United States District Court, S.D. Georgia, Savannah Division
WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT
the Court is the Magistrate Judge's Report and
Recommendation (Doc. 10), to which objections have been
filed. After a careful de novo review of the record, the
Court does not concur with the entire report and
recommendation. Accordingly, the report and recommendation is
ADOPTED IN PART and REJECTED IN PART. The Court adopts the
Report and Recommendation as its opinion in this case with
the exception of the Magistrate Judge's conclusion that
Petitioner's two Georgia convictions for robbery by
intimidation count as separate predicate offenses under the
Armed Career Criminal Act ("ACCA"). This matter is
REFERRED back to the Magistrate Judge with instructions to
appoint counsel for Petitioner and conduct an evidentiary
hearing regarding whether Petitioner's two robbery by
intimidation convictions occurred at the same time. The Court
leaves for the Magistrate Judge to decide in the first
instance whether Petitioner should be permitted to recast his
petition as alleging ineffective assistance based on
counsel's failure to object to the PSR at sentencing.
a two-day trial in federal court, a jury found Petitioner
guilty on October 26, 2005 of one count of possession of a
firearm by a convicted felon. (CR405-139, Doc. 41.)
Petitioner's Presentence Investigation Report
("PSR") placed him in a criminal history category
of VI with an offense level of 33. The offense level was
based on Petitioner qualifying as an armed career criminal
under the ACCA, 18 U.S.C. § 924(e), due to four prior
felony convictions: one South Carolina conviction for
possession with intent to distribute marijuana, one Georgia
conviction for armed robbery, and two Georgia convictions for
robbery by intimidation. It is these last two convictions for
robbery by intimidation that are at issue in this case.
sentencing, Petitioner did not object to the robbery by
intimidation convictions being counted as two separate
offenses under the ACCA. Applying the armed career
enhancement, Petitioner's guideline range was 235 to 293
months of imprisonment. Absent the enhancement, Petitioner
faced a maximum sentence of 120 months of imprisonment.
Ultimately, Petitioner received a sentence at the extreme
upper-end of the guidelines: 293 months. (CR405-139, Doc. 46
at 2.) Petitioner unsuccessfully appealed the sufficiency of
the evidence used to support his conviction, but did not
appeal the sentencing court treating the two robbery by
intimidation convictions as separate predicate offenses under
30, 2010, Petitioner filed a Motion to Correct Sentence.
(CR405-139, Doc. 55.) In that motion, Petitioner argued that
his South Carolina marijuana conviction was not a predicate
offense under the ACCA because the conviction carried a
maximum sentence of five years, well below the ten year
sentence required under the ACCA. (Id. at 2.) Also,
Petitioner contended that the PSR incorrectly concluded that
he committed the two robberies by intimidation on separate
days. (Id.) Instead, Petitioner claimed that he
committed the two crimes on the same date-October 17, 1992.
(Ia\) The sentencing judge denied Petitioner's motion.
(Id., Doc. 56.)
20, 2016, Petitioner filed a habeas petition pursuant to 28
U.S.C. § 2255. (Doc. 1.) In his petition, Petitioner
argues that he no longer qualifies as an armed career
criminal based on the Supreme Court's ruling in
Johnson v. United States, 576 U.S. ___, 135 S.Ct.
2551 (2015). (Id., Attach. 1 at 7-22.) With respect
to the robbery by intimidation convictions, Petitioner
maintains that he committed these two offenses on the same
day and at the same time. (Id. at 16-21.) As a
result, Petitioner concludes that these two convictions
should only be counted as one predicate offense under the
ACCA. (Id.) Because the conviction for possession
with intent to distribute marijuana is also not a predicate
offense, Petitioner believes that he has only two predicate
offenses and was erroneously sentenced as an armed career
Report and Recommendation, the Magistrate Judge agreed that
Petitioner's conviction for possession of marijuana with
the intent to distribute does not qualify as a predicate
offense. (Doc. 10 at 5.) However, the Magistrate Judge
concluded that Petitioner's armed robbery and two robbery
by intimidation convictions all counted as separate predicate
offenses under the elements clause of the ACCA. (Id.
at 6-13.) As permitted under the Supreme Court's decision
in Shepard v. United States, 544 U.S. 13, 26 (2005),
the Magistrate Judge reviewed the available class of
documents associated with the robbery by intimidation
convictions-the Superior Court of Chatham County indictment,
plea colloquy, and PSR. (Doc. 10 at 12 n.8.) Based on the
indictment and plea colloquy, the Magistrate Judge determined
that these two convictions were committed on separate dates.
(Id.) The Magistrate Judge also noted that
Petitioner did not object at sentencing to the PSR's
conclusion that the offenses occurred on separate dates,
resulting in Petitioner procedurally defaulting any argument
to the contrary. (Id.) Finding that Petitioner still
had three predicate offenses, the Magistrate Judge
recommended that the habeas petition be denied. (Id.
objections to the Report and Recommendation, Petitioner again
argues that the two robbery by intimidation convictions were
committed at the same time. (Doc. 13 at 11-17.) Petitioner
maintains that, at the very least, the Shepard
documents fail to establish that it is "more likely than
not that the crimes were committed successively rather than
simultaneously." (Id. at 11.) As a result,
those two offenses should only count as one predicate offense
under the ACCA. (Id.) Therefore, Petitioner reasons
he is not subject to the ACCA's sentence enhancement
because he has only acquired two predicate
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") permits a federal prisoner to request
that his sentencing court correct a sentence term that
exceeds the maximum authorized by law. 28 U.S.C. §
2255(a). The petitioner bears the burden of establishing the
need for an evidentiary hearing. Chavez v. Sec'y Fla.
Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011)
(quoting Birt v. Montgomery, 725 F.2d 587, 591 (11th
Cir. 1984)). A petitioner is entitled to an evidentiary
hearing where it " 'could enable an applicant to
prove the petition's factual allegations, which, if true,
would entitle the applicant to federal habeas relief.'
" Id., (quoting Schriro v. Landrigan,
550 U.S. 465, 474 (2007)).
ACCA provides for a significantly enhanced sentence if a
defendant has "three previous convictions . . . for a
violent felony or a serious drug offense, or both, committed
on occasions different from one another." 18 U.S.C.
§ 924(e)(1). The Eleventh Circuit has explained that
crimes must be " 'temporally distinct' " to
be considered separate offenses under the ACCA. United
States v. Sneed, 600 F.3d 1326, 1329 (11th Cir. 1998)
(emphasis omitted) (quoting United States v.
Sweeting, 933 F.2d 962, 967 (11th Cir. 1991)). For the
§ 924(e)(1) enhancement to apply, the "three
previous convictions [must have] arose out of  separate and
distinct 'criminal episode[s].' " Id.
(quoting United States v. Pope, 132 F.3d 684, 689
(11th Cir. 1998)).
case, Petitioner contends that his robbery by intimidation
convictions were incorrectly counted as two predicate
offenses under the ACCA. In making his recommendation, the
Magistrate Judge looked at the Shepard approved
documents, consisting of the indictment, plea colloquy, and
PSR. After reviewing these documents, the Magistrate Judge
concluded that the "two robberies were properly
considered separate occasions for enhancement purposes."
(Doc. 10 at 12 n.8.) For its part, this Court's
assessment of this case does not lead it to the same
conclusion. To be fair, the Court can find little fault in
either the Magistrate Judge's reasoning or his ultimate
conclusion. As evidenced below, however, reasonable minds
can, and in this case do, differ on their assessment of the
record in this case.
PETITIONER'S INDICTMENT IN THE SUPERIOR COURT ...