Robinson v. United States of America

Filing 19

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment for the Government and then to close this case. Signed by Judge Susan C Bucklew on 5/10/2017. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JERRY JEROME ROBINSON
Petitioner,
v.

CASE NO. 8:16-cv-1621-T-24TGW
8:06-cr-221-T-24TGW

UNITED STATES OF AMERICA
/
ORDER
This case is before the Court on Petitioner Jerry Jerome Robinson’s Motion to
Vacate pursuant to 28 U.S.C. § 2255 (Civ. Doc. 1), Memorandum of Law in Support
(Civ. Doc. 14), the Government’s response (Civ. Doc. 16), to which Petitioner filed a
reply (Civ. Doc. 18). After due consideration, the Court finds that an evidentiary hearing
is not necessary, and Petitioner’s motion should be denied.
I. Background
Petitioner pled guilty to felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (count one). On November 29, 2006, the Court sentenced
Petitioner as an armed career criminal to a term of imprisonment of 180 months.1

1

The Pre-sentence Investigation Report (“PSR”) recommended that Petitioner be
treated as an armed career criminal under the Armed Career Criminal Act. Petitioner had
prior state of Florida convictions for delivery of a controlled substance to a person under
eighteen, manslaughter, robbery, aggravated battery, and lewd and lascivious act on a
child under sixteen.

Petitioner did not appeal. However, Petitioner filed a 28 U. S. C. § 2255 motion that was
denied by this Court on June 7, 2011. The Eleventh Circuit granted Petitioner’s
application for leave to file a second or successive § 2255 motion, finding that he had
made a prima facie showing that the new rule of constitutional law announced in Johnson
applied to him.
II. Discussion
Petitioner argues that his sentence as an armed career criminal was imposed in
violation of the Constitution and laws of the United States and should be vacated. His
claim is based on Johnson, 135 S. Ct. 2551 (2015), in which the Supreme Court held that
the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague, a decision that was made retroactive on
collateral review by the Supreme Court in Welch v. United States, 136 S. Ct. 1257 (2016).
Petitioner submits that the Florida offenses of lewd and lascivious act on a child under
sixteen, aggravated battery with a deadly weapon, robbery and manslaughter, which along
with delivery of a controlled substance, may have served as predicate offenses for his
classification as an armed career offender no longer qualify as “violent felonies” and his
armed career criminal sentence must be vacated.
In response, the Government makes several arguments as to why the motion
should be denied. First, the Government argues that Petitioner has not shown and cannot
show that he was sentenced using the ACCA’s residual clause or that the use of that
clause made a difference in his sentence. Next, the Government argues Petitioner’s claim
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is procedurally defaulted, and finally, that his claim is meritless. Because this Court
agrees that Petitioner’s claim is meritless, it will not address the Government’s other
arguments.
Armed Career Criminal Act
At sentencing, the Court found Petitioner was an armed career offender. Although
neither the Court nor the PSR stated at sentencing which of his prior convictions provided
the three predicate convictions for his ACCA sentence, Petitioner has at least three prior
Florida state convictions for a violent felony or serious drug offense that satisfy the
ACCA after Johnson: (1) Delivery of a Controlled Substance to a Person under Eighteen
in violation of Florida Statute § 893.13(1)(c)(2) committed on March 19, 1987; (2)
Robbery in violation of Florida Statute § 812.13 committed on August 19, 1987; and (3)
Aggravated Battery with a Deadly Weapon in violation of Florida Statute § 784.05
committed on March 25, 1991.
1. Delivery of a Controlled Substance to a Person Under Eighteen
The Eleventh Circuit in United States v. Smith, 775 F. 3d 1262, 1268 (11th Cir.
2014), held that a conviction under Florida Statute § 893.13 is a serious drug offense
under 18 U. S. C. § 924(e)(2)(A). In addition, Petitioner does not dispute that his drug
conviction for delivery of a controlled substance to a person under eighteen qualifies as a
serious drug offense under the ACCA.

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2. Robbery
Petitioner, while recognizing that binding precedent in the Eleventh Circuit holds
that a Florida state conviction for robbery categorically qualifies as a “violent felony,” see
United States v. Fritts, 841 F. 3d 937, 944 (11th Cir. 2016), maintains that Fritts was
wrongly decided and that after Johnson, his prior conviction for robbery no longer
qualifies as a violent felony under the ACCA. A robbery conviction under Florida Statute
§ 812.13 is a crime of violence under the ACCA’s elements clause. See id.; United States
v. Lockley, 632 F. 3d 1238, 1245 (11th Cir. 2011); United States v. Seabrooks, 839 F. 3d
1326, 1338–1345 (11th Cir. 2016).
3. Aggravated Battery
Petitioner argues that his conviction for aggravated battery with a deadly weapon
under Florida Statute § 784.045 does not qualify as a violent felony. The Court disagrees.
Petitioner was convicted under § 784.045(1)(a)(2) for battery with a deadly weapon. In
two published decisions, the Eleventh Circuit has directly held that a conviction for
aggravated battery under § 784.045(1)(a)(2) qualifies as a violent felony under the
elements clause of the ACCA. In re Rogers, 825 F. 3d 1335, 1341 (11th Cir. 2016);
Turner v. Warden Coleman FCI (Medium), 709 F. 3d 1328, 1341 (11th Cir. 2013),
abrogated on other grounds by Johnson, 135 S. Ct. 2551. Petitioner’s conviction for
aggravated battery with a deadly weapon still qualifies as a violent felony without the
ACCA’s residual clause, which was determined to be unconstitutional in Johnson.

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III. Conclusion
The Court recognizes that the Government has made two additional arguments as
to why Petitioner’s motion should be denied or dismissed. The Court will not address the
Government’s arguments that Petitioner has not met his burden of proving he was
sentenced using the residual clause or that the residual clause affected his sentence or the
Government’s argument that Petitioner’s claim is procedurally defaulted. As stated above,
however, Petitioner is not entitled to relief based on the merits of his claims.
Petitioner has at least three prior felony convictions that satisfy the ACCA after
Johnson. Therefore, for the reasons stated above, Petitioner’s claim that his sentence
should be vacated because it was imposed in violation of the Constitution and the laws of
the United States is denied.
ACCORDINGLY, for the reasons expressed, it is ORDERED AND
ADJUDGED that:
(1)

Petitioner’s Motion to Vacate (CV-Doc. 1; CR-Doc. 34) is DENIED.

(2)

The Clerk is directed to enter judgment for the United States in the civil
case and then to CLOSE the civil case.

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CERTIFICATE OF APPEALABILITY DENIED
Petitioner is not entitled to a certificate of appealability. He has not shown that
reasonable jurists would debate that he has made a substantial showing of the denial of a
constitutional right. 28 U.S.C.§ 2253(c)(2). Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the same reason he is not entitled to appeal in forma pauperis.
DONE AND ORDERED at Tampa, Florida, on May 10, 2017.

Copies to: Counsel of Record

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