Harris v. USA

Filing 13

ORDER: Movant's Motion to Vacate, Set Aside or Correct Sentence 1 is DENIED. All pending motions are denied as moot. The Clerk is directed to close this case. The Clerk is also directed to terminate as pending Doc. 90 in Petitioner criminal case, case number 8:12-cr-80-T-30TBM. Because Movant is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr. on 8/16/2017. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ROBERT G. HARRIS,
Movant,
v.

Case No: 8:16-cv-1600-T-30TBM
Crim. Case No: 8:12-cr-80-T-30TBM

USA,
Respondent.

ORDER
THIS CAUSE comes before the Court on Movant’s Motion to Vacate, Set Aside or
Correct Sentence (Doc. 1), and Movant's Memorandum in support (Doc. 12). In his Motion,
Movant argues that his armed career criminal sentence is unconstitutional because he lacks
the predicate prior convictions. But because Movant admits he has three prior convictions
for (1) aggravated assault, (2) robbery, and (3) robbery (Doc. 12, pp. 4–5), the Court
concludes his Motion must be denied because the Eleventh Circuit has clarified that
convictions for aggravated assault and robbery continue to qualify as Armed Career
Criminal Act “violent felony” convictions after Johnson v. United States, 135 S.Ct. 2551
(2015). See United States v. Fritts, 841 F.3d 937, 939–40 (11th Cir. 2016), cert. denied,
137 S.Ct. 2264 (2017) (holding, “[W]e must conclude that a Florida armed robbery
conviction … qualifies as a violent felony under the ACCA’s elements clause.”); United
States v. Golden, 854 F.3d 1256, 1256–57 (11th Cir. 2017) (holding that a conviction for
aggravated assault constitutes a “violent felony” under the ACCA’s elements clause).

Accordingly, it is ORDERED AND ADJUDGED that:
1.

Movant’s Motion to Vacate, Set Aside or Correct Sentence (Doc. 1) is
DENIED.

2.

All pending motions are denied as moot.

3.

The Clerk is directed to close this case.

4.

The Clerk is also directed to terminate as pending Doc. 90 in Petitioner
criminal case, case number 8:12-cr-80-T-30TBM.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Movant is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (“COA”). Id. “A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial of a constitutional right.”
Id. at § 2253(c)(2). To make such a showing, Movant “‘must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong,’” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that “the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks omitted). Movant has not made the requisite showing in these
circumstances.

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Finally, because Movant is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida, this 16th day of August, 2017.

Copies furnished to:
Counsel/Parties of Record

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