Green v. United States of America

Filing 22

ORDERED that Movant is to file a supplemental brief alleging a claim for ineffective assistance of counsel, if any, by no later than August 18, 2017. The Government is ORDERED to file its opposition, if any, by no later than September 8, 2017. The Evidentiary Hearing is CONTINUED to September 28, 2017 at 9:00 a.m. Signed by Magistrate Judge G. R. Smith on 8/3/17. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JERRY ORENTHAL GREEN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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CV416-153
CR405-139

ORDER
Given that the evidentiary hearing in this matter (regarding the
simultaneousness or successiveness of movant’s robbery by intimidation
predicate offenses) is approaching, several matters must be dealt with
immediately: (1) whether the Government can present argument, for
the first time, about Jerry Green’s South Carolina drug conviction;
(2) whether Green can raise an ineffective assistance of counsel claim at
this stage; and (3) what the Court may consider in evaluating his
robbery by intimidation convictions.
Currently before the Court is the Government’s supplemental
responsive briefing arguing, for the first time, that movant’s South
Carolina drug conviction is an Armed Career Criminal Act (ACCA)

predicate offense. Doc. 83. 1 In the Court’s Report and Recommendation
(R&R), the undersigned determined that Green’s conviction was a “first
offender” offense, and thus could not qualify as an ACCA predicate. 2
The Government did not object to that conclusion, and the R&R
was adopted in part by the District Judge. See doc. 77 at 18 (adopting
the R&R to the extent it concluded the South Carolina offense was not
an ACCA predicate but Green’s armed robbery conviction was; declining
to adopt the R&R to the extent it found Green’s robbery by intimidation
convictions counted as separate predicate offenses under the ACCA and

1

The Court is citing to the criminal docket in CR405-139, and all page numbers are
those imprinted by its CM/ECF docketing software.
2

The ACCA 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.” 18
U.S.C. § 924(e)(1). Only those state drug offenses “for which a maximum term of
imprisonment of ten years or more is prescribed by law” qualify as “serious drug
offense[s].” 18 U.S.C. § 924(e)(2)(A)(ii) (emphasis added). S.C.C.A. § 44-53-370(b)(2)
provides that a person convicted of possession with intent to distribute marijuana, a
Schedule I controlled substance, or cocaine, a Schedule II controlled substance, “is
guilty of a felony and upon conviction, for a first offense must be imprisoned not
more than five years or fined not more than five thousand dollars, or both.” Thus, a
first-time conviction for possession could not qualify as an ACCA predicate. It was
unclear from the sparse record -- the Government presented no argument or Shepard
documents in its initial briefing -- whether Green’s prior conviction for possession of
cocaine in violation of O.C.G. A. § 16-13-30(j) disqualified him from “first offender”
status. Absent that information, the Court could not rely upon his South Carolina
offense as an ACCA-qualifying drug offense. The Government contends it now has
that evidence. But, as explained below, it is too late for the undersigned to consider
it. Any motion for reconsideration of the Order Adopting in Part and Declining in
Part that the Government may wish to file must be addressed to the District Judge.
2

referring the matter back to the Magistrate Judge for a further
evidentiary hearing). The Government now argues that the R&R got it
wrong; that Green’s drug offense is indeed an ACCA predicate and it
has the evidence to back up that brand new argument. Doc. 82. Green
opposes, arguing that the Government waived any such argument by
failing to object to the factual and legal conclusions of the R&R.
Doc. 83. Green is right.
After a magistrate judge has issued a report and recommendation
under 28 U.S.C. § 636(b)(1)(B), a party that wishes to preserve its
objection must clearly advise the district court and pinpoint the specific
findings with which it disagrees. United States v. Schultz, 565 F.3d
1353, 1360 (11th Cir. 2009). The failure to file an objection “waives the
right to challenge” the magistrate judge’s findings and legal conclusions
(as adopted by the district judge). 11th Cir. R. 3-1; see also 28 U.S.C.
§ 636(b)(1)(B); S.D. Ga. L. R. 72.3. Here, the Government failed to raise
its argument in its initial briefing or in any objection to the R&R. It
cannot now present, for the first time, argument on an issue already
explicitly considered and decided by the District Judge and conceded by
the Government in its failure to object. Doc. 73 at n. 4; doc. 77 at 18.
3

The South Carolina conviction doesn’t count, and the undersigned is
barred from entertaining further argument as to whether it should.
Also before the Court is movant’s motion for a subpoena to call
trial counsel before the Court for the evidentiary hearing and for a copy
of trial counsel’s CJA voucher. Doc. 84. The district judge, in adopting
in part and declining to adopt in part the R&R, left “for the Magistrate
Judge to decide in the first instance whether [Green] should be
permitted to recast his petition as alleging ineffective assistance based
on counsel’s failure to object to the [Presentence Investigative Report]
at

sentencing,”

thus

surmounting

the

procedural

bar

to

his

simultaneous/successive offenses argument. Doc. 77 at 18.
Because such a claim could significantly impact the Court’s prior
ruling on the merits of the motion, the Court invites counsel to brief the
following: (1) whether movant can bring an ineffective assistance claim
at this stage, and if so, (2) how trial counsel was ineffective. Movant is
thus ORDERED to file a supplemental brief alleging a claim for
ineffective assistance of counsel, if any, by no later than August 18,
2017. The Government is ORDERED to file its opposition, if any, by no
later than September 8, 2017. The evidentiary hearing is CONTINUED
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to September 28, 2017 at 9:00 a.m.
Finally, the district judge has directed the undersigned to hold an
evidentiary hearing to further suss out whether movant’s “two Georgia
convictions for robbery by intimidation count as separate predicate
offenses under the ACCA.” Doc. 77 at 18. The Shepard documents
provided are a mess: there are multiple clerical errors, misstatements,
and contradictions within these documents. Meanwhile, a non-Shepard
approved document (the arrest warrant) appears fairly conclusive on
the point that the crimes occurred simultaneously. See doc. 73 at 6-13;
77 at 2-15.

The parties are further directed to brief the Court on

whether (1) the Shepard documents actually demonstrate that movant’s
robbery by intimidation convictions are successive, rather than
simultaneous, offenses and (2) the Court may consider any non-Shepard
documents in determining the temporal nature of Green’s predicate
offenses. The briefing schedule set forth above will apply.
SO ORDERED, this 3rd

day of August, 2017.

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