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Green v. United States

United States District Court, S.D. Georgia, Savannah Division

June 22, 2017

JERRY ORENTHAL GREEN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          WILLIAM T. MOORE, JR. UNITED STATES DISTRICT COURT

         Before 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.

         BACKGROUND

         Following 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.[1] (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.

         At 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 the ACCA.

         On July 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.)

         On June 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 offender. (Id.)

         In his 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. at 13.)

         In his 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 offenses.[2] (Id.)

         ANALYSIS

         The 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)).

         The 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)).

         In this 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.

         I. PETITIONER'S INDICTMENT IN THE SUPERIOR COURT ...


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