Richardson v. United States of America
Filing
17
ORDER Adopting 13 Report and Recommendations. Certificate of Appealability: GRANTED. Closing Case. Motions Terminated: 13 REPORT AND RECOMMENDATIONS on 28 USC 2255 case re 1 Motion (Complaint) to Vacate/Set Aside/Correct Sentence (22 55) filed by Gregory Richardson Recommending Based on the foregoing, it is recommended that this motion to vacate be DENIED, The Court issues a certificate of appealability. Signed by Judge Robert N. Scola, Jr on 6/29/2017. (vmz) NOTIC E: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69. Modified on 6/30/2017 (vmz).
United States District Court
for the
Southern District of Florida
Gregory Richardson, Petitioner,
v.
United States of America,
Respondent.
)
)
)
Civil Action No. 16-61325-Civ-Scola
)
)
)
Order Adopting Magistrate Judge’s Recommendation
This case was referred to United States Magistrate Judge Patrick A.
White, consistent with Administrative Order 2003-19 of this Court, for a ruling
on all pre-trial, nondispositive matters and for a report and recommendation
on any dispositive matters. On May 22, 2017, Judge White issued a report,
recommending that the Court deny Richardson’s motion to correct, set aside,
or vacate his sentence pursuant to 28 U.S.C. § 2255 and dismiss the case.
(Report of Magistrate, ECF No. 13.) On June 5, 2017, the Petitioner filed
objections to the report (ECF No. 14) and on June 19, 2017 the Government
replied (ECF No. 16).
The basis for Richardson’s motion to vacate his sentence is that,
following the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct.
2551 (2015), his conviction for brandishing a firearm in furtherance of a crime
of violence should be vacated because his predicate bank robbery and
attempted bank robbery convictions do not qualify as “crime[s] of violence” as
defined by 18 U.S.C. § 924(c)(3). Although Judge White, quite unfortunately,
mistakenly referred to “Hobbs Act robbery” throughout his report, rather than
bank robbery, binding Eleventh Circuit precedent nonetheless dictates that
Richardson’s motion should be denied: armed bank robbery in violation of 18
U.S.C. § 2113(a) “clearly” satisfies the elements clause of § 924(c)(3)(A). In re
Hines, 824 F.3d 1334, 1337 (11th Cir. 2016); see also In re Lambrix, 776 F.3d
789, 794 (11th Cir. 2015) (holding that published panel decisions on
applications to file second or successive petitions “are binding precedent in our
circuit”); In re Jones, Case No. 16-14106-J (11th Circuit July 27, 2016) (Martin,
J., concurring in the judgment) (while noting that Hines “might be” “wrong,”
nonetheless finding that it still barred a petitioner’s application to file a second
or successive § 2255 motion); Colebrook v. United States, No. 11-80014-CR,
2016 WL 5807916, at *3 (S.D. Fla. Oct. 5, 2016) (Marra, J.) (“[T]his Court is
bound by the precedent of Hines and the conclusion that armed bank robbery
under 18 U.S.C. § 2113(a) and (d) is a ‘crime of violence,’ as defined by §
924(c)(3)(A).”).
Further, although the Eleventh Circuit has not decided the issue, this
Court chooses to follow the Sixth and Seventh Circuits’ holdings that 18 U.S.C.
§ 2113(a) “seems to contain a divisible set of elements, only some of which
constitute violent felonies” such that “the modified categorical approach is
necessary to determine whether” a conviction thereunder “qualifies as a crime
of violence.” United States v. McBride, 826 F.3d 293, 296 (6th Cir. 2016), cert.
denied, 137 S. Ct. 830 (2017); United States v. Loniello, 610 F.3d 488, 493 (7th
Cir. 2010). Upon taking a “peek” into the record documents, it is clear that
Richardson was charged in the indictment with violating § 2113(a) exclusively
by means of force, violence, and intimidation. Under the modified categorical
approach then, Richardson’s conviction for armed bank robbery qualifies as a
crime of violence under the force clause of § 924(c)(3)(A). As such, despite
Judge White’s error, in referring to Hobbs Act robbery, the Court nonetheless
adopts his recommendation that Richardson’s motion to vacate be denied.
The Court, however, rejects Judge White’s recommendation that a
certificate of appealability be denied. The Court finds that reasonable jurists
could debate whether armed bank robbery is a crime of violence. A certificate of
appealability is therefore granted in that regard.
The Court has considered Judge White’s report, the Petitioner’s
objections, the Government’s reply to those objections, the record, and the
relevant legal authorities. While Judge White’s report mistakenly analyzed
Hobbs Act robbery rather than bank robbery, the Court nonetheless finds that
Judge White’s ultimate conclusion is correct and therefore affirms and adopts
Judge White’s recommendation that Richardson’s petition be denied. The Court
rejects Judge White’s recommendation not to issue a certificate of
appealability.
In sum, the Court denies the motion to vacate (ECF No. 1). The Court
issues a certificate of appealability. Finally, the Court directs the Clerk to close
this case.
Done and ordered, at Miami, Florida, on June 29, 2017.
_______________________________
Robert N. Scola, Jr.
United States District Judge
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