Garcia v. United States of America
Filing
31
ORDER: Petitioner's Motion for Certificate of Appealability 30 is GRANTED IN PART. Petitioner is entitled to a Certificate of Appealability as to whether Petitioner has the burden to show his armed career criminal sentence may have relied on the invalidated ACCA residual clause or whether Petitioner must show his sentence actually relied on the ACCA residual clause. Signed by Judge James S. Moody, Jr. on 6/30/2017. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EDWARD BRUNO GARCIA,
Petitioner,
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 Motion for Certificate of
Appealability (Doc. 30). In the Motion, Petitioner requests a Certificate of Appealability
(“COA”) on three issues: (1) whether Petitioner must show his sentence may have relied
on the invalidated residual clause of the Armed Career Criminal Act (“ACCA”), or whether
he must show it actually relied on the residual clause; (2) whether Petitioner can show
cause and prejudice for procedurally defaulting his claim that his ACCA sentence is
unconstitutional; and (3) whether Petitioner was unconstitutionally sentenced above the
statutory maximum for his conviction of possession of a firearm by a convicted felon. The
Court concludes Petitioner is entitled to a COA on the first issue.
PROCEDURAL HISTORY
Petitioner was indicted in March 2006 for conspiracy to distribute and possession
with intent to distribute cocaine and MDMA (count one), for aiding and abetting Jose Perez
in knowingly and intentionally possessing with intent to distribute MDMA (count two),
and for being a convicted felon in possession of ammunition (count three). (CR Doc. 17).
Petitioner pled guilty to counts one and three, and count two was dismissed. (CR Docs. 50
and 60). On December 14, 2006, the Court entered judgment against Petitioner and
sentenced him to 200 months’ imprisonment on counts one and three, with the sentences
to run concurrently. (CR Doc. 79). The Court also sentenced Petitioner to eight years’ and
five years’ supervised release on counts one and three respectively. (CR Doc. 79).
The Court’s sentence was imposed after consideration of the PSR, which
recommended Petitioner be sentenced as an armed career criminal, under 18 U.S.C. section
924(e), and as a career offender, under USSG section 4B1.1. Because Petitioner’s prior
convictions are relevant to these enhancements, the Court will set them out here in full:
Case No. 1
94-CF-001406
94-CF-006517
94-CF-009859
96-CF-007437
96-CF-015940
Offense
Burglary of a Structure
Carrying a Concealed Firearm
Possession of Cocaine 2
RICO
Conspiracy to Commit RICO
Conspiracy to Traffic in Cocaine
Conspiracy to Traffic in Cannabis
Possession of MDMA with Intent
to Sell/Deliver
Trafficking in Cocaine
Date of Offense
2/1/1994
5/19/1994
8/24/1994
1/1/1995 to 7/1/1996
1/1/1995 to 7/1/1996
1/1/1995 to 7/1/1996
1/1/1995 to 7/1/1996
6/26/1996
10/18/1996
(CR Doc. 96). The PSR provided that the convictions in cases 94-CF-009859, 96-CF007437, and 96-CF-015940 (the “PSR Cases”) were relied on as the qualifying prior
1
All of the case numbers refer to cases in the Thirteenth Judicial Circuit of Florida.
2
In its prior order, the Court mistakenly listed this conviction as Possession of Cocaine
with Intent to Sell/Deliver. But that mistake had no bearing on the Court’s ruling and rationale.
2
convictions to enhance Petitioner’s sentence. (CR Doc. 96, ¶ 48). Petitioner did not object
to the PSR (CR Doc. 92, 4:13–19), and did not appeal.
Within a year of the Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015), Petitioner filed his section 2255 motion. In it, Petitioner argued his armed
career criminal sentence is unconstitutional because his “convictions for burglary of a
structure and carrying a concealed firearm no longer qualify as ‘violent felonies.’” (CV
Doc. 12, p. 3). And, Petitioner argued, he does not have three other qualifying offenses that
occurred on separate occasions. Petitioner did not challenge his career offender
designation.
After considering the motion, the Government’s response, a reply, and sur-reply,
the Court denied Petitioner’s motion. The Court’s reasoning was two-fold: First, Petitioner
had not demonstrated that his armed career criminal sentence actually relied on his
convictions for burglary of a structure or carrying a concealed firearm. Second, Petitioner
had procedurally defaulted his ability to challenge whether his multiple serious drug
offense convictions could serve as the predicate ACCA convictions, and he could not
demonstrate cause for the procedural default. 3 When discussing the procedural default, the
Court explained that the thrust of Petitioner’s arguments were based on Mathis v. United
States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016), which is not a basis to file a section 2255
motion more than a year after his sentence became final. Finally, the Court noted that
3
The Court did not address the prejudice prong of Petitioner’s argued exception to the
procedural default rule.
3
removing the ACCA designation would have no effect on Petitioner’s sentence because his
offense level was based on his career offender designation, which Petitioner did not
challenge.
DISCUSSION
A COA is required to appeal a final order in a proceeding under 28 U.S.C. section
2255. To obtain a COA, a section 2255 movant must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2255(c)(2). The movant satisfies this
requirement by demonstrating that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong,” or that the issues “deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Having
considered Petitioner’s request, the Court concludes Petitioner is entitled to a COA for the
first issue he raises.
A. Whether Petitioner Has Burden to Show His Sentence May Have or
Actually Relied on Invalidated ACCA Residual Clause
The Court concludes Petitioner is entitled to a COA on the issue of what his burden
of proof is in his section 2255 motion. The Eleventh Circuit has issued conflicting opinions
about what a section 2255 petitioner must prove. In In re Moore, 830 F.3d 1268, 1273
(11th Cir. 2016), the Eleventh Circuit explained:
[T]he district court cannot grant relief in a § 2255 proceeding unless the
movant meets his burden of showing that he is entitled to relief, and in this
context the movant cannot meet that burden unless he proves that he was
sentenced using the residual clause and that the use of that clause made a
difference in the sentence. If the district court cannot determine whether the
residual clause was used in sentencing and affected the final sentence—if the
court cannot tell one way or the other—the district court must deny the §
2255 motion. It must do so because the movant will have failed to carry his
4
burden of showing all that is necessary to warrant § 2255 relief.
This opinion is in line with this Court’s reasoning on the issue. Contrarily, though, another
panel of the Eleventh Circuit explained less than a week later in In re Chance, 831 F.3d
1335, 1338–42 (11th Cir. 2016), that it believed the In re Moore dicta was wrong. Because
of this split within the Eleventh Circuit, it is obvious that reasonable jurists would find the
Court’s reliance on In re Chance’s reasoning debatable. As such, Petitioner is entitled to a
COA on this issue.
B. Whether Petitioner Can Show Cause and Prejudice for Procedurally
Defaulting His Challenge to His ACCA Sentence
The Court concludes Petitioner is not entitled to a COA on this issue because it is
inapplicable to this case. Petitioner argues that “reasonable jurists can debate whether Mr.
Garcia can show cause for his default, because the legal basis of his claim was unavailable
at the time for filing his direct appeal.” (CV Doc. 30, p. 10). Petitioner goes on to argue
that his claim was not available because, until Johnson, “no court had held the residual
clause void for vagueness, and the Supreme Court had twice rejected such challenges.”
(CV Doc. 30, p. 11). But the Court’s Order denying Petitioner’s section 2255 motion did
not say Petitioner could not show cause for procedurally defaulting his Johnson claim.
Rather, the Order stated (1) Petitioner had not demonstrated he had a Johnson claim; and
(2) Petitioner had procedurally defaulted his ability to challenge whether his multiple
serious drug offense convictions could serve as the predicate convictions for his ACCA
sentence. The Court’s procedural default ruling, therefore, did not concern Petitioner’s
Johnson claim. Thus, no COA should be issued.
5
C. Whether Petitioner Was Sentenced above the Statutory Maximum for His
Possession of a Firearm by Convicted Felon Conviction
The Court concludes Petitioner is not entitled to a COA on his third issue because
the Court did not address it in its Order denying Petitioner’s section 2255 motion.
Petitioner’s third issue essentially re-argues the merits of the section 2255 motion.
Specifically, Petitioner argues that reasonable jurists could debate whether Petitioner’s
remaining convictions can serve as sufficient predicate offenses for Petitioner’s ACCA
sentence. But as explained above, the Court did not get to that part of the analysis in its
Order. Instead, the Court denied Petitioner’s section 2255 motion because (1) Petitioner
had not demonstrated he had a Johnson claim; and (2) Petitioner had procedurally defaulted
his ability to challenge whether his multiple serious drug offense convictions 4 could serve
as the predicate convictions for his ACCA sentence. While the Court believes that guidance
from the Eleventh Circuit on the issues Petitioner raises would be useful, the Court does
not believe it appropriate to issue a COA for issues unrelated to the reasoning in its Order.
Accordingly, it is ORDERED AND ADJUDGED that:
1.
Petitioner’s Motion for Certificate of Appealability (Doc. 30) is GRANTED
IN PART.
4
The Court understands Petitioner’s argument is that his other convictions, except one, do
not qualify as serious drug offenses. But his remaining convictions were ACCA predicate offenses
at the time he was sentenced based on binding case law from the Eleventh Circuit. And unless the
Eleventh Circuit disapproves of this Court’s conclusion as to Petitioner’s burden, he would have
no basis to challenge whether his convictions are serious drug offenses 10 years after his sentence
became final.
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2.
Petitioner is entitled to a Certificate of Appealability as to whether Petitioner
has the burden to show his armed career criminal sentence may have relied
on the invalidated ACCA residual clause or whether Petitioner must show
his sentence actually relied on the ACCA residual clause.
DONE and ORDERED in Tampa, Florida, this 30th day of June, 2017.
Copies furnished to:
Counsel/Parties of Record
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