Washington v. United States of America
ORDER: Rico Remon Washington's pro se 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence (Doc. # 1) is DENIED. See Order for details. The Clerk is directed to enter judgment for the United States of America and to thereafter CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 7/14/2021. (LEA)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
RICO REMON WASHINGTON,
Case No. 8:17-cr-599-VMC-TGW
UNITED STATES OF AMERICA.
This matter is before the Court pursuant to Rico Remon
Washington’s pro se 28 U.S.C. § 2255 Motion to Vacate, Set
Aside, or Correct Sentence, filed on August 17, 2020, (Civ.
Doc. # 1; Crim. Doc. # 72), and amended on December 16, 2020.
(Civ. Doc. # 13). For the reasons that follow, the Motion is
On December 13, 2017, the government charged Washington
brandishing a firearm in furtherance of a crime of violence
(Count 2), and being a felon in possession of a firearm (Count
3). (Crim. Doc. # 1).
Washington moved to dismiss Count 2 on April 2, 2018,
arguing: “Count 2 fails to state an offense because Hobbs Act
robbery is not a crime of violence as a matter of law.” (Crim.
Doc. # 17 at 1). The Court “roundly reject[ed]” this argument,
noting that the Eleventh Circuit has consistently found Hobbs
Act robbery to qualify as a crime of violence under Section
924(c). (Crim. Doc. # 27 at 3-4).
Subsequently, in June 2018, Washington pleaded guilty to
one count of committing Hobbs Act robbery in violation of 18
U.S.C. § 1951(a) and
of using, carrying, and
discharging a firearm during and in relation to a crime of
(Crim. Doc. ## 30, 38). The conviction under Section 924(c)
was predicated on Washington’s Hobbs Act robbery charge.
(Crim. Doc. # 45 at 5). Count 3 (being a felon in possession
of a firearm) was dismissed on the motion of the United States
per the plea agreement. (Crim. Doc. # 47).
On September 20, 2018, the Court sentenced Washington to
240 months’ imprisonment, followed by five years’ supervised
release. (Crim. Doc. # 47). Washington’s criminal history
substance offenses, which meant that the career-offender
guideline enhancement applied pursuant to USSG § 4B1.1(a).
(Crim. Doc. # 45 at 7, 18-19).
Washington filed a notice of appeal on October 2, 2018.
(Crim. Doc. # 53). On appeal, Washington did not challenge
the application of the career-offender guideline enhancement.
Rather, Washington argued that Hobbs Act robbery was not a
crime of violence under 18 U.S.C. § 924(c). (Crim. Doc. # 68
The Eleventh Circuit rejected this argument and affirmed
Washington’s conviction on September 12, 2019, holding that
Hobbs Act robbery qualified as a crime of violence under
Section 924(c)(3)(A) (Id. at 3).
On August 17, 2020, Washington filed the instant Motion
to Vacate, Set Aside, or Correct Sentence. (Civ. Doc. # 1;
Crim. Doc. # 72). Citing United States v. Eason, 953 F.3d
1184 (11th Cir. 2020), Washington challenges his conviction
on the grounds that Hobbs Act robbery no longer qualifies as
a crime of violence under Section 924(c). Washington also
challenges the Court’s application of the career-offender
therefore his sentence should not have been enhanced.
On September 9, 2020, Washington filed a motion to
appoint counsel regarding this Motion (Civ. Doc. # 6). Before
the Magistrate could rule on the motion, Washington filed a
second request for counsel on November 23, 2020. (Civ. Doc.
# 10). Both motions were denied by the Magistrate on December
3, 2020. (Civ. Doc. # 12).
The United States responded to Washington’s Motion on
December 2, 2020, (Civ. Doc. # 11).
Subsequently, on December 16, 2020, Washington filed a
Washington sought to add an additional ground, arguing that
his “defense counsel was ineffective for failing to object to
the calculation of petitioner being a career offender in light
of [Eason].” (Id. at 3-4). The United States did not respond
in opposition to the motion to amend. Therefore, the Court
Washington’s claim of ineffective counsel. (Civ. Doc. # 17).
Washington filed his reply on January 22, 2021. (Civ.
Doc. # 16). The government responded to the amendment’s
additional claim of ineffective counsel on June 7, 2021. (Civ.
Doc. # 22). Washington has replied (Civ. Doc. # 24), and now
all portions of Washington’s Section 2255 Motion, including
the argument Washington raised in his motion to amend, are
ripe for review.
Washington advances three main arguments in support of
his claim for post-conviction relief. (Civ. Doc. # 1). First,
Washington claims he is entitled to relief because following
Eason, Hobbs Act robbery no longer qualifies as a crime of
violence under Section 924(c). (Id. at 2, 4-7). Second, he
challenges the “career offender” enhancement to his sentence,
claiming that post-Eason, Hobbs Act robbery is no longer a
crime of violence under Section 4B1.1. (Id. at 8). Third, in
his reply and motion to amend, Washington argues that his
defense counsel was ineffective for failing to object to the
enhancement. (Civ. Doc. # 13 at 3; Civ. Doc. # 16).
entitled to relief under Section 2255. See Rivers v. United
States, 777 F.3d 1306, 1316 (11th Cir. 2015) (“[W]e note that
Rivers bears the burden to prove the claims in his [Section]
2255 motion.”). The Court will address each of Washington’s
arguments in turn.
Section 924(c) Challenge
argument that after Eason, Hobbs Act robbery is no longer a
crime of violence under Section 924(c). (Civ. Doc. # 1 at 46; Civ. Doc. # 2 at 6, 13, 16).
In ground one, Washington states that he is “actually
innocen[t] of Hobbs Act robbery, based on the decision in
[Eason], because Hobbs Act robbery no longer qualifies as a
crime of violence, thereby  rendering counts 1 and 2 nonexisting offenses.” (Civ. Doc. # 1 at 4). Similarly, in ground
two, Washington argues he is “actually innocen[t] of ‘using,
carrying . . . a firearm during and in relation to a crime of
violence . . . ,’ because Hobbs Act robbery . . . no longer
qualifies as a ‘crime of violence.’” (Id. at 5). In ground
jurisdiction to convict and impose a sentence for a violation
of 924(c)(1)(A) because Hobbs Act robbery does not constitute
a crime of violence for the purpose of . . . Section 924(c).”
(Id. at 7).
The United States responds that all three challenges
should be denied because regardless of the Eleventh Circuit’s
ruling in Eason, “an attempt to commit Hobbs Act robbery
924(c). (Civ. Doc. # 11 at 6).
The Court agrees that Eason does not impact Washington’s
Hobbs Act robbery conviction. Washington was convicted of one
count of using, carrying, and discharging a firearm during
and in relation to a crime of violence under Section 924(c).
(Crim. Doc. ## 30, 38). Section 924(c) defines a “crime of
violence” as a felony that (1) “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another” (the “elements clause”) or
(2) “by its nature, involves a substantial risk that physical
force against the person or property of another may be used
in the course of committing the offense” (the “residual
clause”). 18 U.S.C. § 924(c)(3).
Although the Supreme Court deemed the residual clause’s
definition of a “violent” felony unconstitutionally vague in
United States v. Davis, 139 S. Ct. 2319, 2336 (2019), the
Eleventh Circuit has repeatedly held since Davis that Hobbs
Act robbery still qualifies as a crime of violence under the
elements clause of Section 924(c). See, e.g., United States
v. McCain, 782 F. App’x 860, 862 (11th Cir. 2019) (per curiam)
(“Our binding precedent holds that Hobbs Act robbery – the
statute underlying both of McCain’s predicate convictions –
924(c)(3)(A)’s elements clause.”); Vega v. United States, 794
F. App’x 918, 920 (11th Cir. 2019) (per curiam) (“We are bound
by our prior holding in Saint Fleur that Hobbs Act robbery is
clause.”); United States v. McCant, 805 F. App’x 859, 863-64
(11th Cir. 2020) (per curiam) (same).
Indeed, in its order denying Washington’s motion to
dismiss (which also argued that Hobbs Act robbery was not a
crime of violence under Section 924(c)), the Court examined
the “long line of Eleventh Circuit cases” holding that Hobbs
Act robbery qualifies as a crime of violence under Section
924(c)’s elements clause. (Crim. Doc. # 27 at 3).
The Court agrees with the government that Eason did not
displace or overrule this precedent. Instead, Eason addressed
an entirely separate question: whether Hobbs Act robbery
qualified as a crime of violence under the career-offender
guidelines, USSG § 4B1.1(a). 953 F.3d at 1195. The Eleventh
Circuit held that it did not, as the guideline’s definition
of crime of violence did not encompass Hobbs Act robbery. Id.
While this means that “[a] conviction for Hobbs Act
robbery  cannot serve as a predicate for a career offender
sentencing enhancement,” Id., it does not disturb binding
qualifying crime of violence under Section 924(c). See United
States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008)
(noting that the Eleventh Circuit is “bound to follow a prior
binding precedent ‘unless or until it is overruled by this
court en banc or by the Supreme Court’” (internal citation
United States v. St. Hubert, 909 F.3d 335 (11th Cir.
2018), and In re Fleur, 824 F.3d 1337 (11th Cir. 2016),
therefore remain binding on this Court, and Washington’s
Hobbs Act robbery conviction remains a crime of violence under
Section 924(c)’s elements clause.
Accordingly, the Court agrees with the government that
Washington is entitled to no relief from his Section 924(c)
conviction. His Motion is denied as to grounds one through
Section 4B1.1(a) Challenge
Washington next argues that in light of Eason, his Hobbs
Act robbery conviction no longer constitutes a crime of
violence under Section 4B1.1(a). Therefore, per Washington,
he is no longer a “career offender” and the Court erred by
enhancing his sentence. (Civ. Doc. # 1 at 8; Civ. Doc. # 2 at
The government responds that by “failing to challenge it
on direct appeal, Washington procedurally defaulted on his
challenge regarding the application of the career-offender
guideline, USSG § 4B1.1(a).” (Civ. Doc. # 11 at 6).
barred. “A motion under [Section] 2255 is not a substitute
for direct appeal, and issues which could have been raised on
direct appeal are generally not actionable in a [Section]
2255 motion and will be considered procedurally barred.”
Krecht v. United States, 846 F. Supp. 2d 1268, 1278 (S.D.
Fla. 2012) (citing Massaro v. United States, 538 U.S. 500
(2003)). “Where a defendant has procedurally defaulted a
claim by failing to raise it on direct review, the claim may
demonstrate either ‘cause’ and actual ‘prejudice,’ or that he
is ‘actually innocent.’” Bousley v. United States, 523 U.S.
614, 622 (1998) (citations omitted).
appeal (Civ. Doc. # 13 at 15-16). Therefore, one of the two
Bousley exceptions — actual innocence or cause and prejudice
— must apply for the argument to survive procedural default.
523 U.S. at 622. The Court finds that neither applies.
review the merits of a claim if the petitioner can show actual
innocence. Sawyer v. Whitley, 505 U.S. 333, 339 (1992).
Washington claims in his Motion that after the Eleventh
Circuit decision in Eason, he is “actually innocen[t] of Hobbs
Act robbery” and “actually innocen[t] of being a career
offender.” (Civ. Doc. # 1 at 4, 8).
However, “‘actual innocence’ means factual innocence
(i.e. that the petitioner did not commit the crime of which
he was convicted), not mere legal insufficiency.” Bousley,
523 U.S. at 623. Washington fails to present any evidence
that he is factually innocent of his crimes. Instead, he only
conviction is no longer a crime of violence, and (2) he was
erroneously sentenced as a career offender because his prior
conviction no longer qualifies as a crime of violence. (Id.).
innocence and thus fail to fall within the actual innocence
exception’s purview.” McKay v. United States, 657 F.3d 1190,
1198 (11th Cir. 2011). Accordingly, Washington has failed to
adduce any evidence of actual innocence that could overcome
his procedural default.
Cause and Actual Prejudice
Nor has Washington shown cause justifying his procedural
default. In his pleadings, Washington attributes his default
“fail[ure] to raise the [career offender guideline] issue on
direct appeal.” (Civ. Doc. # 13 at 2-3; Civ. Doc. # 16 at
“[A] claim of ineffective assistance of counsel may
constitute cause for a procedural default.” Krecht, 846 F.
Supp. 2d at 1279 (citing Murray v. Carrier, 477 U.S. 478
(1986)). However, “[n]ot just any deficiency in counsel’s
performance will do.” Edwards v. Carpenter, 529 U.S. 446, 451
assistance “must have been so ineffective as to violate the
Federal Constitution.” Id.
Accordingly, “[t]o establish cause for [his] default
based upon ineffective assistance of counsel, [Washington]
must show that his attorneys’ performance fell below an
objective standard of reasonableness and that [he] suffered
prejudice as a result.” United States v. Mikalajunas, 186
F.3d 490, 493 (4th Cir. 1999) (citing Carrier, 477 U.S. at
488; Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Washington fails to satisfy the first prong and overcome
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 688. Washington contends that his
counsel was constitutionally deficient because counsel “did
not put forth a better tactical defensive effort.” (Civ. Doc.
# 24 at 5-6). Specifically, Washington explains that as his
qualifie[d] as a ‘crime of violence’ under [Section 4B1.1].”
(Civ. Doc. # 16 at 17). But rather than raise that issue,
Washington’s counsel “argued that Hobbs Act robbery is not a
‘crime of violence’ under [Section] 924(c).” (Id.).
pursued the Section 924(c) argument – “[a]n issue that was
already decided prior to Davis” – rather than “rais[ing] the
[Section 4B1.1] issue that was pending in the Eason court.”
(Id. at 17-18). According to Washington, “had [counsel] been
process,” he would have “preserve[d] the correct legal issues
and weigh[ed] every possible strategic way to combat during
his argument.” (Civ. Doc. # 24 at 5-6).
The Eleventh Circuit has consistently “held that counsel
cannot be deemed ineffective for failing to anticipate a
change in the law.”
Bajorski v. United States, 276 F. App’x
952, 954 (11th Cir. 2008) (citing Funchess v. Wainwright, 772
F.2d 683, 691 (11th Cir. 1985)). “Even if a claim based upon
an anticipated change in the law is reasonably available at
the time counsel failed to raise it,” the Eleventh Circuit
has found that “such failure does not constitute ineffective
assistance.” Id. (citing Pitts v. Cook, 923 F.2d 1568, 157374 (11th Cir. 1991)). Other circuits have come to similar
See Lilly v. Gilmore, 988 F.2d 783, 786 (7th
Cir. 1993) (holding that “the Sixth Amendment does not require
counsel to forecast changes or advances in the law”); United
States v. Smith, 241 F.3d 546, 548 (7th Cir. 2001) (“Nor does
[petitioner] contend that counsel was ineffective for failure
to anticipate Apprendi; no such argument would be tenable.”).
This is because the Sixth Amendment does not require
appellate advocates to raise every nonfrivolous issue. Jones
v. Barnes, 463 U.S. 745, 751. (1983); see also Dickerson v.
United States, No. CR605-016, 2009 WL 2016113, at *2 (S.D.
Ga. July 8, 2009) (holding that “[a]pellate counsel has no
duty to assert every potentially colorable claim of error,
even if his client urges him to do so”). On the contrary, the
“process of ‘winnowing out weaker arguments on appeal and
focusing on’ those more likely to prevail, far from being
appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986)
(citing Jones, 463 U.S. at 751-752).
Accordingly, the Court owes “substantial deference to
meritorious argument, if the decision might be considered
sound trial strategy.” McPhearson v. United States, 675 F.3d
553, 559 (6th Cir. 2012) (quoting Hodge v. Hurley, 426 F.3d
indicates that he chose to “focus on preserving an argument”
regarding Section 924(c) because “Section 924(c) does not
Guidelines’ definition of ‘crime of violence’ does contain an
enumerated list, and enumerates ‘robbery’ as one of the
predicate offenses.” (Civ. Doc. # 22-1 at 2).
Such a strategy, based on the specific language of the
counsel. Instead, the Court agrees with the government that
it “[falls] well within the ‘wide range of professionally
competent assistance’ required under the Sixth Amendment to
the Federal Constitution.” Murray, 477 U.S. at 536
it seriously be maintained that the decision not to press the
claim on appeal was an error of such magnitude that it
under the test of Strickland.” (quoting Strickland, 466 U.S.
at 690)); see also Jones, 463 U.S. at 751–54 (recognizing
that appellate counsel needs latitude in selecting issues to
raise on appeal).
Nor can the Court agree with Washington that his counsel
was constitutionally “unknowledgeable,” (Civ. Doc. # 24 at 56),
“familiar” with the relevant issues “then and  now.” (Civ.
Doc. # 22-1 at 2). As the government convincingly argues,
Eason was decided several months after Washington’s judgment
require Washington’s counsel to “make arguments or objections
based on predictions as to how the law may develop.” Denson
v. United States, 804 F.3d 1339, 1343 (11th Cir. 2015); see
also Marquard v. Sec’y for Dep’t of Corr., 429 F.3d 1278,
1313 (11th Cir. 2005) (explaining that counsel’s performance
was not ineffective for failing to contemplate a future
Supreme Court decision). Therefore, Washington’s “counsel
cannot be deemed ineffective for failing to anticipate a
change in the law” that would not occur for several months.
Viers v. Warden, 605 F. App’x 933, 942 (11th Cir. 2015)
(citing Spaziano v. Singletary, 36 F.3d 1028, 1039 (11th Cir.
At worst, counsel’s choice to forego a certain argument
on appeal amounted to a “miscalculation of the likelihood of
success of such a challenge.” Mikalajunas, 186 F.3d at 493.
But “such failure to pursue a basis for appeal by reason of
a mere miscalculation of the likelihood of success does not
Id.; see also Smith, 477 U.S. at 535 (recognizing “that ‘the
mere fact that counsel failed to recognize the factual or
legal basis for a claim, or failed to raise the claim despite
recognizing it, does not constitute cause for a procedural
default’” (internal citation omitted)).
In sum, “[Washington’s] counsel’s performance was not
deficient because he was not required to act in anticipation
of [Eason].” Bajorski, 276 F. App’x at 954. The decision on
appeal to challenge the definition of a “crime of violence”
under Section 924(c), rather than under Section 4B1.1, was
not so unsound that no reasonable attorney would have made
the same choice. See Hair v. United States, 8:09–cv–2253–EAK–
EAJ, 2010 WL 2772311, at *3 (M.D. Fla. July 13, 2010) (noting
that “as long as another reasonable attorney might conduct
him or herself at trial in the same way [the defendant’s]
defense counsel conducted him or herself, counsel was not
ineffective”). On the contrary, counsel’s “co-counsel and
then-supervisor” came to the same legal conclusion. (Civ.
Doc. # 22-1 at 1). Therefore, Washington fails to satisfy the
first prong of unconstitutionally deficient counsel.
In turn, Washington fails to demonstrate ineffective
assistance of counsel as cause for his procedural default on
guideline. For this reason, the Motion’s fourth ground must
Lastly, in his motion to amend the instant Motion,
Washington argues that “defense counsel was ineffective for
failing to object to the calculation of [Washington] being a
career offender in light of [Eason].” (Civ. Doc. # 13). The
Court has already considered this claim in the previous
section as part of the procedural default issue. As stated
previously, the Court finds that Washington has failed to
show that his counsel’s conduct was so unreasonable as to be
considered constitutionally deficient. Strickland. 466 U.S.
668. Thus, Washington’s Motion is denied as to this ground.
III. Evidentiary Hearing
The Eleventh Circuit Court of Appeals has explained that
“[a] habeas corpus petitioner is entitled to an evidentiary
hearing on his claim ‘if he alleges facts which, if proven,
would entitle him to relief.’” Smith v. Singletary, 170 F.3d
1051, 1053 (11th Cir. 1999) (internal citation omitted).
allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.” Schriro
v. Landrigan, 550 U.S. 465, 474 (2007).
Here, Washington has failed to establish the need for an
evidentiary hearing. See Birt v. Montgomery, 725 F.2d 587,
591 (11th Cir. 1984) (noting that the “burden is on the
petitioner in a habeas corpus proceeding to establish the
need for an evidentiary hearing”). It is plain from the face
proceedings in this case that Washington is not entitled to
relief. Broadwater v. United States, 292 F.3d 1302, 1303 (11th
Certificate of Appealability and Leave to Appeal In
Forma Pauperis Denied
substantial showing of the denial of a constitutional right
as required by 28 U.S.C. § 2253(c)(2). Nor will the Court
authorize Washington to proceed on appeal in forma pauperis
because such an appeal would not be taken in good faith. See
28 U.S.C. § 1915(a)(3). Washington shall be required to pay
the full amount of the appellate filing fee pursuant to
Section 1915(b)(1) and (2).
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Rico Remon Washington’s pro se 28 U.S.C. § 2255 Motion
to Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1;
Crim. Doc. # 72) is DENIED. The Clerk is directed to enter
judgment for the United States of America and to CLOSE this
DONE and ORDERED in Chambers in Tampa, Florida, this
14th day of July, 2021.
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