Cooks v. United States of America

Filing 13

ORDER granting 11 Petitioner's Notice construed as a Motion to Reconsider Petitioner's previously filed Motion to Appoint Counsel. Ross Haine is appointed to represent Petitioner. The Clerk of the Court shall issue the appropriate CJA form. Signed by Judge Marcia Morales Howard on 2/2/2016. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DANIEL OMAR COOKS,
Petitioner,
vs.

Case No.:

3:13-cv-1152-J-34JBT
3:12-cr-11-J-34JBT

UNITED STATES OF AMERICA,
Respondent.
___________________________________/
ORDER
This case is before the Court on Petitioner Daniel Omar Cooks’s “Presentation of
the Respondent’s Confession of Error of Florida Burglaries Being Nonqualifying Violent
Felonies to Trigger Guideline and Statutory Enhancements.” (Doc. 11, Notice). Cooks
claims that the United States has conceded in other cases, in the wake of Johnson v.
United States, 135 S. Ct. 2551 (2015), that a conviction for burglary under Florida Stat. §
812.13 does not categorically qualify as a “violent felony” for purposes of the Armed
Career Criminal Act’s (ACCA’s) 15-year mandatory minimum sentence. See 18 U.S.C. §
924(e). Cooks has argued that his prior convictions for burglary do not qualify as ACCA
“violent felonies,” and that he should thus be resentenced without application of the 15year mandatory minimum sentence.
The Court will take Cooks’s Notice under advisement. The Court also notes that
Cooks has previously moved to appoint counsel (Doc. 9, Motion to Appoint Counsel), but
the Court denied the motion without prejudice, partly based on the view that Johnson
does not apply retroactively (Doc. 10, Order Denying Motion to Appoint Counsel).

1 

Subsequent developments have caused the Court to reconsider whether Johnson
applies retroactively on collateral review, and the Court has determined to construe
Cooks’s Notice as a motion to reconsider the order denying his Motion to Appoint
Counsel. In Gregory Welch v. United States, cert. granted, No. 15-6418 (2016), the
Supreme Court granted certiorari review to address whether Johnson applies
retroactively on collateral review.1

Notably, the United States has sided with post-

conviction petitioners and taken the position that Johnson does apply retroactively. See
Brief for the United States at 13-17, Harrimon v. United States, No. 15-7426 (2015). The
Administrative Office of the United States Courts also recently issued a memorandum
recommending a program for the appointment of counsel to § 2255 movants seeking relief
due to Johnson.2 This reflects that Johnson claims may be worthy of the appointment of
counsel. Additionally, despite holding that Johnson does not apply retroactively for
purposes of an application to file a second or successive motion to vacate, the Eleventh
Circuit suggested, albeit only in dicta, that Johnson would apply retroactively to a first
motion to vacate. See In re Rivero, 797 F.3d 986, 991 (11th Cir. 2015). In light of these
considerations, the Court has determined to appoint counsel for Cooks.
The Court will appoint Ross Haine, II, Esq., to represent Cooks in this matter, and
to brief this Court on whether the Court should vacate Petitioner’s sentence on account

1

The Supreme Court’s order granting certiorari does not expressly identify the issue
to be addressed, but the only issues raised in Welch’s petition for a writ of certiorari are
(i) whether the district court erred in denying the § 2255 motion to vacate, which alleged
that one of Welch’s prior convictions no longer qualified as an ACCA predicate conviction,
and (ii) whether Johnson applies retroactively on collateral review. Petition for Writ of
Certiorari, Welch v. United States (No. 15-6418). It is thus apparent that the Supreme
Court’s grant of certiorari review is to decide Johnson’s retroactivity.
2
See http://infoweb.ao.dcn/bcastpdf/DIR15-148.pdf.
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of Johnson. However, counsel’s appointment is not limited to the Johnson issue; counsel
may brief the Court on any other issues of merit raised in Cook’s Motion to Vacate.
Counsel may consult Cooks to determine which issues should be pursued, and which, if
any, lack a fair chance of success on the merits and should not be pursued.
Accordingly, it is hereby
ORDERED:
1.

Petitioner Daniel Omar Cooks’s Notice (Doc. 11) is TAKEN UNDER

ADVISEMENT.
2.

Petitioner’s Notice (Doc. 11), construed as a Motion to Reconsider Cook’s

previously filed Motion to Appoint Counsel (Doc. 9) is GRANTED. The Court appoints
Ross Haine, II, Esq., to represent Cooks in pursuing vacatur of his sentence under 28
U.S.C. § 2255.
3.

The Clerk of the Court shall issue the appropriate federal Criminal Justice

Act form – a CJA 20 (“Appointment of and Authority to Pay Court-Appointed Counsel”) –
to Mr. Haine forthwith.
DONE AND ORDERED at Jacksonville, Florida this 2nd day of February, 2016.

lc 19
Copies:
Petitioner Daniel Omar Cooks
Counsel of record
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