACCA.
(1)
Violent Felonies
A “violent felony” is defined 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.
§ 924(e)(2)(B).
In Johnson, the Supreme Court defined the phrase
“physical force” as requiring violent force, that is “force capable
of causing physical pain or injury to another person.”
130 S. Ct. at 1271.
Johnson,
The Supreme Court concluded that a felony
battery offense under Fla. Stat. § 784.039(1)(a), (2) (2003) was
not categorically a violent felony.
Id. at 1272-3.
In order to determine if a prior conviction qualifies as a
violent felony, a court may rely on the statute defining the
offense and the description of the underlying facts of the offense
contained
in
the
Pre-sentence
Report
if
they
have
not
been
challenged by the defendant. United States v. Wade, 458 F.3d 1273,
1277 (11th Cir. 2006); United States v. Beckles, 565 F.3d 832, 843
(11th Cir. 2009).
Petitioner’s convictions are as follows:
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(a)
Aggravated Assault With Deadly Weapon:
According to the Plea Agreement and the Pre-sentence Report,
petitioner was convicted of aggravated assault with a deadly weapon
in 1999.
(PSR ¶ 37.)
The Eleventh Circuit has held that the
generic offense of “aggravated assault” involves a criminal assault
accompanied by the aggravating factors of either the intent to
cause serious bodily injury to the victim or the use of a deadly
weapon.
2010).
United States v. Garcia, 606 F.3d 1317, 1332 (11th Cir.
Under Florida law, an “aggravated assault” is an “assault”
committed either with “a deadly weapon without intent to kill” or
an assault committed with intent to commit a felony.
784.021(1)(a), (b) (1999).
Fla. Stat. §
An “assault” “is an intentional,
unlawful threat by word or act to do violence to the person of
another, coupled with an apparent ability to do so, and doing some
act which creates a well-founded fear in such other person that
such violence is imminent.”
Fla. Stat. § 784.011 (1999).
Because
Fla. Stat. § 784.021(1)(a) requires the threatened use of a deadly
weapon, it falls within the generic definition of aggravated
assault and qualifies as a violent felony.
See United States v.
Escobar-Pineda, 428 F. App’x 961, 962 (11th Cir. 2011); United
States v. Dominguez, 426 F. App’x 715, 717 (11th Cir. 2011).
Therefore, petitioner’s prior conviction for aggravated assault
with a deadly weapon still qualifies as a violent felony.
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(b)
Battery on Detention Facility Staff:
In 2003, petitioner was convicted under Fla. Stat. § 784.075
for battery on detention or commitment facility staff, a felony of
the third degree.
A battery is committed when a person “1.
[a]ctually and intentionally touches or strikes another person
against the will of the other; or 2. [i]ntentionally causes bodily
harm to another person.”
Fla. Stat. § 784.03(1)(a).
The PSR’s
description of the offense states that petitioner “kicked [a]
corporal’s hand, causing two small cuts and an abrasion to his
right hand.”
(PSR ¶ 43.)
“Because [ ] kicking involves strong
physical force designed to injure a victim,” United States v.
Patterson, 423 F. App’x 921, 923-24 (11th Cir. 2011), and the
victim suffered injuries to his hand as a result of the battery,
petitioner’s conviction still qualifies as a violent felony.
(c)
Burglary of Dwelling:
Petitioner asserts that his prior conviction for burglary of
a dwelling does not qualify as a violent felony because it “does
not have as an element the use, attempted use, or threatened use of
physical force against the person of another.”
Cv. Doc. # 1.)
(Cr. Doc. # 116;
Contrary to petitioner’s assertion, both the
Supreme Court and the Eleventh Circuit have held that a prior
conviction
for
burglary
in
violation
of
Fla.
Stat.
§ 810.02
constitutes a violent felony because “the burglar could come into
contact with the property’s owners or occupants and that his
-8-
presence
alone
violence.”
could
be
considered
threatening
and
lead
to
United States v. Wheeler, 434 F. App’x 831, 833 (11th
Cir. 2011), cert. denied, 132 S. Ct. 599 (2011). See also James v.
United States, 550 U.S. 192, 212 (2007); United States v. Matthews,
466 F.3d 1271, 1276 (11th Cir. 2006).
Therefore, petitioner’s
prior conviction for burglary of a dwelling qualifies as a violent
felony for purposes of the ACCA.
(2) Serious Drug Offense
Petitioner
also
asserts
that
his
prior
conviction
for
possession of cocaine with intent to sell within 1000 feet of a
school does not qualify as a serious drug offense, although he
gives no reason. The Court finds that the conviction does qualify.
The ACCA defines a “serious drug offense” to include “an
offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled
substance . . . for which a maximum term of imprisonment of ten
years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii).
Florida law prohibits any person to “sell, manufacture, or deliver,
or
possess
with
intent
to
sell,
manufacture
or
deliver,
a
controlled substance in, on, or within 1000 feet of the real
property comprising . . . a public or private elementary, middle,
or secondary school . . . .”
Fla. Stat. § 893.13(1)(c).
A person
who violates § 893.13(1)(c) with respect to a controlled substance,
including cocaine, commits a first-degree felony punishable by up
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to thirty years imprisonment.
Fla. Stat. §§ 893.13(1)(c)(1),
893.03(2)(a)(4), 775.082(3)(b). Petitioner’s conviction qualifies
as a serious drug offense because it required the intent to
distribute cocaine, a controlled substance, and carried a maximum
term of imprisonment of thirty years.
See United States v. James,
430 F.3d 1150, 1155 (11th Cir. 2005) (“The language of the Florida
statute need not exactly match the ACCA's definition of a ‘serious
drug offense.’”); United States v. Adams, 372 F. App’x 946, 951
(11th Cir. 2010) (holding that a conviction under Fla. Stat. §
893.13(1) is a serious drug felony), cert. denied, 130 S. Ct. 3527
(2010).
Combined with petitioner’s prior convictions for aggravated
assault, battery on detention or commitment facility staff and
burglary of a dwelling, petitioner was properly sentenced as an
armed career criminal because he had four qualifying convictions.
Thus, even if the claim was not procedurally barred, petitioner is
not entitled to the relief he seeks.
C.
Evidentiary Hearing and Appointment of Counsel
The
Court
finds
that
petitioner
has
not
established
an
entitlement to an evidentiary hearing. A district court shall hold
an evidentiary hearing on a habeas petition “unless the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief . . . ” 28 U.S.C. § 2255(b).
“[I]f the petitioner alleges facts that, if true, would entitle him
-10-
to relief, then the district court should order an evidentiary
hearing and rule on the merits of his claim.” Aron v. United
States, 291 F.3d 708, 714-15 (11th Cir. 2002) (internal quotation
marks and citation omitted).
However, a “district court is not
required to hold an evidentiary hearing where the petitioner’s
allegations are affirmatively contradicted by the record, or the
claims are patently frivolous.”
Id. at 715. See also Gordon v.
United States, 518 F.3d 1291, 1301 (11th Cir. 2008).
when
the
facts
are
viewed
in
the
light
most
Here, even
favorable
to
petitioner, the record establishes that petitioner’s claim is
without merit.
Therefore, the Court finds that an evidentiary
hearing is not warranted in this case, and his motion for an
evidentiary hearing is denied.
Petitioner is not entitled to appointment of counsel in this
case.
“[T]here is no federal constitutional right to counsel in
postconviction proceedings.” Barbour v. Haley, 471 F.3d 1222, 1227
(11th Cir. 2006). “Counsel must be appointed for an indigent
federal habeas petitioner only when the interests of justice or due
process so require.”
(11th Cir. 1983).
An
Schultz v. Wainwright, 701 F.2d 900, 901
No such showing has been made in this case.
evidentiary
hearing
and
appointment
of
counsel
are
unnecessary because it “plainly appears from the face of the motion
. . . and the prior proceedings in this case that the movant is not
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entitled to relief.”
Broadwater v. United States, 292 F.3d 1302,
1303 (11th Cir. 2002); 28 U.S.C. § 2255(b).
Accordingly, it is now
ORDERED:
1.
Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence By a Person in Federal Custody (Cr. Doc
# 116; Cv. Doc. # 1) is DISMISSED as procedurally defaulted, or in
the alternative, is DENIED AS WITHOUT MERIT for the reasons set
forth above.
2.
The Clerk of the Court shall enter judgment accordingly,
terminate any pending motions, and close the civil file. The Clerk
is further directed to place a copy of the civil judgment in the
criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS ARE DENIED. A prisoner seeking a writ of habeas corpus has
no absolute entitlement to appeal a district court’s denial of his
petition.
(2009).
28 U.S.C. § 2253(c)(1); Harbison v. Bell, 556 U.S. 180
“A [COA] may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
28
To make such a showing, Petitioner “must
demonstrate that reasonable jurists would find the district court’s
assessment
of
the
constitutional
claims
debatable
or
wrong,”
Tennard v. Dretke, 542 U.S. 274, 282 (2004) or, that “the issues
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presented
were
further.”
adequate
Miller-El
to
v.
deserve
encouragement
Cockrell,
537
U.S.
to
proceed
322,
336
(2003)(citations and internal quotation marks omitted). Petitioner
has not made the requisite showing in these circumstances.
Further, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to proceed in forma pauperis
on appeal.
DONE AND ORDERED at Fort Myers, Florida, this
October, 2012.
Copies:
AUSA
Andamon Carl Williams
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12th
day of
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