Opinion
CASE NO. 10-80289-CIV-MIDDLEBROOKS/WHITE, (02-80197-CR-MIDDLEBROOKS).
October 19, 2010
ORDER ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court upon the Report and Recommendation ("R R") of Magistrate Judge Patrick A. White in the above-styled case (DE 21), advising that Tavaris Davis ("Davis" or "Movant") be resentenced in light of the Supreme Court's recent decision in Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).
On February 25, 2003, pursuant to a plea agreement, Mr. Davis pled guilty to one count of illegally possessing a firearm after being convicted of a felony crime, in violation of 18 U.S.C. § 922(g)(1). (Cr-DE 26, 27). On June 9, 2003, the Court determined that three prior convictions for "violent felonies" on Mr. Davis' criminal record triggered a mandatory minimum sentence of fifteen years under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and sentenced Davis to fifteen years imprisonment and five years of supervised release. (Cr-DE 33). See 18 U.S.C. § 924(e)(1) (prescribing imprisonment of no less than fifteen years for persons committing certain qualifying crimes while having at least three previous convictions for violent felonies or serious drug offenses). At the time, Davis had two prior Florida convictions for felony battery on a police officer, and one conviction for carrying a concealed firearm. (PSI ¶¶ 18, 33, 44, 45). No direct appeal was taken.
The ACCA defines a "violent felony" as "any 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." 18 U.S.C. § 924(e)(2)(B).
Davis now moves to vacate his sentence pursuant to 28 U.S.C. § 2255 (DE 1), arguing that intervening developments in controlling law compel resentencing. In particular, he alleges that pursuant to the Supreme Court's recent decision in Johnson v. United States, ___ U.S. ___, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), he does not qualify as an "armed career criminal" under § 924(e), and that his sentence is therefore contrary to law. In Johnson, the Supreme Court held that the Florida offense of felony battery is not a "violent felony" under the ACCA because Florida felony battery can be perpetrated by slight, incidental contact while a "violent felony" within the meaning of the Act requires "violent force — i.e. force capable of causing physical pain or injury to another person." Johnson, 130 S.Ct. at 1271, 1274. Because Mr. Davis' felony battery convictions are not "violent felonies," Mr. Davis submits, he lacks the requisite predicate offenses to qualify as an "armed career criminal" subject to a fifteen year mandatory minimum sentence under the Act. See 18 U.S.C. § 924(e)(1).
Both the Government and Judge White agree that (a) Davis' motion to vacate was timely filed; (b) that the Johnson rule applies retroactively to Davis' case under Teague v. Lane, 489 U.S. 288, 311 (1989); and (c) that, applying Johnson, Mr. Davis' prior felony battery offenses do not constitute "violent felonies," and therefore the fifteen year mandatory minimum sentence applied to "armed career criminals" with three predicate violent felonies or serious drug offenses is inappropriate here. Moreover, the Government expressly disclaims any procedural default under Frady v. United States, 456 U.S. 152 (1982).
Based on this Court's review of Mr. Davis' Motion (DE 1) and Memorandum in Support (DE 11), the Government's Response (DE 18), and Magistrate White's R R (DE 21), and an independent review of Mr. Davis' file, the Court agrees that Mr. Davis' motion under § 2255 is timely and that Johnson announced a new substantive rule retroactively applicable to cases on collateral review. See Gilbert v. United States, 609 F.3d 1159, 1161-62 1165 (11th Cir. 2010) (holding that a similar rule announced in Begay v. United States, 553 U.S. 137 (2008), limiting the scope of the ACCA's definition of "violent felony" to crimes "roughly similar, in kind as well as in degree of risk posed, to the examples [in the ACCA] themselves" constituted a new substantive rule retroactively applicable to cases on collateral review); Lamar v. United States, 2010 WL 3259500, at *5 (M.D. Fla. Aug. 18, 2010) (" Johnson appears to announce a new substantive rule because the decision narrowed the scope of the Armed Career Criminal Act by interpreting its terms, specifically the term "physical force."). The Court further agrees, that, in light of Johnson, Mr. Davis' prior felony battery convictions no longer qualify him as an armed career criminal under § 924(e), and that, consequently, Mr. Davis is now subject to "a punishment that the law cannot impose upon him" and should be resentenced. Schriro v. Summerlin, 542 U.S. 348, 352 (2004).
Accordingly, it is hereby
ORDERED AND ADJUDGED that United States Magistrate Judge White's Report and Recommendation (DE 21) is RATIFIED, ADOPTED, AND APPROVED in its entirety; and it is further
ORDERED AND ADJUDGED that Tavaris Davis' pro se Motion to Vacate (DE 1) is GRANTED, and Mr. Davis' sentence in Case No. 02-80197-Cr-Middlebrooks is VACATED. Resentencing shall be addressed by further Order.
DONE AND ORDERED in Chambers at West Palm Beach, Florida this 14 day of October, 2010.