Harris v. U.S.

757 F.Supp.2d 1303

Rashid HARRIS, Petitioner,

v.UNITED STATES of America, Respondent.

Case No. 09–80578–CIV.

United States District Court, S.D. Florida.

Dec. 17, 2010.

Margaret Y. Foldes, Federal Public Defender's Office, Miami, FL, for Petitioner.Lothrop Morris, United States Attorney's Office, West Palm Beach, FL, for Respondent.

ORDER SUSTAINING PETITIONER'S OBJECTIONS TO FEBRUARY 10, 2010 REPORT & RECOMMENDATION OF MAGISTRATE JUDGE & GRANTING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 18 U.S.C. § 2255

DANIEL T.K. HURLEY, District Judge.

This cause is before the court upon petitioner's motion, pursuant to 28 U.S.C. § 2255, to vacate his sentence as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Two central questions must be answered to resolve the petitioner's motion: (1) whether a defendant, who failed to challenge at sentencing or on direct appeal the adequacy of the predicate convictions used to support an armed career criminal sentencing enhancement, may raise the issue on habeas corpus, and (2) whether the government, which failed to object to an error in defendant's presentence investigation report, may seek to correct the error in the context of this habeas proceeding. For the reasons stated below, the court concludes that the answer to the first question is “yes,” and the answer to the second question is “no.”

I. Facts & Procedural Background

Petitioner pled guilty to the crime of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). Upon acceptance of petitioner's plea, and pursuant to Fed.R.Crim.P. 32(c)(1), the court ordered the United States Probation Office to prepare a presentence investigation report. The presentence investigation report (PSR) identified three prior state convictions as qualifying predicate offenses requiring a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). ¹ The listed convictions were for battery on a law enforcement officer, § 784.07(2)(b), Fla. Stat., child abuse, § 827.03(1), Fla. Stat., and sale of 2.5 grams of crack cocaine, § 893.13(1)(a), Fla. Stat.

Pursuant to Fed.R.Crim.P. 32(e)(2), requiring that the United States Probation Office make the PSR available for disclosure to the attorneys for the parties at least thirty-five days prior to the scheduled sentencing proceeding, the Probation Office disclosed the PSR to both parties by mailing on April 15, 2004. Under Fed.R.Crim.P. 32(f)(1), both the parties were required to serve written objections, if any, to the PSR to each other and to the probation officer within fourteen days of receipt of the report. As memorialized in the final report submitted May 10, 2004, neither the government nor defendant reported any objections to the PSR prior to the scheduled sentencing on May 28, 2004.

At the sentencing hearing, petitioner's attorney objected to his armed career offender designation based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In other words, defense counsel argued that petitioner's prior convictions should have pled before and determined by the jury. Petitioner did not raise any objection to his ACCA classification based on the sufficiency of the recited predicate offenses.

In response to questioning by the court, both the government and the defense stated they had no objections to the factual accuracy of the PSR or the legal conclusions drawn from those facts. The court ultimately overruled the defendant's Apprendi objection and sentenced him to the fifteen year mandatory minimum term mandated by § 924(e) of the Armed Career Criminal Act, 18 U.S.C. § 924(e).

Petitioner appealed to the Eleventh Circuit Court of Appeals, again challenging his career offender designation based on Apprendi, Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Petitioner, however, did not challenge his ACCA classification based on the adequacy of the predicate convictions as “violent felonies” or “serious drug offenses.” The appellate court initially reversed petitioner's sentence based on Booker, see United States v. Harris, 142 Fed.Appx. 413 (11th Cir.2005) (unpub.), but later reinstated the sentence on rehearing, finding that his sentence did not implicate Blakely or Booker because it was set at the statutory mandatory minimum. United States v. Harris, 151 Fed.Appx. 882 (11th Cir.2005) (unpub.), cert. den. 547 U.S. 1009, 126 S.Ct. 1479, 164 L.Ed.2d 257 (2006).

On April 16, 2008, the United States Supreme Court issued its opinion in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Starting with the premise that the ACCA requires application of a categorical approach by which the elements of the statute of conviction, not the facts supporting the conviction, are evaluated to determine whether a crime qualifies as a predicate offense under the ACCA, the Begay court held that the ACCA residual clause does not cover “every crime that presents a serious potential risk of physical injury to another,” but only those “that are roughly similar, in kind as well as in degree of risk posed, to the examples” included in the residual clause's definition of “violent felony”—namely, burglary, arson, extortion and crimes involving the use of explosives—all of which involve “purposeful, violent and aggressive conduct” and demonstrate an increased likelihood that the offender, in later possessing a gun, will use that gun deliberately to harm a victim. Begay, at 142–45, 128 S.Ct. 1581. ²

Applying that standard in the case before it, the Supreme Court held that the New Mexico felony offense of driving under the influence of alcohol (DUI) is not a “violent felony” under the ACCA residual clause because, even assuming that DUI involves conduct that “presents a serious potential risk of physical injury to another,” the crime is too unlike the residual clause's example crimes involving intentional, purposeful actions to qualify as a “violent felony.”

Petitioner filed his motion to vacate his sentence under 28 U.S.C. § 2255 on April 14, 2009, asserting for the first time that he is not an armed career criminal under the ACCA because his convictions for child abuse conviction and battery on a police officer do not qualify as “violent felonies” as defined in Begay. Thus, he asserts that he is actually innocent of being an armed career criminal and, consequently, his 15–year sentence exceeds the 10–year maximum for the crime of conviction.

This court referred the petition to a magistrate judge who, after a hearing, filed a report and recommendation finding that petitioner's prior convictions for battery on a police officer and child abuse qualified as “violent felonies” under the ACCA pursuant to United States v. Johnson, 528 F.3d 1318 (11th Cir.2008) (holding that Florida crime of battery is a violent felony which may be committed by “intentional touching”) and United States v. Castillo–Villagomez, 316 Fed.Appx. 874, 876 (11th Cir.2008) (unpub.) (holding that cruelty to children is a violent felony, even though it may be inflicted with non-physical “mental pain,” since it is a felony involving substantial risk that physical force may be used against victim). In addition, the magistrate judge suggested that petitioner's failure to raise his claim that he had been sentenced incorrectly as an aimed criminal career offender on direct appeal constitutes a procedural default providing an independent basis for the court to decline to consider the merits of his claim.

On March 2, 2010—after the magistrate judge issued his original report and recommendation but while the petitioner's § 2255 motion was still pending before this court—the United States Supreme Court issued its opinion in Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 1270–71, 176 L.Ed.2d 1 (2010), holding that the Florida felony offense of battery, which could be committed by any intentional physical contact, no matter how slight, could not be classified as a “violent felony” under the ACCA elements clause, 18 U.S.C. 924(e)(2)(B)(i),³ because the elements of this crime do not necessarily include the use of physical force against the person of another.

In light of the Supreme Court's holding, the government filed notice of its “withdrawal of procedural bar,” expressing its intent to withdraw its earlier assertion of a procedural bar to petitioner's ACCA claim, and requesting that the petitioner's motion to vacate be granted solely as to his claim that the court erred in imposing a sentence under the ACCA on ground that battery on a law enforcement officer does not qualify as a violent crime under the ACCA [DE # 15], A few days later, however, the government filed a motion to withdraw its concession, explaining that its initial response focused only on the Supreme Court's holding in Johnson under the ACCA elements clause, but failed to consider an alternative argument that the Supreme Court had declined to reach, i.e. that battery qualifies as a violent felony under the residual clause of 924(e)(2)(B)(ii) [DE # 16]. On this stated premise, the government sought permission to withdraw its earlier pleading and to substitute a new pleading advancing the government's “correct legal position,” viz., “that the Florida offense of battery on a law enforcement officer is a violent felony under the [ACCA's] residual clause.”

Later, the government filed another document captioned “notice of supplemental authority” and “renewed request to withdraw pleading,” [DE # 19] this time alerting the court, for the first time, that petitioner's criminal history included a conviction of “resisting arrest with violence,” an offense which had been listed incorrectly in the original PSR as a conviction for “resisting arrest without violence.” Attached to this notice was...