UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

JOHNNIE CHARLES GRIMSLEY, JR.,

Movant, Civil Case No. 8:21-cv-1254-MSS-CPT v. Crim. Case No. 8:17-cr-253-MSS-CPT

UNITED STATES OF AMERICA,

Respondent. _____________________________________/

O R D E R

Before the Court is Johnnie Charles Grimsley, Jr.’s motion for leave to amend his amended motion under

to add a claim under Bruen.1 (Civ. Doc. 24) In response, the United States moves to dismiss Grimsley’s motion for leave to amend. (Civ. Doc. 25) Grimsley filed a response to the United States’ motion to dismiss. (Civ. Doc. 27) For the reasons explained below, Grimsley may not amend his amended § 2255 motion to add a Bruen claim because such proposed amendment would be futile. I. Background Grimsley initiated this action under

to vacate his convictions for aiding and abetting the possession of a firearm by a convicted felon and aiding and abetting the possession of a firearm and ammunition by a convicted felon, in violation of

(g)(1) and 924(e). (Civ. Doc. 1; Crim. Doc. 1) A jury found

1 New York State Rifle & Pistol Assoc., Inc. v. Bruen,

,

(2022). Grimsley guilty of both crimes. (Crim. Doc. 144) Grimsley was sentenced as an armed career criminal to 120 months’ imprisonment. (Crim. Doc. 178) Grimsley appealed, and the Eleventh Circuit affirmed his convictions. United States v. Grimsley,

(11th Cir. 2020). Grimsley initiated this action on May 21, 2021, was permitted to amend his original § 2255 motion, and now proceeds on his amended motion under § 2255. (Civ. Doc. 19) He challenges his conviction on six grounds including claims of ineffective assistance of counsel, among other claims. The United States opposes the relief

Grimsley seeks in his amended § 2255 motion (Civ. Doc. 20), and Grimsley replied (Civ. Doc. 21). II. Discussion Grimsley now seeks to amend his amended § 2255 motion to add a claim that

his

(g) convictions violate the Second Amendment after New York State Rifle & Pistol Assoc., Inc. v. Bruen,

,

(2022), which holds that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.” (Civ. Doc. 24) Grimsley argues that “with the framework announced in Bruen, section 922(g)(1) violates [his] Second

Amendment right to keep and bear arms.” (Id. at 5) He further argues that Bruen abrogates United States v. Rozier,

(11th Cir. 2010), in which the Eleventh Circuit held that § 922(g)(1) does not violate the Second Amendment. The United States responds to Grimsley’s motion to amend by filing a motion to dismiss. (Civ. Doc. 25) The United States argues that Grimsley’s proposed Bruen claim is untimely, procedurally defaulted, and meritless.

Leave to amend should be freely given “if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief.” Hall v. United Ins. Co. of America,

, 1262–63 (11th Cir. 2004) (quoting Foman v. Davis,

(1962)). However, “a district court may properly deny leave to amend the

complaint under Rule 15(a) when such amendment would be futile.”

at 1262–63; see Harris v. United States,

, 852 (11th Cir. 2020)2 (affirming the denial of leave to amend a § 2255 motion to add new claims because “an amendment would have been futile”). Grimsley may not amend his amended § 2255 motion to add a Bruen claim

because such proposed claim would be futile. After the parties fully briefed the issue of whether Grimsley should be permitted to amend to add a Bruen claim, the Eleventh Circuit issued its decision in United States v. Dubois, __ F.4th __, No. 22-10829,

(11th Cir. Mar. 5, 2024), which squarely forecloses Grimsley’s proposed Bruen claim. In DuBois, the Eleventh Circuit explicitly rejected the argument Grimsley

intends to pursue with his proposed amendment. DuBois holds that the Eleventh Circuit’s prior precedent in United States v. Rozier,

(11th Cir. 2010), in

2 “Unpublished opinions are not considered binding precent, but they may be cited as persuasive authority.” 11th Cir. R. 36-2; see also United States v. Futrell,

(11th Cir. 2000) (same). which the circuit court upheld the constitutionality of § 922(g)(1), remains good law. See Dubois,

, at *5 (“Bruen did not abrogate Rozier.”). Here, Grimsley stipulated that he “had previously been convicted of . . . a felony

offense” and that his right to possess firearms and ammunition had not been restored. (Crim. Doc. 145-7) Consequently, because § 922(g)(1) constitutionally prohibited Grimsley, a felon whose right to possess firearms and ammunition had not been restored, from possessing firearms and ammunition, his Bruen-based Second Amendment claim lacks merit. See Boatwright v. United States, No. 8:23-cv-2910-MSS-

TGW,

, at *3–4 (M.D. Fla. Mar. 8, 2024) (relying on DuBois to hold that the petitioner’s Second Amendment claim lacked merit because § 922(g) constitutionally prohibited the petitioner, who was a felon, from possessing a firearm); United States v. Pierre, No. 23011604,

, at *1 (11th Cir. Mar. 12, 2024)

(relying on DuBois to affirm the defendant’s § 922(g) conviction because defendant’s Second Amendment argument lacked merit post-Bruen). As a result, Grimsley may not amend his amended § 2255 motion because his proposed Bruen claim would be futile. See Harris, 808 F. App’x at 852. III. Conclusion

Accordingly, because Grimsley seeks to amend his amended § 2255 motion with a futile claim, his motion for leave to amend his amended § 2255 motion (Civ. Doc. 24) must be DENIED. The United States’ motion to dismiss (Civ. Doc. 25) is DENIED AS MOOT. DONE AND ORDERED in Tampa, Florida, this 2nd day of April, 2024.

Ui - (/ {/ / f A MARYS. Lee UNITED STATES DISTRICT JUDGE