Sanders v. Warden, FCC Coleman - Low

Filing 30

ORDER granting in part and denying in part 29 Motion to Lift Stay and Adopt and Preserve Arguments. The stay previously entered in this case is lifted. Petitioner is allowed to adopt the arguments set forth in the defendant's briefs in Fritts. The Court denies Petitioner's request for a certificate of appealability. This Court should grant an application for certificate of appealability only if the Petitioner makes "a substantial showing of the denial of a constitution al right." 28 U.S.C. Sec. 2253(c)(2). Petitioner has failed to make a substantial showing of the denial of a constitutional right. The Amended Motion to Vacate, Set Aside, or Correct Sentence (Doc. 17 ) is DENIED. This case is DISMISSED with prejudice.The Clerk of the Court is directed to enter judgment in favor of Respondent and to close this case. A copy of this Order and the judgment shall also be filed in criminal case number 6:12-cr-53-Orl-31TBS.The Clerk of the Court is directed to terminate any related section 2255 motion filed in criminal case number 6:12-cr-53-Orl-31TBS. Signed by Judge Gregory A. Presnell on 12/15/2016. (TKW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

WILLIE JEROME SANDERS,
Petitioner,
v.

Case No: 6:16-cv-915-Orl-31TBS
(6:12-cr-53-Orl-31TBS)

UNITED STATES OF AMERICA,
Respondent.
/
ORDER
This cause is before the Court on Petitioner’s Unopposed Motion to Lift Stay and
Adopt and Preserve Arguments (Doc. 29).

Petitioner currently has pending an

Amended Motion to Vacate, Set Aside, or Correct Sentence (“Amended Motion to
Vacate,” Doc. 17), which he filed pursuant to 28 U.S.C. § 2255.
Petitioner challenged “his sentence imposed pursuant to the Armed Career
Criminal Act (ACCA) based on Johnson v. United States, 135 S. Ct. 2551 (2015).” (Doc. 29
at 1). Petitioner subsequently filed an Unopposed Motion to Stay 28 U.S.C. § 2255
Proceedings (Doc. 26), which the Court granted.

(Doc. 27).

The case was stayed

pending a ruling from the Eleventh Circuit Court of Appeals in United States of America
v. Derwin Darryl Fritts, Appeal No. 15-15699-CC. As noted by Petitioner, the “pivotal
issue in this case—whether Florida robbery remains a ‘violent felony’ in the wake of

Johnson—was before the Eleventh Circuit in United States v. Fritts, appeal number 1515669.” (Doc. 29 at 1).
In the present motion, Petitioner states that the “Eleventh Circuit has now
affirmed the sentence in Fritts, holding that Florida robbery is a `violent felony.’ See
United States v. Fritts, ___ F.3d ___, 2016 WL 6599553 (Nov. 8, 2016).” (Id.). As a result,
Petitioner requests that the stay be lifted; that the Amended Motion to Vacate be
denied; that he be allowed to adopt the arguments set forth in the defendant’s briefs in
Fritts; and that the Court issue a certificate of appealability. The Government does not
object to Petitioner’s request to lift the stay and adopt the arguments set forth in Fritts,
but it opposes Petitioner’s request for a certificate of appealability. (Doc. 29 at 3). The
Court finds that the instant motion should be granted in part and denied in part as set
forth below.
Accordingly, it is ORDERED and ADJUDGED as follows:
1.

Petitioner’s Unopposed Motion to Lift Stay and Adopt and Present

Arguments (Doc. 29) is GRANTED in part and DENIED in part. The stay previously
entered in this case is lifted. Petitioner is allowed to adopt the arguments set forth in
the defendant’s briefs in Fritts.
The Court denies Petitioner’s request for a certificate of appealability. This Court
should grant an application for certificate of appealability only if the Petitioner makes
“a substantial showing of the denial of a constitutional right.” 28 U.S.C. ' 2253(c)(2).
Petitioner has failed to make a substantial showing of the denial of a constitutional
right.

2.

The Amended Motion to Vacate, Set Aside, or Correct Sentence (Doc. 17)

is DENIED.
3.

This case is DISMISSED with prejudice.

4.

The Clerk of the Court is directed to enter judgment in favor of

Respondent and to close this case. A copy of this Order and the judgment shall also be
filed in criminal case number 6:12-cr-53-Orl-31TBS.
5.

The Clerk of the Court is directed to terminate any related section 2255

motion filed in criminal case number 6:12-cr-53-Orl-31TBS.
DONE and ORDERED in Orlando, Florida on December 15, 2016.

Copies furnished to:
Counsel of Record
OrlP-2 12/15