Perez v. United States of America

Filing 7

OPINION AND ORDER granting 1 Motion to vacate/set aside/correct sentence (2255); vacating judgment in underlying criminal case, Case No. 2:13-cr-3-FTM-29DNF. The Clerk shall enter judgment accordingly, place a copy of the judgment in the criminal case, and close the civil case. Signed by Judge John E. Steele on 5/3/2017. (RKR)

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

Case No: 2:17-cv-161-FtM-29MRM
Case No. 2:13-CR-3-FTM-29DNF

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter came 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. #131) 1 filed on
March

16,

2017,

by

appointed

counsel.

The

Court

initially

directed petitioner to supplement the motion with a memorandum of
law, and for the government to respond.

(Cv. Doc. #3.)

Before

the deadline expired, petitioner and the government filed a Joint
Stipulation Regarding Section 2255 Motion (Cv. Doc. #6) agreeing
that petitioner’s convictions for arson and battery on detention
staff no longer qualify as an Armed Career Criminal Act predicate
offenses in light of Johnson v. United States, 135 S. Ct. 2551

1

The Court will reference the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”

(2015),

and

that

he

does

not

otherwise

have

three

predicate

offenses necessary for the enhancement.
On January 9, 2013, a federal grand jury in Fort Myers,
Florida returned a one-count Indictment (Cr. Doc. #1) charging
petitioner for possession of a firearm after having been convicted
of a felony offense, and specifically: (1) First Degree Arson in
Florida; (2) Battery on Detention or Commitment Facility Staff in
Florida;
Florida.
to trial.

and

(3)

Aggravated

Assault

with

a

Deadly

Weapon

in

Petitioner entered a plea of not guilty and proceeded
On April 17, 2013, a jury found petitioner guilty.

(Cr. Doc. #58.)
On September 23, 2013, the Court sentenced petitioner as an
Armed Career Criminal to a term of imprisonment of 300 months, to
be followed by a term of supervised release.
Judgment

(Cr.

Doc.

#67)

was

filed

on

(Cr. Doc. #66.)

September

24,

2013.

Petitioner filed a Notice of Appeal, and the Eleventh Circuit
affirmed in part, vacated in part, and remanded for plain error.
(Cr. Doc. #83.)

As a result, the Judgment was vacated and the

case scheduled for resentencing.
Petitioner

was

resentenced

(Cr. Doc. #85.)
to

a

term

of

293

months

of

imprisonment, to be served concurrently with Lee County Circuit
Court Case No. 13-CF-0174, also followed by a term of supervised
release.

(Cr. Docs. ## 108, 111.)

- 2 -

Judgment Upon Remand (Cr. Doc.

#112) was filed on April 23, 2015.
affirmed on appeal.

This Judgment on Remand was

(Cr. Doc. #125.)

As the parties agree that the ACCA enhancement no longer
applies, the Court will vacate the Judgment on Remand and reappoint the Federal Public Defender’s Office for purposes of a
resentencing hearing.
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. #131) is GRANTED.
2. The

Judgment

on

Remand

(Cr.

Doc.

#112)

filed

in

the

criminal case is vacated.
3. The Clerk shall appoint the Federal Public Defender’s
Office

to

represent

defendant

for

purposes

of

re-

sentencing.
4. The United States Marshal’s Office shall facilitate and
effectuate
sentencing. 1

the

transportation

of

defendant

for

re-

Defendant shall be available in Fort Myers

on or before October 6, 2017.

The Bureau of Prisons indicates that petitioner (USM #57944-018)
is currently housed at USP Allenwood in the Middle District of
Pennsylvania.
1

- 3 -

5. The United States Probation Office shall issue a memorandum
based

on

the

retroactive

application

of

Johnson,

and

distribute copies of the memorandum to appointed counsel,
the Office of the United States Attorney, and defendant on
or before October 20, 2017.
6. The parties shall appear for re-sentencing before the
undersigned on, Wednesday, November 1, 2017, at 3:30 p.m.,
Courtroom A, Sixth Floor, Fort Myers, Florida.

A separate

notice will issue.
7. 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
and to make a notation on the docket that the criminal
judgment has been vacated.
DONE and ORDERED at Fort Myers, Florida, this
May, 2017.

Copies:
U.S. Marshal (3 copies, certified)
Petitioner
AUSA
FPD

- 4 -

3rd

day of