Mills v. United States of America

Filing 25

ORDER denying 24 Motion for Certificate of Appealability. Signed by Judge Susan C Bucklew on 2/3/2017. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LAWRENCE MILLS
Petitioner,
v.

CASE NO. 8:16-cv-892-T-24TGW

UNITED STATES OF AMERICA,
/

ORDER
Petitioner Lawrence Mills, represented by counsel, filed an Application for
Certificate of Appealability (“COA”). (Doc.17). Upon consideration of Petitioner’s
Motion to Vacate pursuant to 28 U.S.C. § 2255 as well as Petitioner’s underlying criminal
case, Petitioner’s Application is denied because Petitioner has not made a showing of the
denial of a constitutional right under 28 U.S.C. § 2253(c)(2).
Petitioner was sentenced as an armed career criminal under 18 U.S.C. § 924(e).
Petitioner’s three prior violent felonies were two aggravated assaults under Florida
Statute § 784.021 and one aggravated battery under Florida Statute § 784.045. Petitioner
argues he is entitled to a COA because reasonable jurists could debate whether those
convictions qualify as ACCA predicate offenses in light of Johnson v. United States, 135
S. Ct. 2551 (2015). Petitioner acknowledges that Turner v. Warden Coleman FCI
(Medium), 709 F. 3d. 1328, (11th Cir. 2013), held that aggravated assault in violation of

Florida Statute §784.021 and aggravated battery in violation of Florida Statute § 784.045
are violent felonies under the ACCA’s elements clause and that the Eleventh Circuit
recently affirmed Turner’s binding effect in United States v. Golden ___F.3d___, 2017
WL 343523 (11th Cir. Jan. 24, 2017), but he points to a concurring opinion in Golden
suggesting Turner was wrongly decided. However, since there is currently binding
precedent in the Eleventh Circuit, reasonable jurists could not find it debatable under
Slack v. McDaniel, 529 U.S. 473, 478 (2000), as to whether Petitioner’s convictions for
aggravated assault and aggravated battery qualify as crimes of violence under §
924(e)(B)(1).
ACCORDINGLY, for the reasons expressed, Petitioner’s Application for
Certificate of Appealability is denied.
DONE AND ORDERED at Tampa, Florida, on February 3, 2017.

Copies to: Counsel of Record

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