Harrell v. United States of America

Filing 17

OPINION AND ORDER denying 11 Motion to supplement; denying 13 Motion to Amend 2255; denying 16 second Motion to Vacate. Signed by Judge John E. Steele on 11/13/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL JAMES HARRELL,
Petitioner,
v.

Case No: 2:16-cv-284-FtM-29CM
Case No. 2:11-CR-108-FTM-29CM

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on petitioner's Request to
Supplemental Claim That Relate Back to the Original Motion to
Vacate (Doc. #11) filed on August 8, 2016; Motion to Amend Section
2255 Pursuant to Federal Rules Civil Procedure 15(A)(C)(2) (Doc.
#13) filed on August 31, 2016; and Second Amend Motion to Vacate
(Doc. #16) filed on June 30, 2017.

All three motions seek to

supplement or amend Ground Eleven of the original April 19, 2016
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or correct
Sentence By a Person in Federal Custody (Doc. #1), which argues
that bank robbery does not have an element of physical force and
therefore the convictions under § 924(c) cannot stand.

The Court

finds that the argument is foreclosed by current binding precedent,
and therefore the motions to supplement or amend will be denied as
without merit.

On September 19, 2012, a grand jury in Fort Myers returned a
nine-count Second Superseding Indictment (Cr. Doc. #139) charging
conspiracy

to

commit

robbery

by

force

and

violence,

and

by

intimidation, assault by use of a dangerous weapon in violation of
18 U.S.C. §§ 2113(a) and 2113(d) in Count One; charging conspiracy
to use and carry a firearm during and relation to, and to possess
a firearm in furtherance of bank robbery in violation of 18 U.S.C.
§ 924(o) in Count Two; charging robbery by force and violence and
by intimidation, and assault by dangerous weapon all in violation
of 18 U.S.C. §§ 2113(a) and 2113(d), and § 2 in in Counts Three,
Five, and Seven; and charging bank robbery by force and violence
and by intimidation in violation of 18 U.S.C. § 2113(a) and § 2 in
Count Nine.
As relevant here, Counts Four, Six, and Eight of the Second
Superseding Indictment (Cr. Doc. #139) charged petitioner with
using and carrying a firearm during and in relation to the bank
robbery

alleged

in

Counts

Three,

Five,

and

Seven,

and

with

possession of a firearm in furtherance of the bank robbery all in
violation of 18 U.S.C. § 924(c)(1)(A)(ii) and § 2.
jury

trial

and

guilty

verdicts,

petitioner

After a lengthy

was

sentenced

to

concurrent terms of 60 months as to Counts 1, 2, 3, 5, 7, 9, 10
and 11, a consecutive term to this sentence of 84 months as to
Count 4, a term of 300 months consecutive to Count 4 as to Count

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6, and 300 months consecutive to Count 6 as to Count 8, for a total
term of 744 months of imprisonment.

(Cr. Doc. #254.)

Petitioner relies on In re Pinder, 824 F.3d 977, 978 (11th
Cir. 2016), to argue that § 924(c) is unconstitutional in light of
Johnson v. United States, 135 S. Ct. 2551 (2015), which found that
the similarly worded § 924(e) was unconstitutionally vague.

In

the

an

case

of

In

re

Pinder,

the

Eleventh

Circuit

granted

application to file a second or successive 2255 motion to vacate
on the issue, but deferred to the district court to consider the
issue in the first instance.

The constitutionality of § 924(c)

remains unsettled, In re Fleur, 824 F.3d 1337, 1340 (11th Cir.
2016), however the Eleventh Circuit has since found that armed
bank robbery in violation of §§ 2113(a) and (d) qualifies as a
crime of violence under § 924(c)(3)(A)’s element clause even if
the definition of a crime of violence under § 924(c)(3)(B) is found
to be unconstitutionally vague, In re Hines, 824 F.3d 1334, 1337
(11th Cir. 2016).

This is binding precedent.

Freeman v. United

States, No. 16-15678-B, 2017 WL 3923326, at *3 (11th Cir. Mar. 30,
2017), cert. denied, No. 17-5049, 2017 WL 2855226 (U.S. Oct. 2,
2017).

Since Counts Three, Five, and Seven each contain an element

of physical force, see, e.g., Estrella v. United States, No. 2:11CR-40-FTM-29CM, 2017 WL 4233053, at *5 (M.D. Fla. Sept. 22, 2017)
(finding that using and carrying a firearm in furtherance of a

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Hobbs Act robbery qualified as a crime of violence), the argument
is foreclosed and any amendment would be futile.
Accordingly, it is hereby
ORDERED:
Petitioner's Request to Supplemental Claim That Relate Back
to the Original Motion to Vacate (Doc. #11), Motion to Amend
Section 2255 Pursuant to Federal Rules Civil Procedure 15(A)(C)(2)
(Doc. #13), and Second Amend Motion to Vacate (Doc. #16) are
DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of November, 2017.

Copies:
Petitioner
AUSA

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13th

day