Robinson v. United States
Robinson v. United States
Opinion of the Court
This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, filed pursuant to
I. BACKGROUND
On May 28, 2008, a jury convicted Petitioner Larry Robinson ("Petitioner") of the crime of possession of a firearm by a convicted felon in violation of
[A]ny crime punishable by imprisonment for a term exceeding one year ... that-
i. has as an element the use, attempted use, or threatened use of physical force against the person of another; or
ii. is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ...
At his sentencing hearing on October 16, 2008, the Court found that Petitioner qualified for an enhanced sentence under the ACCA due, in part, to his two prior convictions for possession of cocaine with the intent to distribute, his prior conviction for aggravated assault and burglary, and his prior conviction for burglary.
On June 26, 2015, the United States Supreme Court held in Johnson v. United States, 576 U.S. ----,
On August 25, 2016, Petitioner filed this Johnson-related § 2255 Motion.
*1333Specifically, Petitioner argues that Johnson invalidates his ACCA sentence because when he was sentenced in 2008, his Georgia convictions for aggravated assault and burglary qualified as violent felonies under the residual clause of the ACCA. Petitioner also argues that his aggravated assault conviction is not a violent felony under the enumerated offenses clause because assault is not included in that list of crimes. And finally, Petitioner argues that his convictions for aggravated assault and burglary do not qualify as violent felonies under the elements clause. Consequently, Petitioner asserts that he is no longer, by law, an armed career criminal because his convictions for aggravated assault and burglary no longer qualify as ACCA violent felonies.
II. DISCUSSION
To prove a Johnson claim, Petitioner must establish that his sentence enhancement under the ACCA "[t]urned on the validity of the residual clause." In re Thomas,
(1) if the sentencing court relied solely on the residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause (neither of which were called into question by Johnson ) to qualify a prior conviction as a violent felony, and (2) if there were not at least three other prior convictions that could have qualified under either of those two clauses as a violent felony, or as a serious drug offense.
In Beeman
A § 2255 petitioner can prove that the sentencing court relied on the residual clause in two ways. First, a petitioner can point to "direct evidence: comments or findings by the sentencing judge indicating that the residual clause was relied on and was essential to the application of the ACCA in that case."
sometimes be sufficient circumstantial evidence to show the specific basis of the enhancement. For example, there could be statements in the PSR [Presentence Investigation Report], which were not objected to, recommending that the enumerated clause and the elements clause did not apply to the prior conviction in question and did not apply to the other prior convictions that could have served to justify application of the ACCA. Or the sentencing record may contain concessions by the prosecutor that those two other clauses do not apply to the conviction in question or others.
In his § 2255 Motion, Petitioner states, in a conclusory fashion, that the residual clause was a "potential basis" for his enhanced sentence under the ACCA. Doc. No. [111], p. 2. Yet there is nothing in the record that either directly or indirectly supports this contention. Rather, Petitioner only asserts in general terms that the residual clause has historically been used as a "default home" for many state statutes-including the Georgia aggravated assault statute and burglary state-under the ACCA. Id. at p. 6. These general observations, however, are not enough to satisfy Petitioner's burden of establishing that he, in fact, was sentenced as an armed career criminal solely because of the residual clause. See Beeman,
*1335Moreover, the Court also finds that Petitioner is not entitled to a certificate of appealability. A petitioner seeking a motion to vacate has no absolute entitlement to appeal a district court's denial of his motion. See
III. CONCLUSION
For the reasons discussed above, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to
IT IS SO ORDERED this 26th day of April, 2019.
All citations are to the docket in 1:08-cr-0005, and all page numbers are those imprinted by the Court's docketing software.
The sentencing transcript indicates that the Court relied on the Presentence Investigation Report ("PSR"), prepared by the United States Probation Office, in determining that Petitioner was an armed career criminal and thus subject to an enhanced sentence under the ACCA. See Doc. No. [59]. The PSR explained that Petitioner was an armed career criminal because he had at least three prior convictions for a " 'violent felony' or 'serious drug offense', including, but not limited to:" aggravated assault and burglary, burglary, and possession of cocaine with the intent to distribute. See Doc. No. [89], ¶ 61.
Petitioner's conviction was subsequently affirmed by the Eleventh Circuit. See United States v. Robinson,
Petitioner filed his first § 2255 motion on April 8, 2011, which this Court later denied. See Doc. Nos. [71]; [85]. For this reason, Petitioner filed an Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence in the Eleventh Circuit. On July 18, 2016, the Eleventh Circuit granted the application and permitted Petitioner to challenge his ACCA sentence on the ground that in light of Johnson, his burglary and aggravated assault convictions may no longer qualify as "violent felonies." Doc. No. [107]. This Court later gave Petitioner a deadline of August 25, 2016, to file his § 2255 Motion. See Docket Order of July 25, 2016.
Petitioner's prior drug offenses qualify as ACCA predicates because they are "serious drug offenses," as defined in
Petitioner's § 2255 Motion exceeds the page limitations set forth in the Local Rules. See LR 7.1D, NDGa ("Absent prior permission of the court, briefs filed in support of a motion or in response to a motion are limited in length to twenty-five (25) pages."). The Court will accept this motion as filed but instructs counsel to seek and obtain the Court's permission before filing briefs and motions that exceed the page limits in the Local Rules. Including a request to exceed the page limits in the footnotes of a brief that exceeds the page limits is not, in the Court's view, the proper way to request permission to exceed the page limits. For all future filings, counsel must file a motion to exceed the page limits and wait until the Court grants the motion before filing a brief that exceeds the page limits.
The Court finds that an evidentiary hearing is not necessary. See Futch v. Dugger,
The Eleventh Circuit decided Beeman on September 22, 2017, while Petitioner's § 2255 Motion was still pending. The Eleventh Circuit later denied the petition for rehearing en banc ,
Even without his burglary and aggravated assault convictions, Petitioner remains an armed career criminal with four prior convictions for "serious drug offenses"-possessing cocaine with the intent to distribute. Petitioner does not dispute that he has four prior convictions for serious drug offenses. Rather, he argues that the Court should disregard two of his prior serious drug offenses because the PSR "Chapter Four Enhancements" did not explicitly list those two prior convictions and the Court relied on only the predicates identified there. See Doc. No. [89], ¶ 61. Yet the PSR explained that Petitioner was an armed career criminal because he had at least three prior convictions for a violent felony or serious drug offense, "including, but not limited to ", aggravated assault and burglary, burglary, and possession of cocaine with the intent to distribute.
Reference
- Full Case Name
- Larry ROBINSON v. United States
- Status
- Published