Leone v. United States

233 F.Supp.3d 1366

Salvatore LEONE, Movant,

v.UNITED STATES of America, Respondent.

CASE NO. 16–22200–CIV–LENARD/WHITE

Criminal Case No. 95–00960–Cr–Lenard

United States District Court, S.D. Florida.

Signed February 2, 2017

Michael Caruso, Federal Public Defender's Office, Miami, FL, for Movant.

Noticing 2255 US Attorney, United States Attorney's Office, Miami, FL, for Respondent.

OMNIBUS ORDER DENYING MOVANT'S MOTION TO RECONSIDER (D.E. 27); GRANTING MOVANT'S REQUEST FOR A FINAL ORDER OF DISMISSAL (D.E. 27); ADOPTING AND SUPPLEMENTING THE COURT'S PRIOR NON–FINAL ORDER (D.E. 25); 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 VACATE (D.E. 27)¹ ; DENYING A CERTIFICATE OF APPEALABILITY, AND CLOSING CASE

JOAN A. LENARD, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on Movant Salvatore Leone's Motion to Reconsider, or, in the Alternative, Request for Final Order of Dismissal and Certificate of Appealability, ("Motion," D.E. 27), which the Court construes, in part, as an Amended Motion to Vacate pursuant to 28 U.S.C. § 2255.² The United States filed a Response on September 7, 2016, ("Response," D.E. 28), to which Movant did not Reply. Upon review of the Motion, Response, and the record, the Court finds as follows.

I. Relevant Background

In November of 1996, Movant was adjudicated guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See United States v. Leone , 95–00960–Cr–Lenard (S.D. Fla. Nov. 6, 1996). The United States Probation Office issued a Presentence Investigation Report ("PSI") listing twenty-two prior convictions³ and recommending that Movant receive a sentence enhancement pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Based on information contained in the PSI, the Government filed a Motion for Upward Departure. 95– 00960–Cr–Lenard, D.E. 93 (S.D. Fla. Aug. 30, 1996). Movant filed "objections" to the PSI in which he conceded that his prior burglary convictions "are considered 'violent felonies' under the [ACCA]," but argued that a sentence at the low end of the guidelines range was appropriate. 95–00960–Cr–Lenard, D.E. 96 (Sept. 20, 1996). Leone objected solely to any upward departure of the guidelines range.⁴ See Tr. of Nov. 1, 1996 Sentencing Hr'g at 3:16–20, 95–00960–Cr–Lenard, D.E. 111 (Mar. 7, 1997). At the November 1, 1996 sentencing hearing, the Court sustained Movant's objection, denied the Motion for upward departure, adopted the factual findings and guideline applications contained in the PSI, and sentenced Movant within the guidelines.⁵ See id. at 26:4–13, 29:7–9; see also 95–00960–Cr–Lenard, D.E. 106 (Nov. 15, 1996).

In Johnson v. United States , the United States Supreme Court held that the ACCA's residual clause is unconstitutionally vague. ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). In Welch v. United States , the Supreme Court held that Johnson announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review. ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

After the Supreme Court issued its decision in Welch , 136 S.Ct. at 1257, Movant filed an application under 28 U.S.C. § 2255(h) seeking permission from the Court of Appeals to file a second or successive 2255 motion.⁶ On June 15, 2016, the Eleventh Circuit Court of Appeals granted Movant's application to file a second or successive 2255 motion, finding that because the district court made no explicit findings at the time of sentencing, Leone had "made a prima facie showing that he has raised a claim that meets the statutory criteria set forth in 28 U.S.C. § 2255 [.]" (D.E. 1 at 9.)

On June 24, 2016, Movant, who is now represented by counsel, filed his second or successive 2255 Motion in this Court. (See D.E. 5.) Therein, Movant argued that the Court enhanced his sentence under the ACCA's now-void residual clause, and that his prior burglary convictions do not qualify as "violent felonies" under the ACCA's "enumerated" or "elements" clauses. (See id. ) Movant based his argument on the legal assumption 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, 2257, 195 L.Ed.2d 604 (2016), apply retroactively when determining whether his prior convictions qualify as predicate offenses under the ACCA's elements and enumerated clauses. (See id. at 5–17.)

On August 31, 2016, the Court entered a Sua Sponte Non–Final Order Dismissing Without Prejudice Movant's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255.⁷ ("Non–Final Order," D.E. 25.) The Court concluded that Descamps and Mathis did not apply retroactively to second or successive 2255 motions. (Id. at 21.)

Other than the new rule made retroactive by the Supreme Court (i.e., Johnson ), the Court must apply the law as it existed at the time of sentencing to determine whether the Movant's sentence was enhanced under the ACCA's residual clause. See Ziglar v. United States , 201 F.Supp.3d 1315, [1323–24] 2016 WL 4257773, at *7 (M.D. Ala. 2016).... Here, the only argument Movant advances is that he was sentenced under the residual clause if Descamps applies retroactively. Because it does not, Movant has failed to demonstrate that he was "sentenced under the residual clause." Accordingly, his Section 2255(h) application to file a second or successive motion must be dismissed for lack of jurisdiction.

(Id. at 22–23.) The Court provided Movant fourteen days to file an Amended 2255 Motion that stated a pure Johnson claim—that is, one that does not rely on the retroactivity of Descamps or Mathis —or to request the entry of a final order of dismissal. (Id. at 24.)

On August 31, 2016, Movant filed the instant Motion for Reconsideration or, alternatively, for a final order of dismissal and a certificate of appealability. (D.E. 27.)

II. Legal Standard

Although Movant does not specify the legal framework under which he seeks reconsideration, Federal Rule of Civil Procedure 60(b) provides that "[o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for" certain specified reasons. Fed. R. Civ. P. 60(b). Although Rules 60(b)(1) through (5) are inapplicable here, Rule 60(b)(6) is a catch-all provision that permits a court to reconsider an order for "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6).

"Federal courts grant relief under Rule 60(b)(6) only for extraordinary circumstances." Frederick v. Kirby Tankships, Inc. , 205 F.3d 1277, 1288 (11th Cir. 2000) (citing High v. Zant , 916 F.2d 1507, 1509 (11th Cir. 1990) ); see also Booker v. Singletary , 90 F.3d 440, 442 (11th Cir. 1996) ("The vacation of a judgment under Rule 60(b)(6) is an extraordinary remedy."). "To warrant relief under Rule 60(b)(6), not only must Plaintiffs show sufficiently extraordinary circumstances, but also that absent such relief, an extreme and unexpected hardship will result." Doe v. Drummond Co. , 782 F.3d 576, 612 (11th Cir. 2015) (citation and internal quotation marks omitted). Additionally:

The "purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Z.K. Marine Inc. v. M/V Archigetis , 808 F.Supp. 1561, 1563 (S.D. Fla. 1992). In particular, there are three major grounds which justify reconsideration: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or prevent manifest injustice. See Offices Togolais Des Phosphates v. Mulberry Phosphates, Inc. , 62 F.Supp.2d 1316, 1331 (M.D. Fla. 1999) ; See also Sussman v. Salem, Saxon & Nielsen, P.A. , 153 F.R.D. 689, 694 (M.D. Fla. 1994). In order to reconsider a judgment there must be a reason why the court should reconsider its prior decision, and the moving party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision. Sussman , 153 F.R.D. at 694. A "motion for reconsideration should not be used as a vehicle to present authorities available at the time of the first decision or to reiterate arguments previously made." Z.K. Marine Inc. , 808 F.Supp. at 1563. Instead, a motion for reconsideration is appropriate where the "Court has patently misunderstood a party, or has made a decision outside of the adversarial issues presented to the Court by the parties, or has made an error not of reasoning, but of apprehension.... Such problems rarely arise and the motion to reconsider should be equally rare." Z.K. Marine Inc. , 808 F.Supp. at 1563 (citing Above the Belt, Inc. v. Mel Bohannan Roofing, Inc. , 99 F.R.D. 99, 101 (E.D. Va. 1983) ; Moog, Inc. v. United States , No. 90–215E, 1991 WL 255371, at *1, 1991 U.S. Dist. Lexis 17348, at *2 (W.D.N.Y. Nov. 21, 1991) ).

Burger King Corp. v. Ashland Equities, Inc. , 181 F.Supp.2d 1366, 1369 (S.D. Fla. 2002).

III. Discussion

Movant argues that the Court should reconsider its Non–Final Order dismissing his Motion for lack of jurisdiction for two reasons. First, Movant argues that by requiring him to demonstrate that he was sentenced under the ACCA's residual clause in order to satisfy 28 U.S.C. § 2255(h), the Court held Movant to a higher standard than the one elucidated by the Eleventh Circuit in In re Adams , 825 F.3d 1283 (11th Cir. 2016) and In re Rogers , 825 F.3d 1335 (11th Cir. 2016), i.e., the "clear or unclear" test. (Mot. at 1–2.) Second, he argues that the record establishes that he was sentenced under the ACCA's residual clause, citing to a statement the Assistant U.S. Attorney made at his sentencing hearing. (Id. at 2–3.) The Court rejects these arguments.

a. The Court applied the correct legal standard.

First, Movant argues that by requiring him to establish that he was sentenced under the ACCA's residual clause, the Court...