Smith v. United States of America
Filing
20
OPINION AND ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:09-cr-59-FTM-29CM), 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 10/25/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DETRICK SMITH,
Petitioner,
v.
Case No: 2:15-cv-532-FtM-29CM
Case No. 2:09-CR-59-FTM-29CM
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#140) 1.
The government filed a Response in Opposition to Motion
(Cv. Doc. #8), and petitioner filed a Reply (Cv. Doc. #11).
The
Court finds that oral arguments are not required, and that an
evidentiary hearing is not warranted, Hernandez v. United States,
778 F.3d 1230, 1232-33 (11th Cir. 2015).
1The
Court will make references to the dockets in the instant
action and in 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.”
I.
On August 5, 2009, a federal grand jury in Fort Myers, Florida
returned a one-count Indictment (Cr. Doc. #1) charging petitioner
with possession of firearms (a 9mm Luger and a .38 caliber Taurus)
and ammunition after having been convicted of a felony, all in
violation of 18 U.S.C. § 922(g)(1), § 924(e), and § 2.
The
Indictment identified several prior felony convictions, including
robbery with a firearm, sale or delivery of cocaine, two separate
convictions
for
possession
of
cocaine,
felony
battery,
and
possession of a controlled substance.
Counsel filed a Motion to Suppress Evidence (Cr. Doc. #23) on
petitioner’s
behalf,
which
was
denied.
(Cr.
Doc.
#48.)
Petitioner signed a Waiver of Right to Trial by Jury and Request
for Specific Findings of Fact (Cr. Doc. #54), which was approved
by the Court, and the bench trial was held on February 3, 2010.
(Cr. Docs. #58, #59.)
By written Opinion and Order, the Court
found petitioner not guilty as to the Skyy Industries 9 mm Luger,
and otherwise guilty of count One as to the Taurus .38 caliber
revolver, serial number JB61158, the three rounds of Master .38
caliber ammunition which were loaded in the Taurus revolver, and
the seven rounds of Winchester-Western 9 mm Luger ammunition loaded
in the Skyy Industries Luger.
(Cr. Doc. #61.)
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On July 12, 2010, the Court heard arguments on defendant’s
objection to his classification as an armed career criminal.
Doc. #68.)
sustained
(Cr.
In an Opinion and Order (Cr. Doc. #74), the Court
the
objection,
finding
that
the
felony
conviction was not a qualifying predicate conviction.
battery
On July 20,
2010, the Court sentenced petitioner to a term of imprisonment of
108 months, to be served partially concurrent with the term imposed
in Lee County Circuit Court, Case No. 09-CF-15184, beginning from
the date of the entry of this judgment, followed by a term of
supervised release.
(Cr. Doc. #76.)
Judgment (Cr. Doc. #77) was
filed on July 21, 2010.
Petitioner
appealed
the
appealed
sentence.
the
conviction,
The
and
the
Eleventh
Circuit
government
affirmed
the
conviction, but vacated and remanded the case for resentencing
under the Armed Career Criminal Act.
The Eleventh Circuit found
that felony battery did qualify as a violent felony because the
statute
requires
purposeful,
violent,
and
aggressive
conduct
similar to burglary, arson, extortion, or crimes involving the use
of explosives.
United States v. Smith, 448 F. App'x 936, 940
(11th Cir. 2011).
A writ of certiorari was denied.
Smith v.
United States, 568 U.S. 1192 (2013).
On April 1, 2013, petitioner was resentenced to a term of 180
months
of
imprisonment,
with
the
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Armed
Career
Criminal
Act
enhancement.
The Judgment Upon Remand (Cr. Doc. #126) was filed
on April 2, 2013.
Petitioner appealed this second sentence.
The
Eleventh Circuit noted that the ACCA designation had become the
law of the case, and affirmed the sentence.
Smith, 559 F. App'x 884, 889 (11th Cir. 2014).
United States v.
The Petition for
writ of certiorari was denied, Smith v. United States, 135 S. Ct.
147 (2014), and the request for rehearing was denied, Smith v.
United States, 135 S. Ct. 1490 (2015).
On June 26, 2015, the United States Supreme Court decided
Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II),
which was made retroactively applicable on collateral review by
Welch v. United States, 136 S. Ct. 1257 (2016).
The undersigned
reappointed the Federal Public Defender to represent petitioner
for any post-conviction relief, if appropriate.
(Cr. Doc. #138.)
The pending motion under 28 U.S.C. § 2255 was timely filed by
counsel.
On October 4, 2016, petitioner filed a Notice of Supplemental
Authority and Request for Oral Argument (Cv. Doc. #13) in light of
the ruling in United States v. Vail-Bailon, 838 F.3d 1091 (11th
Cir. 2016) determining that Vail-Bailon’s prior conviction for
felony battery did not qualify as a crime of violence, and vacating
Vail-Bailon’s sentence for further proceedings.
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On November 21,
2016, the Eleventh Circuit granted the government’s request for a
rehearing, and vacated the prior opinion pending rehearing.
On rehearing en banc in Vail-Bailon, the Eleventh Circuit
determined that a felony battery conviction does qualify as a crime
of violence under the elements clause of the Armed Career Criminal
Act.
As
a
reinstated.
result,
Vail-Bailon’s
sentence
was
affirmed
and
United States v. Vail-Bailon, 868 F.3d 1293 (11th
Cir. Aug. 25, 2017).
II.
Petitioner raises only one issue:
Petitioner asserts that
he is no longer subject to an Armed Career Criminal Act sentence
enhancement because his prior felony battery conviction no longer
qualifies as a “violent felony” under the applicable statute.
The
government responds that the prior conviction for felony battery
still qualifies as a crime of violence under the elements clause
of the statute, and therefore relief should be denied.
A defendant charged with being a felon in possession of a
firearm or ammunition faces a statutory maximum of ten years
imprisonment.
18 U.S.C. §§ 922(g), 924(a)(2).
Under the ACCA,
however, a defendant who has three previous felony convictions 1
for a violent felony or a serious drug offense, or both, is subject
1
The other two qualifying felonies are not at issue in the Motion.
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to an enhanced sentence of at least fifteen years imprisonment.
18 U.S.C. 924(e)(1).
Under the ACCA,
the term “violent felony” means 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).
Subsection (i) is referred to as the
“elements clause”; the first clause of subsection (ii) is referred
to as the “enumerated offenses clause,” which the second clause is
known as the “residual clause”.
Beeman v. United States, 871 F.3d
1215, 1221 (11th Cir. 2017).
In Johnson II, the United States
Supreme
“residual
Court
held
that
the
clause”,
18
U.S.C.
§
924(e)(2)(B)(ii), was unconstitutionally vague and a violation of
the Due Process Clause of the United States Constitution.
II was made retroactive to cases on collateral review.
Johnson
Welch v.
United States, 136 S.Ct. 1257, 1268 (2016).
Felony battery is not an enumerated offense, and the residual
clause is no longer applicable.
battery
is
also
not
within
Petitioner asserts that felony
the
government argues to the contrary.
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elements
clause,
while
the
The Eleventh Circuit has now
held that a felony battery conviction under Florida law is a crime
of violence within the meaning of the ACCA.
at
1299-1302;
United
States
v.
Green,
Vail-Bailon, 868 F.3d
No.
14-12830,
4321551, at *17 (11th Cir. Sept. 29, 2017).
2017
WL
Therefore, this
argument is foreclosed and relief must be denied.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Petitioner’s Motion Under 28 U.S.C. Section 2255 to
Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #1; Cr. Doc. #140) is DENIED.
2.
The Clerk of the Court shall enter judgment accordingly
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 (COA) 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.
28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
showing,
Petitioner
28 U.S.C. § 2253(c)(2).
“must
demonstrate
that
To make such a
reasonable
jurists
would find the district court’s assessment of the constitutional
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claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations omitted).
Petitioner has not made the
requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
of October, 2017.
Copies:
Petitioner
AUSA
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25th
day
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