Porter v. United States of America

Filing 23

ORDER granting 1 Motion to vacate/set aside/correct sentence (2255). Signed by Judge Susan C Bucklew on 2/23/17. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LARRY LOUIS PORTER
U.S. Marshal No: 54974-018

Petitioner,
v.

CASE NO. 8:16-cv-1625-T-24TBM
8:11-cr-281-T-24TBM

UNITED STATES OF AMERICA,
/

ORDER
Petitioner Larry Louis Porter, represented by counsel, filed a Motion to Vacate
pursuant to 28 U.S.C. § 2255 on June 17, 2016. Petitioner then filed a motion to stay
pending Fritts, which this Court granted on August 4, 2016. On September 28, 2016,
Petitioner acting pro-se filed a motion to lift the stay and proceed pro-se, which the Court
granted. On December 5, 2016, the United States filed a response to the § 2255 motion, to
which Petitioner filed a reply on December 16, 2016. After due consideration, the Court
finds Petitioner’s § 2255 motion should be granted.
Petitioner pled guilty to felon in possession of a firearm in violation of 18 U.S.C. §
922(g)(1). On December 21, 2011, the Court sentenced Petitioner under the Armed
Career Criminal Act (“ACCA”) to a term of imprisonment of 180 months. Petitioner did
not file a direct appeal, but he filed a § 2255 motion that the Court denied on March 28,

2013. The Eleventh Circuit Court of Appeal granted Petitioner’s application to file a
second or successive motion to vacate on June 15, 2016.
Petitioner seeks relief from an unconstitutional sentence under the auspices of 28
U.S.C. § 2255. Petitioner argues that his sentence under the ACCA was imposed in
violation of the Constitution and should be vacated. His claim is based on Johnson v.
United States, 135 S. Ct. 2551 (2015), in which the Supreme Court held that the residual
clause of the 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).
At sentencing, the Court found Petitioner was an armed career criminal under 18
U.S.C. § 924(e). A defendant is an armed career criminal subject to an enhanced sentence
where the instant offense is a violation of 18 U.S.C. § 922(e) and the defendant has at
least three prior convictions of either a violent felony or a serious drug offense. The prior
felonies which the Court found qualified Petitioner to be sentenced under the ACCA at
sentencing were state of Florida convictions for murder in the second degree and
attempted armed robbery with a firearm 1 , robbery, and burglary of a structure.
The Court did not state at sentencing whether the predicate offenses fell under the
elements clause, enumerated crimes clause or the residual clause. In addition, Petitioner
did not object to his sentence under the ACCA.

1

Both crimes were committed on the same date—March 17, 1989, and therefore,
they are considered one predicate offense.
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Petitioner claims that he is not an armed career criminal because his sentence was
enhanced based in part on prior convictions for burglary of a structure, second degree
murder and robbery, all of which can only qualify as ACCA predicates under the residual
clause of the ACCA, which Johnson held unconstitutional. Without addressing whether
second degree murder and robbery are violent crimes for purposes of the ACCA
enhancement, this Court finds that a Florida burglary conviction cannot serve as a
predicate offense for the ACCA enhancement. United States v. Esprit, 841 F. 3d 1235,
1241 (11 th Cir. 2016). Because Petitioner has only two qualifying prior violent felonies
without the burglary conviction, he is not an armed career criminal and is entitled to be
resentenced.
The United States does not dispute that the court in Esprit found that a Florida
burglary conviction cannot serve as a predicate offense for the ACCA, but it argues that
the decision in Esprit should not play a role in this Court’s determination, because
Petitioner has not met his burden of proving that he was sentenced under the ACCA’s
residual clause. The United States points out that the PSR does not identify how or why
Petitioner’s convictions qualify under the ACCA; that neither the parties nor the Court
addressed the matter at sentencing; and the Court simply adopted without objection the
PSR’s findings regarding the ACCA.
The United States’ argument is based on dicta in In re Moore, 830 F. 3d 1268,
1271–73 (11 th Cir. 2016), in which the Eleventh Circuit stated the district court must
decide whether or not the petitioner was sentenced under the residual clause and only then
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should the district court consider the merits of the motion. “In other words, the 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.”
Id. at 1273.
Under the reasoning of the Eleventh Circuit in the case of In re Moore, this Court
would be constrained to deny Petitioner’s § 2255 motion, even in the face of binding
precedent, because at sentencing neither the Court, the PSR, or the parties discussed
whether any of the Petitioner’s ACCA predicate offenses fell under the elements clause,
the enumerated crimes clause or the residual clause. Nor did anyone—the Court, the
probation officer, or counsel—have any idea at that time that they should do so. This
seems an impossible and unfair burden to require of Petitioner and this Court prefers to
follow the dicta in the case of In re Chance, 831 F. 3d 1335 (11 th Cir. 2016), where a
different panel of the Eleventh Circuit addressing whether or not to grant the
authorization to file a second or successive § 2255 motion in a § 924(c) case stated “we
believe the required showing is simply that § 924(c) may no longer authorize his sentence
as that statute stands after Johnson—not proof of what the judge said or though at a
decades-old sentencing. No matter what the judge said, it is precedent from the Supreme
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Court and this Court that dictates which offenses meet § 924(c)’s definitions.” Id. at 1341.
This Court does not agree with the United States’ argument that Petitioner’s § 2255
motion should be denied because Petitioner has not and cannot show that at the time of
sentencing he was sentenced using the residual clause. Rather this Court prefers to follow
the binding precedent of Esprit in which the Eleventh Circuit found that a Florida
burglary conviction cannot qualify as a predicate offense for the ACCA enhancement.
ACCORDINGLY, for the reasons expressed, it is ORDERED AND
ADJUDGED that:
(1)

Petitioner’s Motion to Vacate (CV-Doc. 1; CR-Doc. 50) is GRANTED.

(2)

The Probation Office shall prepare an amended Presentence Investigation
Report and circulate it on or before April 12, 2017.

(3)

Resentencing in the criminal case is set for May 11, 2017.

(4)

Counsel will be appointed to represent Petitioner at sentencing by separate
order.

DONE AND ORDERED at Tampa, Florida, on February 23, 2017.

Copies to: Counsel of Record
Larry Louis Porter, pro-se
United States Probation Office

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