King v. United States

• Decision Date: 02 February 2017
• Docket Number: CASE NO. 16–22261–CIV–LENARD/WHITE
• Citation: 233 F.Supp.3d 1349
• Parties: Gregory KING, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of Florida

233 F.Supp.3d 1349

Gregory KING, Movant,

v.UNITED STATES of America, Respondent.

CASE NO. 16–22261–CIV–LENARD/WHITE

United States District Court, S.D. Florida.

Signed February 2, 2017

Movant's attorney: Arun Ravindran

United States' attorney: Matthew John Langley

OMNIBUS ORDER DENYING MOVANT'S MOTION FOR RECONSIDERATION (D.E. 22); GRANTING MOVANT'S REQUEST FOR A FINAL ORDER OF DISMISSAL (D.E. 22); ADOPTING AND SUPPLEMENTING THE COURT'S PRIOR, NON–FINAL ORDER (D.E. 18); DISMISSING PURSUANT TO 28 U.S.C. § 2255(h), OR ALTERNATIVELY, DENYING PURSUANT TO 28 U.S.C. § 2255(a) MOVANT'S MOTION TO VACATE (D.E. 5) AND AMENDED MOTION TO VA

CATE (D.E. 22);¹ DENYING A CERTIFICATE OF APPEALABILITY; AND CLOSING CASE

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

On August 24, 2016, the Court entered a non-final order dismissing Movant's Motion to Vacate without prejudice and denying as moot Judge White's Report. (D.E. 18.) Pursuant to its gatekeeping function under § 2255(h), the Court held that:

The only argument the Applicant advances is that he was sentenced under the residual clause if Descamps applies retroactively. Because it does not, the Applicant has failed to demonstrate that he was ‘sentenced under the residual clause.’ Accordingly, his § 2255(h) application to file a second or successive motion must be dismissed for lack of jurisdiction.

Id. at 23; King v. United States , 202 F.Supp.3d. 1346, 1360–61, No. 16–22261–CIV, 2016 WL 4487785, at *10 (S.D. Fla. Aug. 24, 2016). However, the Court "permit[ted] the Movant to amend his 2255 motion to show that the sentencing record or controlling law (as it existed at the time of sentencing) establishes that he was sentenced under the residual clause in violation of Johnson ." Id. The Court adopts its August 24^th Order as the final order in this case consistent with this supplemental order.

On September 21, 2016, King filed his Motion for Reconsideration, arguing that the Court erred in its application of § 2255(h) and that Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) and Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), apply retroactively when determining whether his prior convictions constitute predicate offenses under the Armed Career Criminal Act's ("ACCA") elements, enumerated and drug clauses. (D.E. 24.) The Movant also asserts, for the first time, that the law at the time of sentencing demonstrates that the Court must have relied on the residual clause. Based on this new argument, Movant contends he has satisfied the requirements of § 2255(h) and that the Court should grant relief pursuant to Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).²

To warrant reconsideration, the moving party "must demonstrate why the court should reconsider its prior decision and set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. A motion for reconsideration should raise new issues, not merely address issues litigated previously." Instituto de Prevision Militar v. Lehman Bros. , 485 F.Supp.2d 1340, 1343 (S.D. Fla. 2007) (quoting Socialist Workers Party v. Leahy , 957 F.Supp. 1262, 1263 (S.D. Fla. 1997) ). "Courts have distilled three major grounds justifying reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice." Id. (quoting Cover v. Wal–Mart Stores, Inc. , 148 F.R.D. 294, 295 (M.D. Fla. 1993) ).

Because there has been no intervening change in controlling law and no new evidence has been discovered, Movant's only ground for reconsideration is that the Court clearly erred and must vacate its previous order to prevent manifest injustice.

I. The Court Did Not Clearly Err by Holding that Descamps is Not Retroactive for the Purposes of a Second or Successive 2255 Motion

The Eleventh Circuit has squarely held that Descamps is not retroactive for the purposes of a second or successive 2255 motion. In re Hires , 825 F.3d 1297, 1303 (11th Cir. 2016) ("[W]hile Descamps is retroactive for a first § 2255 motion, we have held that Descamps is not retroactive for purposes of a second or successive § 2255 motion.") (Emphasis added); In re Griffin , 823 F.3d 1350, 1356 (11th Cir. 2016) (quoting Ezell v. United States , 778 F.3d 762, 763 (9th Cir. 2015) ("[T]he the Supreme Court did not announce a new rule of constitutional law in Descamps . Rather, it clarified—as a matter of statutory interpretation—application of the ACCA in light of existing precedent."), cert. denied, ––– U.S. ––––, 136 S.Ct. 256, 193 L.Ed.2d 212 (2015) and In re Jackson , 776 F.3d 292, 296 (5th Cir. 2015) ("Nothing in Descamps indicates that its holding announced a new rule that was constitutionally based, and Descamps did not announce that its holding applied retroactively to cases on collateral review.")); In re Thomas , 823 F.3d 1345, 1349 (11th Cir. 2016) ("Thomas has not made a prima facie showing that he has satisfied the criteria of § 2255(h)(2). As an initial matter, Thomas's claim that Descamps is a new rule of constitutional law that the Supreme Court has made retroactive to cases on collateral review is unavailing. ... Descamps did not announce a new rule of constitutional law as required under § 2255(h)(2).") (internal citations omitted); see also Mays v. United States , 817 F.3d 728, 734 (11th Cir. 2016) ("As the Supreme Court and other circuits have recognized, Descamps did not announce a new rule—its holding merely clarified existing precedent."). The reasoning the Eleventh Circuit employed to dispose of Hires , Griffin and Thomas binds this Court.³

Hires , Griffin and Thomas make clear that "Johnson does not serve as a portal to assert a Descamps claim." Hires , 825 F.3d at 1303. In Hires , the Eleventh Circuit explained that, "what matters [ ] is whether, at sentencing , [the Defendant's] prior convictions qualified pursuant to the residual clause, which would render his sentence subject to successive § 2255 challenge under Johnson , or pursuant to the elements clause, which would not." 825 F.3d at 1303 ; see also In re Moore , 830 F.3d 1268, 1271 (11th Cir. 2016) ("Whether at the time of his September 2005 sentencing hearing any of Moore's other felony convictions qualified as violent felonies within the statutory meaning is a matter we leave to the district court in the first instance.") (emphasis added). The Eleventh Circuit also made clear that Descamps cannot be used to "re-litigate whether a prior [predicate offense]" qualifies under the elements or enumerated clauses and that a movant's sentence could be affirmed even if the predicate offenses "would [not] count were [the defendant] being sentenced today." Hires , 825 F.3d at 1303.

For these reasons, the Court did not clearly err when it held that Descamps is not retroactive for the purposes of a second or successive 2255 motion. Because the Court's August 24, 2016 Order was not clearly erroneous, Movant's Motion for Reconsideration is denied consistent with the reasoning in that Order and as supplemented herein.

II. The Law at the Time of Sentencing Does Not Demonstrate the Court Relied on the Residual Clause

Although the Movant did not amend his 2255 motion, he did assert in his Motion for Reconsideration that his two 2001 drug convictions only count as one ACCA predicate offense and, based on the law at the time of sentencing, his burglary conviction did not qualify under the enumerated clause, and therefore, could only have qualified as an ACCA predicate under the residual clause. (D.E. 22 at 2–6.) The Court will construe this portion of the Motion for Reconsideration as an amendment to the Motion to Vacate and address whether Movant's new arguments clear the hurdle imposed by 28 U.S.C. § 2255(h).

When considering Movant's claims, the Court reviewed and considered the underlying record—specifically the sentencing transcript and the Movant's Presentence Investigation Report ("PSR"). Because the Court based Movant's sentence upon the uncontested facts in the PSR, the Court examined the PSR used at sentencing to determine whether, at the time of sentencing, his convictions would have qualified under the elements or enumerated clauses or would have only come under the residual clause. See United States v. Braun , 801 F.3d 1301, 1306 (11th Cir. 2015) ("This court has substantial precedent on the use of a Presentence Report in determining whether a prior conviction constitutes a violent felony under the ACCA."); United States v. Jones , 608 Fed.Appx. 822, 829 (11th Cir. 2015) ("We have never held that it is error to rely on undisputed PSR facts in making the ACCA determination, and therefore, the district court did not commit plain error by doing so."); United States v. Bennett , 472 F.3d 825, 834 (11th Cir. 2006) ("[T]he district court did not err in relying on the undisputed facts in Bennett's PSI to determine that his prior convictions were violent felonies under the ACCA and, therefore, that he was an armed career criminal."); United States v. Shelton , 400 F.3d 1325, 1330 (11th Cir. 2005) (finding no error where a defendant's sentence was enhanced based on facts in the PSR to which the defendant did not object at sentencing); United States v. Adams , 91 F.3d 114, 116 (11th Cir. 1996) ("The PSR documented Adams' prior convictions, pursuant to his guilty pleas, for burglarizing both dwellings and businesses. The information contained in the PSR about Adams' prior convictions established that they were generic burglaries under Taylor and therefore those burglaries were properly counted for purposes of the § 924(e) enhancement.").

Having reviewed the record and the law as it existed on the date of sentencing, August 31, 2007, the Court finds that two of Movant's convictions qualified under the ACCA's "drug offense" clause, his conviction for burglary qualified under the ACCA's enumerated clause and his aggravated...