Garcia v. United States of America

Filing 28

ORDER denying 27 Petitioner's Unopposed Motion for Indicative Ruling. Signed by Judge James S. Moody, Jr. on 6/1/2017. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EDWARD BRUNO GARCIA,
Movant,
v.

Case No: 8:16-cv-1620-T-30TGW
Crim. Case No: 8:06-cr-111-T-30TGW

UNITED STATES OF AMERICA,
Respondent.

ORDER
THIS CAUSE comes before the Court on Petitioner's Unopposed Motion for
Indicative Ruling (CV Doc. 27). In the Motion, Petitioner asks for an indicative ruling of
whether the Court would reconsider its denial of Petitioner’s section 2255 motion (CV
Doc. 1) by either granting the motion or clarifying the reason for the denial. 1 The basis of
this request is on an alleged error in the Court’s Order denying the section 2255 motion
(CV. Doc. 24), in which the Court referred to Petitioner’s conviction in Florida case
number 94-CF-9859 as possession of cocaine with intent to distribute instead of simply
possession of cocaine.
The Court denies the Motion for Indicative Ruling because the reasoning in the prior
Order was clear regardless of any alleged error. As explained, the Court denied Petitioner’s
motion because, as indicated in the PSR, Petitioner’s ACCA enhancement was not based
on the residual clause invalidated by Johnson v. United States, 135 S. Ct. 2551 (2015).

1

A motion for reconsideration was not filed because Petitioner already appealed the denial
of his section 2255 motion and that appeal was docketed by the Eleventh Circuit.

Instead, Petitioner’s ACCA enhancement was based on his conviction for serious drug
offenses in cases 94-CF-009859, 96-CF-007437, and 96-CF-015940. To the extent
Petitioner is now arguing that the convictions in those cases do not qualify as serious drug
offenses or that multiple offenses in a single case did not serve as predicate offenses, those
arguments were procedurally defaulted. 2 As such, the Court concludes no clarification is
necessary.
Accordingly, it is ORDERED AND ADJUDGED that Petitioner's Unopposed
Motion for Indicative Ruling (CV Doc. 27) is DENIED.
DONE and ORDERED in Tampa, Florida, this 1st day of June, 2017.

Copies furnished to:
Counsel/Parties of Record

2

As the Court explained in its prior Order:

This dovetails back to the heart of Petitioner’s Motion, which relies on
Johnson to open the door so Petitioner can attack his prior drug convictions under
Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016). A claim based
solely on Mathis, though, does not allow Petitioner to file an untimely section 2255
motion. United States v. Taylor, No. 16-6223, 2016 WL 7093905, at *4 (10th Cir.
Dec. 6, 2016); Dawkins v. United States, 829 F.3d 549, 551 (7th Cir. 2016); In re
Lott, 838 F.3d 522, 523 (5th Cir. 2016). The Court concludes Petitioner has not
shown cause to attack his sentence under Mathis because he failed to first establish
that his sentence is now unconstitutional under Johnson.
(Doc. 24).

2