Burgess v. United States Of America

Filing 6

ORDER VACATING AND REPLACING 5 Order on Motion for Leave to File, 4 Order, 3 REPORT AND RECOMMENDATIONS re 2 MOTION for Leave to File filed by Roosevelt J.L. Burgess. The Court will hear from the Government within 30 days. Signed by Magistrate Judge G. R. Smith on 9/6/16. (jlm) Modified on 9/6/2016 (jlm).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ROOSEVELT J. LOUICE BURGESS,
Movant,
v.

Case No. CV416-147
CR493-205

UNITED STATES OF AMERICA,
Respondent.

ORDER 1
This Court has previously denied multiple 28 U.S.C. § 2255
motions filed by defendant Roosevelt J. Louice Burgess. CR493-205, doc.
112 at 3 (S.D. Ga. Mar. 31, 2011) (collecting cases), reported at 2011 WL
1398482, adopted, doc. 115, reported at 2011 WL 1398479 (S.D. Ga. Apr.
12, 2011). In this latest, doc. 122, accompanied by a copy of his motion to
the Eleventh Circuit for leave to file a successive § 2255 motion, doc. 123
(but docketed as a motion in this Court), he seeks to exploit the new rule
announced in Johnson v. United States , ___ U.S. ___, 135 S. Ct. 2551
(2015), made retroactive by Welch v. United States , ___ U.S. ___, 136 S.
Ct. 1257 (2016), and otherwise triggering a lot of successive filings. See,
1

The Court VACATES its August 30, 2016 Report and Recommendation and
service Orders (CV416-147, docs. 3, 4 & 5) and files this Order in their place.

e.g. , In re Fleur, 824 F.3d 1337 (11th Cir. 2016); In re Hines , 824 F.3d
1334 (11th Cir. 2016), and In re Ricardo Pinder, Jr., 824 F.3d 977 (11th
Cir. 2016).
The Armed Career Criminal Act (ACCA) -- the statute Johnson
addressed -- provides enhanced penalties for defendants who are (1)
convicted of being felons in possession of firearms in violation of 18
U.S.C. § 922(g) and (2) have “three prior convictions . . . for a violent
felony or a serious drug offense, or both.” It defines “violent felony” as,
among other things, a felony that “otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
924(e)(2)(B).

Id. at §

Johnson found that “residual” clause so vague that it

violates due process. See 135 S. Ct. at 2557. But crimes falling under
ACCA’s other clauses, known as the “elements” and “enumerated
crimes” clauses, 2 are not affected by Johnson’s holding. Id. at 2563.
2

As more thoroughly explained by the Eleventh Circuit:
ACCA gives three definitions of “violent felony.” First, § 924(e)(2)(B)(i) covers
any offense that “has as an element the use, attempted use, or threatened use
of physical force against the person of another.” This is known as the
“elements clause.” Second, § 924(e)(2)(B)(ii) covers any offense that “is
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.”
The first 9 words of that subsection are called the “enumerated crimes
clause,” and the last 13 are called the “residual clause.

Granting Burgess’ successiveness motion, the Eleventh Circuit
acknowledged that he had been ACCA-sentenced by this Court.

In re

Burgess , No. 16-13208-J at 6 (11th Cir. July 1, 2016) (unpublished) (copy
attached). It then applied the “clear-unclear test” that it had previously
formulated for analyzing successive § 2255 motion applications bearing

Johnson claims. Under that test, it could
only deny [an] application if it is clear that the motion will not
contain a Johnson claim. This is so when:
(1) the sentencing court record demonstrates that the sentencing
court specifically identified three prior convictions as qualifying as
ACCA predicates under the elements or enumerated crimes clauses,
or based on the “serious drug offense” provision of the ACCA;
and/or
(2) under binding precedent, it is clear that the prior convictions
the sentencing court identified categorically qualify as ACCA
predicates under the elements or enumerated crimes clauses or,
alternatively, the ACCA's “serious drug offense” provision.

In re Leonard, 2016 WL 3885037 at * 3 (11th Cir. July 13, 2016).
The sentencing judge in Burgess’ case, the Eleventh Circuit pointed
out, did not specifically identify his prior convictions under the elements
or enumerated crimes clauses. Nor is there any binding precedent
showing that his “ACCA-priors” categorically qualify as ACCA predicates

In re Robinson , 822 F.3d 1196, 1197 (11th Cir. 2016).

following Johnson . Burgess , Slip. Op. at 6. Nor, finally, is there any
binding precedent showing that either state statute supporting his
ACCA-priors “is divisible under Descamps ,” 3 so he is entitled to have this
latest § 2255 motion considered by this Court because “neither the
record nor current binding precedent makes undeniably clear that,
absent the residual clause, an enhanced sentence validly was entered.”

Id . (quotes omitted); see also In re Davis , ___ F.3d ___, 2016 WL 4070987
at * 1 (11th Cir. July 21, 2016).
The Court will hear from the Government within 30 days of the
date this Order is served. It should brief the “threshold determination”
standard, based on the nonwaivable jurisdictional component of §

3

Descamps v. United States , ___ U.S. ___, 133 S. Ct. 2276 (2013), held that a
conviction under what’s known as a “nongeneric, indivisible criminal statute”
categorically cannot qualify as an ACCA predicate offense. Id . at 2285-86. It also
held that a sentencing court may not consider extra-statutory materials of the sort
approved by the Supreme Court under the “modified categorical approach” developed
in Taylor v. United States , 495 U.S. 575 (1990), and Shepard v. United States , 544
U.S. 13 (2005), when determining whether a conviction under an “indivisible”
criminal statute qualifies as an ACCA predicate offense under § 924(e)(2)(B)(ii)”s
enumerated-crimes clause. Descamps , 133 S.Ct. at 2285-86.
In another, somewhat similar successiveness application case, In re Rogers , 825
F.3d 1335, 2016 WL 3362057 (11th Cir. June 17, 2016), the Eleventh Circuit noted
that it “would not need to apply Descamps if the sentencing court relied upon three
qualifying serious drug offenses to impose the ACCA enhancement.” Id. at * 1, n. 4.

2255(h)(2),4 as illuminated in Ziglar v. United States , ___ F.Supp. 3d ___,
2016 WL 4257773 at * 5 (M.D. Ala. Aug. 11, 2016), along with the
Descamps retroactivity discussion there. See id. at * 4 (“[T]he Eleventh
Circuit ruled in three published decisions on inmates' applications for
authorization to file successive § 2255 motions, that, “while Descamps is
retroactive for a first § 2255 motion . . . Descamps is not retroactive for
purposes of a second or successive § 2255 motion.” In re Hires, [825 F.3d
1297 (11th Cir. 2016)] (citing In re Griffin , 823 F.3d 1350, 1356 (11th
Cir. 2016), and In re Thomas , 823 F.3d 1345, 1349 (11th Cir. 2016).”). 5

4

See 28 U.S.C. § 2255 (h)(2) (“A second or successive motion must be certified . . . to
contain . . . (2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.”).
5

The Ziglar court disregarded the Government’s § 2255(h)(2) concession, denied §
2255 relief on jurisdictional grounds, and illuminated that it is the § 2255 movant’s
burden to demonstrate that he is entitled to § 2255 relief:
the court finds that Ziglar has failed to demonstrate that at the time of
sentencing his Alabama convictions for third-degree burglary qualified as
violent felonies only under the ACCA's residual clause and not under the
enumerated-crimes clause and that, therefore, Ziglar's convictions do not fall
within the scope of Johnson. Furthermore, Ziglar cannot use Johnson to
litigate a Descamps issue because Descamps is not a new rule of constitutional
law within the meaning of § 2255(h)(2), and the government cannot waive the
non-retroactivity of Descamps because § 2255(h)(2) is jurisdictional. Because
Ziglar has not demonstrated that his ACCA-enhanced sentence falls within the
scope of Johnson, Ziglar has not satisfied § 2255(h)(2)'s criteria, and his § 2255
motion is due to be denied.

Ziglar, 2016 WL 4257773 at *1 ; see also id. at * 5 (reminding that, even after the
Eleventh Circuit greenlights a successive § 2255 motion, the district court must

Burgess, meanwhile, is free to file as many briefs as he wants when
he wants, subject to this Court’s ruling at any time beginning 21 days
after the date the Government files its brief in response to this Order.
Given the tedious complexity 6 arising in what is still the jurisdictional
phase of this case, see § 2255(h)(2); Ziglar, 2016 WL 4257773 at * 13 n.
15, the Court is inclined to grant Burgess’ motion to appoint counsel, but
will first await the Government’s response to this Order. For the
moment, that motion is administratively DENIED (doc. 124), but
Burgess is free to renew it after the Government responds. Meanwhile,
the Court DENIES his motion for leave to file a successive motion, doc.
123, as it was erroneously docketed as a motion here when in fact it is
merely a copy of what he filed at the Eleventh Circuit.

SO ORDERED, this 6th day of September, 2016.

-

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGIA

“determine for itself whether the requirements of § 2255(h)(2) are met.”) (quotes and
cite omitted).
6

Analyzing this area has become, one court recently remarked, a “Byzantine
analytical framework that . . . leaves courts struggling to make sense out of the
‘hopeless tangle’ the ACCA has become.” United States v. Mayer , ___ F. Supp. 3d
____, 2016 WL 520967 at * 12 (D. Or. Feb, 5, 2016), quoted in Gatson v. United
States , 2016 WL 2977278 at * 2 n. 4 (S.D. Ga. May 19, 2016).