Rozier v. United States

• Decision Date: 21 November 2012
• Docket Number: No. 11–13557.,11–13557.
• Citation: 701 F.3d 681
• Parties: Herbert ROZIER, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

701 F.3d 681

Herbert ROZIER, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 11–13557.

United States Court of Appeals, Eleventh Circuit.

Nov. 21, 2012.

Brenda Greenberg Bryn, Timothy Day, Fed. Pub. Defenders, Fort Lauderdale, FL, Michael Caruso, Fed. Pub. Def., Miami, FL, for Petitioner–Appellant.

Michael A. Rotker, U.S. Dept. of Justice—Crim. Div., Washington, DC, Kathleen Mary Salyer, Wifredo A. Ferrer, Lisa Tobin Rubio, Anne Ruth Schultz, U.S. Attys., Miami, FL, Scott Behnke, U.S. Atty., Fort Lauderdale, FL, for Respondent–Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, BARKETT, and HILL, Circuit Judges.

CARNES, Circuit Judge:

In 2001, Herbert Rozier was convicted of distributing crack cocaine in violation of 21 U.S.C. § 841(a). In calculating his pre-United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentencing guidelines range, the district court applied the United States Sentencing Guidelines § 4B1.1 (Nov. 2000) career offender enhancement because Rozier had “two prior felony convictions of ... a crime of violence.”¹ One of the two prior felony convictions that the court found was a “crime of violence” and that made Rozier a career offender was a Florida felony conviction for battery on a law enforcement officer in violation of Fla. Stat. § 784.07(2)(b). ² The career offender enhancement led to a guidelines range of 151 to 188 months imprisonment. Rozier objected to the enhancement, but the district court overruled that objection and sentenced him to 151 months in prison. Rozier appealed his sentence, contending that his prior conviction for felony battery on a law enforcement officer was not a conviction for a crime of violence under U.S.S.G. § 4B1.2(a).

In 2002, we affirmed Rozier's sentence. United States v. Rozier, 37 Fed.Appx. 499 (11th Cir.2002) (table) (unpublished) ( Rozier I). In rejecting his argument that his Florida felony conviction for battery on a law enforcement officer did not qualify as a crime of violence, we explained: “Although the battery of a law enforcement officer may be committed without actual violence, in committing the unlawful touching the offender creates the potential for violence to the officer, a violent response on the officer's part, and a risk of harm to bystanders.” Id. In the nomenclature used in this type of case, our holding was that although Rozier's Florida battery on a law enforcement officer conviction did not qualify as a crime of violence under the elements clause of § 4B1.2(a)(1), it did qualify as a crime of violence under the residual clause of § 4B1.2(a)(2). See e.g., Sykes v. United States, ––– U.S. ––––, 131 S.Ct. 2267, 2273–76, 180 L.Ed.2d 60 (2011); James v. United States, 550 U.S. 192, 196–209, 127 S.Ct. 1586, 1591–98, 167 L.Ed.2d 532 (2007); United States v. Chitwood, 676 F.3d 971, 975–81 (11th Cir.2012).³ Two of our sister circuits later reached the same conclusion about similar offenses involving battery on a law enforcement officer, holding that those offenses qualify as § 4B1.2(a)(2) crimes of violence or ACCA violent felonies under the residual clause. See United States v. Williams, 559 F.3d 1143, 1149 (10th Cir.2009) (holding that an Oklahoma conviction for battery on a police officer under a statute that criminalized the slightest touching qualified as a crime of violence under residual clause of the career offender guideline because, among other things, “[s]uch battery involves an overt act against the police officer—thereby not only initiating a confrontation, but risking a serious escalation in violence”); United States v. Dancy, 640 F.3d 455, 469–70 (1st Cir.2011) (concluding that a Massachusetts conviction for assault and battery on an officer qualifies as a violent felony under the residual clause of the ACCA, because it “nearly always poses a serious risk of actual or potential physical force and the likelihood of physical injury” and because the serious risk of injury is heightened by the fact that “law enforcement officers usually carry weapons when on duty”) (quotation marks omitted).

In 2011, Rozier filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, claiming that the sentencing court had erred in finding that his prior Florida felony conviction for battery on a law enforcement officer was a crime of violence for purposes of the U.S.S.G. § 4B1.1 career offender enhancement and that this Court had erred in rejecting that contention when we affirmed his sentence. He relied on the Supreme Court's decision in Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which the Court issued nearly eight years after our decision in his direct appeal. In Johnson, the Court held that Florida's felony battery offense is not a “violent felony” under the ACCA's elements clause, 18 U.S.C. § 924(e)(2)(B)(i).⁴130 S.Ct. at 1274. The Court, however, explicitly refused to decide whether that offense was a crime of violence under the ACCA's residual clause. Id.

The district court rejected Rozier's claim and dismissed his § 2255 motion. It reasoned that even if it had been error to apply the career offender enhancement in the case, “[a]n error that would justify a reversal on a direct appeal will not necessarily support a collateral attack on a final judgment” because “the question is whether the asserted error invokes an omission inconsistent with the rudimentary demands of fair procedure or a fundamental defect which inherently results in a complete miscarriage of justice.” The court, however, granted a certificate of appealability on the following issue: “[W]hether Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), should be given retroactive application so that Rozier's career offender classification should be eliminated and he should be re-sentenced.” Contrary to our dissenting colleague's selective reading, Dissenting Op. at 687, the COA does cover the questionswe address in this opinion by asking us to consider (1) whether the Johnson decision is retroactively applicable and (2) if it is, whether Rozier's career offender classification should be eliminated in light of that decision. See, e.g., McCoy v. United States, 266 F.3d 1245, 1248 n. 2 (11th Cir.2001) (“Although our review is limited to the issues specified in the COA, we will construe the issue specification in light of the pleadings and other parts of the record.”) (quotation marks omitted).

The government concedes, and we take it as a given, that the Supreme Court's Johnson decision is retroactively applicable. That does not, however, mean that Johnson entitles Rozier to § 2255 relief from the application of the career offender enhancement in his case, from the resulting sentence, and from our decision affirming that sentence and rejecting his claim on direct appeal. At least where there has been no intervening change in controlling law, a claim or issue that was decided against a defendant on direct appeal may not be the basis for relief in a § 2255 proceeding. See United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir.2000) (“Once a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255.” (alteration, citation, and quotation marks omitted)); see also Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974) (“[E]ven though the legal issue raised in a § 2255 motion was determined against the applicant on the merits on [direct appeal], the applicant may nevertheless be entitled to [collateral review on the legal issue] upon showing an intervening change in the law.” (emphasis added) (alteration and quotation marks omitted)); Fuller v. United States, 398 F.3d 644, 648–49 (7th Cir.2005) (holding that a movant could not relitigate his ineffective assistance of counsel claim in a § 2255 motion because the decision he relied on as an intervening change in law had “no relevance” to his case and gave the court “no reason to disturb the law of the case”); United States v. Roane, 378 F.3d 382, 396 n. 7 (4th Cir.2004) (“Because the Defendants have not pointed to any change in the law that warrants our reconsideration of these claims, we agree with the district court that they cannot relitigate these issues.”); White v. United States, 371 F.3d 900, 902 (7th Cir.2004) (“Invoking the doctrine of the law of the case, the courts, including our court, forbid a prisoner to relitigate in a collateral proceeding an issue that was decided on his direct appeal.”); United States v. Sanin, 252 F.3d 79, 85 (2d Cir.2001) (“Therefore, because [the movant's] arguments were considered previously, and because there has been no intervening change in the law entitling [him] to revisit issues already fully litigated, we find that [he] is procedurally barred from raising the issues presented in his current § 2255 petition.”); Oliver v. United States, 90 F.3d 177, 179–80 (6th Cir.1996) (holding that a movant “could not ... use a § 2255 petition to relitigate” a sentencing guidelines issue that was “fully and fairly presented on direct appeal” because there had not been “an intervening change in the law”); United States v. Prichard, 875 F.2d 789, 790–91 (10th Cir.1989) (“We believe the other two issues raised in the motion to vacate were fairly encompassed in [the movant's] direct appeal. Absent an intervening change in the law of a circuit, issues disposed of on direct appeal generally will not be considered on a collateral attack by a motion pursuant to § 2255. There is no new law applicable to [the movant's] criminal conduct that would inure to his benefit.” (citations omitted)).

The question, then, is whether the Supreme Court's Johnson decision is a change in the controlling law that was applicable at the time of Rozier's sentencing and at the time we affirmed his sentence. The answer is no. We do not...