Opinion
Case No. 8:08-cr-348-T-17 TGB, 8:10-cv-1416-T-17 TGB.
January 28, 2011
ORDER
This cause is before the Court on Defendant Ramon C. Green's motion to vacate, set aside, or correct an allegedly illegal sentence pursuant to 28 U.S.C. § 2255. (Doc. cv-1; cr-35). A review of the record demonstrates that, for the following reasons, the motion to vacate must be denied.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On March 16, 2009, Green pled guilty, pursuant to a written plea agreement, to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count One of the Indictment). Docs. cr-28 (minute entry); cr-23 (plea agreement; cr-37 (transcript). At the time of Green's indictment, the United States believed Green was an Armed Career Criminal (ACCA) under 18 U.S.C. § 924(e), based upon, among other things, a conviction for felony fleeing and eluding. By the time Green pled guilty, however, the Eleventh Circuit Court of Appeals had determined that the particular offense of fleeing and eluding that Green was convicted of was not a crime of violence. See United States v. Harrison, 558 F.3d 1280, 1290-96 (11th Cir. 2009) (Florida fleeing or eluding police officer without requirement of high rate of speed or wanton disregard for safety of persons or property is purposeful but does not present serious potential risk of physical injury to another and is not sufficiently violent and aggressive and therefore does not satisfy ACCA residual clause). As a result, at the change of plea hearing, all parties agreed that Green was not subject to the penalties of the ACCA. Doc. 37 at 3-5 (transcript). On April 6, 2009, Green's guilty plea was accepted and he was adjudicated guilty. Doc. cr-31 (minute entry).Pursuant to the terms of his plea agreement, Green expressly waived his right to appeal his sentence:
. . . or to challenge it collaterally on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a).
Doc. cr-23 at 12-13.
A presentence investigation report (PSR) was prepared prior to Green's June 5, 2009, sentencing date. The PSR calculated Green's base offense level under USSG § 2K2.1(a)(2) as 24 based on Green's two prior convictions for crimes of violence. At Green's sentencing proceeding on June 5, 2009, he did not object to the use of his two prior convictions: 1) robbery in the first degree, case no. CRC 99-15804CFANO-A; and 2) resisting an officer with violence and battery of a law enforcement officer, case no. CRC 04-10979CFANO-K, to increase his base offense level under USSG § 2K2.1(a)(2) to level 24. Since there were no objections to the facts or application of the guidelines as presented in Green's PSR, the Court adopted those statements and guideline applications as its findings of fact. Doc. cr-38 at 4 (transcript). This Court then sentenced Green to 77 months' incarceration, to be followed by a 24-month term of supervised release. Docs. cr-32 (minute entry); cr-33 (Judgment, signed on June 8, 2009), and cr-38. In accordance with the terms of his plea agreement, Green did not file a direct appeal.
On June 22, 2010, Green filed the instant Section 2255 motion challenging his sentence in light of the Supreme Court's decision in Johnson v. United States, 130 S. Ct. 1265 (2010). Specifically, Green alleges that the Court lacked jurisdiction to enhance his sentence under USSG § 2K2.1 (Ground One); he is actually innocent of the enhanced sentence (Ground Two); because of this enhancement, his rights to due process were violated (Ground Three); his enhanced sentence must be vacated to prevent a miscarriage of justice (Ground Four); and his counsel was ineffective "in entering an appeal waiver that would not cover any claim argued in Grounds One through Four, and waiver was unknowingly and involuntarily entered" (Ground Five). Doc. cv-1 (attachment).
GUILTY PLEA WAIVER
In his 2255 motion, Green raises claims challenging his sentence in light of the Supreme Court's decision in Johnson v. United States, 130 S. Ct. 1265 (2010). This Court is required to dismiss a section 2255 motion, without requiring the United States to file an answer, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief[.]" See Rules Governing Section 2255 Proceedings, 4(b). Moreover, if it is clear from the plea agreement and the Rule 11 colloquy that the petitioner knowingly and voluntarily waived his right to collaterally attack his sentence, "that waiver should be enforced without requiring the government to brief the merits of the section 2255 motion." United States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997) (addressing appeal waiver).
The right to collaterally challenge a sentence is statutory and can be waived if done so knowingly and voluntarily. Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005). For this Court to enforce such a waiver, the Government need only demonstrate either (1) that the district court specifically questioned the defendant concerning the waiver during the Fed.R.Crim.P. 11 colloquy; or (2) that it is manifestly clear from the record that the defendant otherwise understood the full significance of the waiver. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993). In this case, both prongs of this test have been satisfied.
A defendant's waiver of the right to appeal "directly or collaterally" encompasses his right to challenge his sentence in a section 2255 proceeding. See Williams, 396 F.3d at 1342; United States v. White, 307 F.3d 336, 341-44 (5th Cir. 2002); Garcia-Santos v. United States, 273 F.3d 506, 508-09 (2d Cir. 2001); Davila v. United States, 258 F.3d 448, 451-52 (6th Cir. 2001); United States v. Cockerham, 237 F.3d 1179, 1183-87 (10th Cir. 2001); Mason v. United States, 211 F.3d 1065, 1069-70 (7th Cir. 2000). The waiver is enforceable against claims of ineffective assistance of counsel at sentencing, because "a contrary result would permit a defendant to circumvent the terms of the sentence-appeal waiver simply by recasting a challenge to his sentence as a claim of ineffective assistance, thus rendering the waiver meaningless." Williams, 396 F.3d at 1342; See also Cockerham, 237 F.3d at 1182 (appeal and collateral attack waiver provision in plea agreement waives the right to section 2255 petition based on ineffective assistance of counsel unless challenge concerns the validity of the plea or waiver); Mason, 211 F.3d at 1069 (same).
In particular, if the complaint underlying the ineffective assistance claim was waived by a defendant's plea agreement, then the ineffective assistance claim was also waived. See Williams, 396 F.3d at 1342 (acknowledging that exceptions in plea agreement to defendant's waiver of appeal did not apply to the claims raised in the petition); United States v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (although "dress[ed] up" as a Sixth Amendment claim, defendant really is challenging the correctness of his sentence under the guidelines and, therefore, is barred by the plain language of his plea agreement; to allow his claim would be to "render [] meaningless" such plea agreement waivers). For the reasons explained below, the record plainly demonstrates that Green waived his right to collaterally challenge his sentence.
In this case, Green expressly waived his right to appeal his sentence directly or to challenge it collaterally, given the exceptions identified above. First, as noted in the Facts section above, Green's plea agreement included waiver language. Green initialed the bottom of the page of his plea agreement signaling he read and understood the waiver. Docs. cr-23; and cr-37 at 11-12. In addition, at his change of plea hearing, the Court conducted the following colloquy with Green to make certain Green understood the terms of the appeal waiver:
COURT: Under Paragraph 5 you can only appeal if the sentence exceeds the guideline range as determined by the Court under the guidelines, or the sentence exceeds the statutory maximum penalty of 10 years in prison, or the sentence violates the 8th Amendment to the Constitution, which prohibits excessive fines and cruel and unusual punishment. Those are the only things you can appeal about your sentence.
Do you understand that?
GREEN: Yes.
COURT: And in particular what you cannot appeal is the way the Court calculates the sentencing guidelines. Do you understand that?
GREEN: Yes, sir.
COURT: And furthermore, you cannot come back to this Court at some later time and complain about the calculation either.
Do you understand that?
GREEN: Yes.
COURT: And that includes being unable to come back and complain that your lawyer was somehow ineffective with respect to the guidelines. Do you understand that?
GREEN: Yes, sir.
COURT: Do you have any question about that provision?
GREEN: No.
COURT: And are you agreeing to it freely and voluntarily as part of this plea agreement?
GREEN: Yes.
Doc. cr-37 at 34-35. In concluding the Rule 11 colloquy, the Court found there to be a factual basis to support Green's plea, and that his plea was entered "freely, voluntarily, and knowingly with the advice of a lawyer with whom" Green said he was satisfied. Doc. cr-37 at 40.
The record shows Green expressly waived his right to collaterally challenge his sentence. None of the exceptions to the waiver have been met. Therefore, in light of the waiver contained in Green's plea agreement into which he knowingly and voluntarily entered, this Court could this section 2255 motion without addressing the merits of the issues raised.
DISCUSSION OF MERITS COGNIZABILITY
In his motion, Green claims that, pursuant to Johnson v. United States, 130 S. Ct. 1265 (2010), he is: . . . actually innocent of the enhanced sentence imposed under USSG § 2K2.1, where Movant's prior offenses of battery on a law enforcement officer and resisting an officer with violence are not `crimes of violence' . . . Doc. cv-1 (attachment). Green further argues that his lawyer was ineffective for advising him to enter into an appeal waiver that precludes the challenges he now raises in his 2255 motion. Doc. cv-1 (attachment). For the reasons discussed below, Green's claims have no merit.
Green's claims, which he grounds in the Fifth Amendment (due process) and the Sixth Amendment (ineffective assistance of counsel), are cognizable under 28 U.S.C. § 2255, to the extent he has not previously waived his right to collaterally attack his sentence. See, e.g., Lynn v. United States, 365 F.3d 1225, 1234 n. 17 (11th Cir. 2004). All of his claims are expressly premised on the idea that Green's prior convictions for battery on a law enforcement officer and resisting an officer with violence are not crimes of violence. As explained below, however, although the claims are cognizable as a legal matter, Green was properly sentenced by the District Court, even in light of Johnson.
PROCEDURAL DEFAULT
Ordinarily, claims that previously were available yet were not raised in a prior proceeding are procedurally defaulted and barred from consideration on collateral review. Bousley v. United States, 523 U.S. 614, 622-24 (1998). A defendant must assert a claim at trial and on direct appeal or the claim will be subject to the procedural default rule. Massaro v. United States, 538 U.S. 500, 504 (2003); Murray v. Carrier, 477 U.S. 478, 490-92 (1986). Green did not challenge at sentencing or on direct appeal that his prior convictions of battery on a law enforcement officer and resisting arrest with violence qualify as prior crimes of violence for purposes of establishing his base offense level under USSG § 2K2.1. Therefore, he has procedurally defaulted on the legal assertions in his 2255 petition.To overcome the procedural default, Green must demonstrate cause for his failure to raise the claim earlier and actual prejudice resulting from the alleged error. See United States v. Frady, 456 U.S. 152, 170 (1982). The "cause and prejudice" standard requires Green to show not only that "some objective factor external to the defense" impeded his efforts to raise the issue earlier, Coleman v. Thompson, 501 U.S. 722, 753 (1991), but also that the error he alleges "worked to his actual and substantial disadvantage . . ." Frady, 456 U.S. at 170. If Green cannot show both cause for his procedural default and prejudice, this Court should not consider his challenge to his sentence unless he demonstrates "actual innocence." See Bousley, 523 U.S. at 620-24.
1. Cause
Green does not specifically address his cause for failing to raise these issues previously. Rather, he claims in Ground Five of his motion that his counsel was ineffective for allowing him to enter into an appeal waiver preventing him from raising his current challenge to his sentence (liberally construed). Doc. cv-1 (attachment). To show that he suffered constitutionally ineffective assistance of counsel, Green must allege and prove that his counsel's deficient performance worked to his actual and substantial disadvantage. Reece v. United States, 119 F.3d 1462, 1465-68 (11th Cir. 1997). He must show that "counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). "Judicial scrutiny of counsel's performance must be highly deferential," and "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound trial strategy." Id. at 689 (internal citations omitted). To prove deficient performance, "[a] petitioner must identify specific acts or omissions that were not the result of reasonable professional judgment, and a court should deem these acts or omissions deficient only if they `were outside the wide range of professionally competent assistance.'" Brownlee v. Haley, 306 F.3d 1043, 1059 (11th Cir. 2002) (quoting Strickland, 466 U.S. at 690). Because of the "strong presumption in favor of competence," a petitioner seeking to prove a Sixth Amendment violation "must establish that no competent counsel would have taken the action that his counsel did take." Chandler v. United States, 218 F.3d 1305, 1314-15 (11th Cir. 2000) (en banc).
In this case, Green contends only that his counsel was ineffective because he allowed Green to enter into his plea agreement, which contained an appeal waiver precluding post-conviction challenges. As discussed above, however, the record clearly demonstrates that Green personally and expressly waived his right to appeal. He understood the consequences and knowingly entered his guilty plea with the appeal waiver. Consequently, Green cannot establish "cause" for his failure to challenge the designation of his prior conviction as a violent felony in the District Court or on direct appeal and he is procedurally barred from challenging his sentence on that ground at this stage.
2. Prejudice
Even if Green could establish that his counsel's performance was constitutionally deficient, he still would have to "affirmatively prove prejudice" by showing that counsel's errors "actually had an adverse effect on the defense." Strickland, 466 U.S. at 693. To make this showing, Green has to demonstrate more than "some conceivable effect on the outcome of the proceeding." Id. Although he need not show that the outcome of his case would more likely than not have been different absent counsel's ineffectiveness, he "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Green cannot show prejudice. As explained below, this Court properly sentenced Green under USSG § 2K2.1 because he has two qualifying prior convictions of crimes of violence. Nothing in the Supreme Court's or the Eleventh Circuit's subsequent decisions changes the fact that Green has these two qualifying predicate convictions. Similarly, there is nothing his counsel could have done to change the reality of Green's criminal history. Therefore, Green has established neither cause for his procedural default nor actual prejudice resulting from the alleged error. And, as discussed below, Green's claims lack merit in any event. Green cannot show that he is actually innocent of the enhancement in his offense level in accordance with USSG § 2K2.1. Taken together then, Green's claims in his 2255 petition must be rejected.
3. Actual innocence
"`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley, 523 U.S. at 623; cf. Johnson v. Singletary, 938 F.2d 1166, 1184 (11th Cir. 1991) (en banc) (noting that "the Supreme Court has admonished courts to apply the test for `actual innocence' in light of all probative evidence, including evidence that was admitted (or excluded) as a result of constitutional error") (emphasis omitted) (citing Kuhlmann v. Wilson, 477 U.S. 436, 454 n. 17 (1986)). Green's "actual innocence" argument (Ground Two, Doc. cv-1) is not premised on the idea that he did not commit the underlying crimes of violence. Rather, Green asserts that the Supreme Court's findings in Johnson, 130 S. Ct. at 1271, mandate that his convictions for resisting an officer with violence and battery on a law enforcement officer are not violent felonies under the ACCA, and therefore cannot be used to enhance his base offense level under USSG § 2K2.1.
The Johnson Court held that, because the Florida felony battery offense at issue in that case required "proof of only the slightest unwanted physical touch," such as a tap on the shoulder, the Florida offense of battery could not categorically be considered a violent felony under section 924(e)(2)(B)(I). Johnson, 130 S. Ct. at 1269-70, 1273-74. Relying on Johnson, Green challenges the use of his prior conviction for resisting an officer with violence and battery of a law enforcement officer, Case No. CRC 04-10979CFANO-K, as a second qualifying conviction for a crime of violence under USSG § 2K2.1. Green makes no claim that his first degree robbery conviction, Case No. CRC 99-105804CFANO-A, on or about June 19, 1999, fails to qualify as a crime of violence for purpose of establishing his base offense level under the USSG. The issue then is whether Green is actually innocent of a crime of violence for either of his convictions — resisting an officer with violence or battery of a law enforcement officer — stemming from case No. CRC 04-10979CFANO-K, which together with his robbery conviction leads to a base offense level of 24 under USSG § 2k2.
Fla. Stat. § 775.083(1)(a) provides that a battery occurs when a person either "1. [a]ctually and intentionally touches or strikes another person against the will of the other," or "2. [i]ntentionally causes bodily harm to another person."
The battery and resisting an officer with violence convictions do not count as separate crimes of violence because they were contained in the same charging instrument. See USSG §§ 4B1.2(c)(2) and 4A1.2(a)(2)(A).
Although the PSR indicates that Green was sentenced as a juvenile offender, the transcript of the sentencing hearing clarifies that the armed robbery case was transferred to adult court in Pinellas County and that Green was sentenced as an adult. In McIntosh v. United States, 2009 WL 2003153, *11 (S.D. Fla. April 27, 2009), the Court stated:
Pursuant to U.S. Sentencing Guidelines, a movant is a career offender if (1) he is at least 18 years of age at the commission of the offense of conviction; (2) the offense is a felony crime of violence or controlled substance offense; and (3) he has at least two prior felony convictions for either a crime of violence or controlled substance offense. U.S.S.G. § 4Bl.1(a).
An adult or juvenile sentence imposed for an offense committed prior to the defendant's eighteenth birthday is counted only if imposed within five years of the defendant's commencement of the current offense. U.S.S.G. § 4A1.1, App. n. 3; see also, U.S.S.G. § 4A1.2(d).
Green was born October 17, 1981. The armed robbery offense occurred April 19, 1999. Green was 17 years, 6 months and 3 days old (including April 19, 1999) when he committed the armed robbery. The fact that he was within 6 months of reaching the age of 18 and the fact that he had an extensive criminal history may have been the factors that convinced the state court that he should be sentenced as an adult.
Armed robbery is a qualifying offense under USSG § 4A1.1(a).
Pursuant to USSG § 4B1.2(a)(1), the "elements clause" of section 4B1.2(a), the term "crime of violence" means any offense, punishable by a term of imprisonment battery exceeding one year, that "has an element the use, attempted use, or threatened use of physical force against the person of another." In Johnson, 130 S. Ct. at 1271, the Supreme Court considered the identical first prong of the ACCA's definition of a "violent felony," 18 U.S.C. § 924(e)(2)(B)(I), and held that "the phrase `physical force' means "violent force-that is, force capable of causing physical pain or injury to another person." The Johnson Court held that, because the Florida felony battery offense at issue in that case required "proof of only the slightest unwanted physical touch," such as a tap on the shoulder, the Florida offense of battery could not categorically be considered a violent felony under section 924(e)(2)(B)(I). Johnson, 130 S. Ct. at 1269-70, 1273-74. The Court also made clear, however, that violations of the same statute that did meet the definition of a violent felony under the ACCA could qualify.
"1. [a]ctually and intentionally touches or strikes another person against the will of the other," or "2. [i]ntentionally causes bodily harm to another person."
Resisting an Officer with Violence
On January 7, 2005, Green was convicted of resisting an officer with violence, case number CRC 04-10979CFANO-K. The Florida offense of resisting an officer with violence is not the same as the battery statute addressed by the Supreme Court in Johnson. The offense of resisting an officer with violence is defined as "knowingly and willfully resist[ing], obstruct[ing], or oppos[ing] any officer [in the execution of his duties] by offering or doing violence to the person of such officer." Fla. Stat. § 843.01. The Florida courts have held that "doing violence" requires that the defendant "use . . . physical force or violence" against an officer, Harris v. State, 5 So. 3d 750, 751 (Fla. 1st DCA), rev. denied, 16 So. 3d 132 (Fla. 2009), and have interpreted the term "offering to do violence" as an attempt to use force on an officer, see Jordan v. State, 438 So. 2d 825 (Fla. 1983), or a threat to use force, see Scullock v. State, 377 So. 2d 682, 683 (Fla. 1979) (defendant "threatened to inflict violent harm"). In United States v. Williams, 609 F.3d 1168 (11th Cir. 2010), the Eleventh Circuit stated that "Florida courts have noted that a conviction under [Fla. Stat. § 843.01] requires proof of conduct or attempted conduct involving threatened or actual physical force with Fla. Stat. § 775.083(1)(a) provides that a battery occurs when a person either violence." 609 F.3d at 1170 n. 1 (citing Walker v. State, 965 So. 2d 1281, 1283-84 (Fla. 2d DCA 2007)).
Because this statute differs so significantly in its terms from the Florida battery statute, which requires proof of only an actual or intentional touching, Florida courts have distinguished the offense of resisting an officer with violence from simple battery, holding that the two offenses "differ[] significantly" because "the force used in criminal battery need not be sufficient to injure." Harris, 5 So. 3d at 751 (quoting L.D. v. State, 355 So. 2d 816, 817 (Fla. 3d DCA 1978)); Walker, 965 So. 2d at 1283-84 (contrasting battery on a police officer, which does not necessarily require force, with resisting an officer with violence, which involves "offering to do violence or actually doing it"); Rawlings v. State, 976 So. 2d 1179, 1181 (Fla. 5th DCA 2008) (same).
The Florida crime of resisting an officer with violence requires proof of the use of physical force, and Florida courts uphold a charge of that offense only when the defendant has used violent force that is capable of causing physical pain or injury to another person. See, e.g., Carter v. State, 6 So. 3d 106, 106-07 (Fla. 4th DCA 2009) (defendant struck officer multiple times with his elbows, while officer attempted to pull him off of a fence), rev. dismissed, 13 So. 3d 1056 (Fla. 2009); State v. Young, 936 So. 2d 725, 728 (Fla. 1st DCA 2006) (evidence sufficient where defendant pushed officer hard enough to cause him to step back); Wright v. State, 681 So. 2d 852, 853 (Fla. 5th DCA 852 1996) (defendant kicked at and attempted to strike officers); State v. Davis, 652 So. 2d 942, 943 (Fla. 5th DCA 1995) (defendant "pulled and struggled to free himself, and struck at the Deputy with his fist"). For those offenses that involve only a threat to do violence, "the Florida state courts have interpreted the statute to require that the offender has the capacity to follow through on the threat to sustain a conviction." Pedro-Domingo v. United States Att'y Gen., 367 F. App'x 112, 115 (11th Cir. 2010) (citing Kirkland v. State, 647 So. 2d 142, 143-44 (Fla. 1st DCA 1994) (citing, in turn, Scullock v. State, 377 So. 2d 682, 683 (Fla. 1979)).
Recently, the Eleventh Circuit Court of Appeals held in United States v. Hayes, 2010 WL 5122587, at *1 (11th Cir. Dec. 16, 2010), that the Florida crime of resisting an officer with violence is a violent felony pursuant to the "residual clause" of the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), which is identical to the "residual clause" of the career-offender guideline. The crime also falls under the "elements clause" of the career-offender guideline for the reasons discussed herein.
Furthermore, resisting an officer with violence is not the type of offense that a person might commit by accidentally or negligently using physical force. See Begay v. United States, 553 U.S. 137, 142-43, 128 S. Ct. 1581, 1584-85 (2008) (interpreting the ACCA's residual clause to apply to offenses that "typically involve purposeful, violent, and aggressive conduct"); Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S. Ct. 377, 382 (2004) (interpreting the requirement in 8 U.S.C. § 16(a) that a "crime of violence" must involve "the use, attempted use, or threatened use of physical force" to "suggest[] a higher degree of intent than negligent or merely accidental conduct"). Florida law defines resisting an officer with violence as "knowingly and willfully resist[ing], obstruct[ing], or oppos[ing] any officer [in the execution of his duties] by offering or doing violence to the person of such officer." Fla. Stat. § 843.01. The Florida Supreme Court has construed the offense in a manner that strongly suggests that the words "knowingly and willfully" modify the entire course of conduct described in the statute. See Polite v. State, 973 So. 2d 1107, 1112 (Fla. 2007) (holding that knowledge of the victim's status as an officer was an element of the offense, and rejecting the argument that "the adverbs knowingly and willfully only modify the verbs `resists, obstructs, or opposes' rather than the entire phrase").
Frey v. State, 708 So. 2d 918, 920 (Fla. 1998), held that resisting an officer with violence is a general intent crime but did not suggest that negligent or accidental force could serve as the basis for a conviction.
No Florida court has held in a published opinion that the use of accidental or negligent force is sufficient to support a conviction for resisting an officer with violence. To the contrary, Florida decisions indicate that the offense requires the intentional use of force. See Berg v. State, 769 So. 2d 511, 512 (Fla. 5th DCA. 2000) (rejecting defendant's argument that there was "insufficient evidence of an intent to do violence," on the ground that evidence that defendant had kicked the officer after telling the officer to let go of him was sufficient evidence of "willful resistance" rather than accidental force); Miller v. State, 667 So. 2d 325, 328 (Fla. 1st DCA 1995) (assuming without discussion that intentional violence is an element of resisting an officer with violence, and holding that prosecution could introduce similar-act evidence to rebut defense's theory that defendant had struck an officer unintentionally, in reaction to being bitten by a dog); cf. United States v. Malloy, Nos. 09-2618, 09-2619, 2010 WL 3061922, at *4-5 (8th Cir. Aug. 6, 2010) (published) (Iowa offense of resisting an officer in the performance of his duty with the infliction of bodily or other serious injury constitutes a crime of violence despite the defendant's contention that an injury could occur without physical force against another person; "[W]e find it `difficult, if not impossible, to imagine how the charged conduct could be carried out without actually using physical force against the person of another.'").
In Pedro-Domingo v. United States Attorney General, 367 Fed. App'x 112, 115 (11th Cir. 2010), the Court noted that a defendant who acts negligently or accidentally is not guilty of resisting an officer with violence. In support of that conclusion, the court noted that, "[w]hile it is conceivable that a person could accidentally use force against an officer while intentionally impeding his or her official duties (for example, by being shoved or stumbling into an officer while refusing to submit to a legal search), we can find no examples of convictions under the statute in such circumstances." Id.
Green's prior conviction for resisting an officer with violence requires violent force, and thus, it is categorically a "crime of violence" under Johnson's construction of that term for purposes of the ACCA and the U.S. Sentencing Guidelines. See 130 S. Ct. at 1271.
Battery on a Law Enforcement Officer
Green was also convicted of battery on a law enforcement officer in the same prior case, case number CRC 04-10979CFANO-K. The facts underlying this conviction establish it as a crime of violence. At Green's sentencing for the instant offense of being a felon in possession, the Court adopted the undisputed facts and application of the guidelines as stated in the PSR. The PSR's recitation of facts underlying Green's conviction for battery on a law enforcement officer clearly demonstrate sufficient evidence of the violent elements that led to this prior conviction. Those facts include:
According to records contained in the court file, on June 25, 2004, at approximately 3:08 p.m., SPPD officers were attempting to arrest Green for the charge noted in Count Three when Green elbowed and shoved one of the officers in the chest, elbowed the other officer in the face, and attempted to flee from being arrested.
Driving While License Suspended or Revoked.
PSR at ¶ 49. These facts establish the violent nature of this prior conviction. See Attachment to this Order for a copy of the state charging documents and judgment in this case. These are Shepard-approved documents. See Shepard v. United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005) (limiting the type of documents on which the court may rely in determining whether a prior conviction qualifies as a violent felony under the ACCA to the charging document, jury instructions, plea agreement, change-of-plea transcript, and comparable judicial documents).
The Eleventh Circuit has held that the definition of a "crime of violence" under 8 the Sentencing Guidelines and a "violent felony" under the ACCA are "virtually identical" and may be used interchangeably. United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008); Gilbert v. United States, 609 F.3d 1159, 1161 n. 3 (11th Cir. 2010).
Green's contention that the Supreme Court's decision in Johnson compels the conclusion that his prior Florida conviction for battery on a law enforcement officer may no longer be considered a crime of violence, and thus may no longer be a qualifying predicate "crime of violence" conviction for enhancement under USSG § 2K2.1, is mistaken. In Johnson, the Supreme Court considered only the first clause of the ACCA's definition of a "violent felony," which requires that the offense has "as an element the use, attempted use, or threatened use of physical force against the person of another," 18 U.S.C. § 924(e)(2)(B)(I), and held that "the phrase `physical force' means `violent force — that is, force capable of causing physical pain or injury to another person." 130 S. Ct. at 1271. Because the Florida felony battery offense at issue there, and here, required "proof of only the slightest unwanted physical touch," such as a tap on the shoulder, the Supreme Court concluded that the offense could not categorically be considered a "violent felony" under Section 924(e)(2)(B)(I). Id. at 1269-1270, 1273-1274.
Contrary to Green's assertions in his petition, the Johnson court did not hold that the Florida offense of battery on a law enforcement could never be considered a "crime of violence." Instead, as noted above, because the statute provided for violent and non-violent means by which the offense may be committed, it was not categorically a "crime of violence." Also, in United States v. Williams, 609 F.3d 1168 (11th Cir. 2010), the Eleventh Circuit determined that a conviction in Florida of battery on a law enforcement officer, standing alone, does not satisfy the career offender elements clause. It did not consider, however, the residual clause of the ACCA and the career offender guideline definition, which provide that a crime is a "crime of violence" if it presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii); USSG § 4B1.2(a)(2).
In this case, the facts adopted at the sentencing hearing as related in the PSR reflect that the offense committed by Green involved violence and caused physical pain and/or injury to the officer. When Green "elbowed and shoved" one officer in the chest, and "elbowed the other officer in the face" during his attempt to flee, he committed a violent felony in that he used physical force against two individuals. Because Green did not object to this recitation of facts underlying his prior felony conviction, this violation of Florida's battery on a law enforcement officer undisputedly contains acts of violence and qualifies as a prior crime of violence for purposes of the sentencing guidelines.
Green cannot demonstrate that the holding in Johnson establishes that he has been convicted for a nonexistent offense or, in this case, that he is "actually innocent" of the enhancement he received under USSG § 2K2.1. The nature of the offenses and the facts of the actual incident clearly establish that either his conviction for resisting an officer with violence or battery on law enforcement officer was properly considered to be a crime of violence and used to enhance Green's base offense level and ultimately his sentence under the Sentencing Guidelines.
In sum, for the reasons stated above, Green has failed to demonstrate that the Court lacked jurisdiction to enhance his sentence under USSG § 2K2.1 (Ground One); he is actually innocent of the enhanced sentence (Ground Two); because of this enhancement, his rights to due process were violated (Ground Three); his enhanced sentence must be vacated to prevent a miscarriage of justice (Ground Four); and his counsel was ineffective "in entering an appeal waiver that would not cover any claim argued in Grounds One through Four, and waiver was unknowingly and involuntarily entered" (Ground Five).
Accordingly, the Court orders:
That Green's motion to vacate (Doc. cv-1; cr-35) is denied. The Clerk is directed to enter judgment against Green and to close this case.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Defendant is not entitled to a certificate of appealability. A prisoner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a certificate of appealability (COA). Id. "A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2). To make such a showing, Defendant "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that "the issues presented were `adequate to deserve encouragement to proceed further,'" Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Defendant has not made the requisite showing in these circumstances. Finally, because Defendant is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.
ORDERED at Tampa, Florida, on January 28, 2011.
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