Lawson v. United States of America

Filing 3

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255) and directing the Clerk to enter judgment for Defendant and to CLOSE the case. Signed by Judge Richard A. Lazzara on 5/15/2018. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

HOWARD DEWAYNE LAWSON,
Plaintiff,
v.

CASE NO. 8:18-cv-1174-T-26AAS

UNITED STATES OF AMERICA,
Defendant.
/

ORDER
Plaintiff, proceeding pro se, has filed a timely motion to vacate his sentence
pursuant to 28 U.S.C. § 2255. After carefully considering the motion and accompanying
memorandum of law, together with the proceedings in Plaintiff’s underlying criminal
case, case number 8:16-cr-163-T-26AAS, the Court concludes that the motion is due to
be denied without the necessity of a response from Defendant or an evidentiary hearing
because it plainly appears from the face of the motion and memorandum and the
proceedings in the related criminal case that Plaintiff is entitled to no relief.
Plaintiff was sentenced as an armed career criminal to a term of 180 months
followed by a term of supervised release of 48 months.1 He did not appeal. Plaintiff’s
sentence pursuant to the Armed Career Criminal Act (the ACCA) was enhanced based on

1

See case number 8:16-cr-163-T-26AAS, docket 42.

two prior State of Florida convictions for obstructing or opposing an officer with violence
and aggravated battery with a deadly weapon.2 He now raises two claims for relief: (1) he
is actually innocent of being an armed career criminal since these two prior convictions
do not constitute crimes of violence; and (2) his attorney rendered ineffective assistance
of counsel in failing to challenge his enhanced sentence because these two prior
convictions did not qualify as crimes of violence.
Both claims fail in the face of binding Eleventh Circuit precedent. In United
States v. Deshazior, 882 F.3d 1352, 1355 (11th Cir. 2018), the Court reaffirmed that a
Florida conviction for resisting an officer with violence qualifies as a violent felony under
the elements clause of the ACCA. Likewise, in Turner v. Warden Coleman FCI
(Medium), 709 F.3d 1328, 1341 (11th Cir. 2013), abrogated on other grounds by Johnson
v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Court
determined that a Florida conviction for aggravated battery with a deadly weapon
qualified as a violent felony under the elements clause of the ACCA.3 In light of this
settled and binding Eleventh Circuit precedent, Plaintiff’s counsel cannot be faulted for
failing to argue that these two prior convictions did not support an enhancement of
Plaintiff’s sentence under the ACCA.

2

See id., docket 38 (Presentence Report), paragraph 30, page 6.

3

Recently, in United States v. Boatwright, 713 F.App’x 871, 877 (11th Cir. 2017)
(unpublished), a panel of the Eleventh Circuit noted that Turner is still binding precedent with
regard to aggravated battery constituting a crime of violence.
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ACCORDINGLY, it is ORDERED AND ADJUDGED that Plaintiff’s Motion
to Vacate (Dkt. 1) is denied. The Clerk is directed to enter judgment for Defendant and to
close this case.
DONE AND ORDERED at Tampa, Florida, on May 15, 2018.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record
Defendant, pro se

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