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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13999
Non-Argument Calendar
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D.C. Docket Nos. 8:10-cv-00972-SCB-TBM,
8:08-cr-00289-SCB-TBM-1
JERRY JAMES MORRIS, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 16, 2013)
Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Appellant Jerry Morris, a federal prisoner, appeals the district court’s denial
of his motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C.
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§ 2255. Morris pled guilty to being a felon in possession of a firearm and had prior
Florida convictions for felony battery, aggravated battery, and selling cocaine.
Based upon his prior convictions, the district court concluded that Morris was
subject to the statutory-minimum penalty of 15 years’ imprisonment under the
Armed Career Criminal Act (“ACCA”) and imposed an equivalent sentence on
February 19, 2009. Morris did not appeal. He thereafter filed the instant motion to
vacate on April 12, 2010, claiming that his felony-battery conviction no longer
qualified as a violent felony under the ACCA pursuant to Johnson v. United States,
559 U.S. 133, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010), and thus, he was no longer
subject to the ACCA’s enhanced penalty. The district court, however, dismissed
Morris’s motion to vacate as untimely after concluding that Johnson has not been
retroactively applied to cases on collateral review.
The district court subsequently issued a certificate of appealability (“COA”)
and certified two issues: (1) whether Johnson applies retroactively on collateral
review so that Morris timely filed his motion to vacate; (2) and whether an
erroneous ACCA sentence violates due process. On appeal, Morris answers these
questions in the affirmative, and the government concedes Johnson’s retroactivity,
and that an erroneous ACCA sentence violates due process. Nonetheless, the
government argues that we need not address the constitutional issue because
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Morris was properly sentenced under the ACCA inasmuch as his felony-battery
conviction qualifies as a violent felony.
We review de novo questions of law related to a district court’s denial of a
motion to vacate. Rhode v. United States, 583 F.3d 1289, 1290 (11th Cir. 2009).
The scope of our review is limited by the issues specified in the COA. Id. at
1290-91. A prisoner who is in custody under a federal sentence may move the
district court to vacate, set aside, or correct his sentence if he claims the right to his
release upon the ground that his sentence was imposed in violation of the
constitution or federal law, the district court lacked jurisdiction to impose his
sentence, his sentence exceeded the maximum authorized by law, or his sentence is
otherwise subject to collateral attack. 28 U.S.C. § 2255(a).
A federal prisoner must file a motion to vacate within one year of the latest
of: (1) the date upon which the underlying judgment of conviction became final;
(2) the date upon which the impediment to making a motion created by the
government in violation of the constitution or federal law is removed, so long as
the prisoner was prevented from making a motion by the government; (3) the date
upon which “the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review;” or (4) the date upon which the facts
supporting the claim “could have been discovered through the exercise of due
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diligence.” Id. § 2255(f). A court other than the Supreme Court may determine
retroactivity under § 2255(f)(3), and, in deciding retroactivity, we apply the
Teague 1 rubric. Figuereo-Sanchez v. United States, 678 F.3d 1203, 1207 (11th
Cir. 2012), cert. denied, 81 U.S. L.W. 3092, (U.S. Feb. 25, 2013) (No. 12-164).
Under that rubric, we first decide whether the Supreme Court announced a new
rule in the decision in question. Id. If so, then we must “determine whether that
new rule satisfies an exception to the general prohibition against the retroactive
application of new rules on collateral review.” Id. at 1208. Teague established
two such exceptions: (1) “new rules that place certain kinds of primary conduct
beyond the reach of criminal law;” and (2) “decisions that announce ‘watershed
rules of criminal procedure.’” Id. (citing Teague, 489 U.S. at 311-12, 109 S. Ct. at
1076).
A defendant convicted of being a felon in possession of a firearm is
ordinarily subject to a maximum term of 10 years’ imprisonment. 18 U.S.C.
§ 924(a)(2). Under the ACCA, however, that same defendant is subject to a term
of 15 years’ to life imprisonment if he has 3 previous convictions for a violent
felony or a serious drug offense, or both, that were committed on occasions
different from one another. Id. § 924(e)(1). Thus, a defendant who is erroneously
sentenced under the ACCA is necessarily sentenced in excess of the statutory
1
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).
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maximum. See Gilbert v. United States, 640 F.3d 1293, 1319 n.20 (11th Cir. 2011)
(en banc), cert. denied, 132 S.Ct. 1001 (2012).
In Florida, a person commits a battery if he actually and intentionally
touches or strikes another person against that person’s will, or intentionally causes
bodily harm to another person. Fla. Stat. § 784.03(1)(a). This offense is
punishable by up to five years’ imprisonment if the offender has a prior battery
conviction. Id. § 775.082(3)(d); Fla. Stat. § 784.03(2).
The Supreme Court decided Johnson on March 2, 2010, and defined the
term “physical force” in the ACCA’s elements clause as meaning “violent force—
that is, force capable of causing physical pain or injury to another person.”
Johnson, 559 U.S. at , 130 S. Ct. at 1271. A Florida battery offense, however,
only requires the slightest intentional physical contact, and a defendant could
commit the offense through, for example, a non-consensual tap on the shoulder.
See id. at , 130 S. Ct. at 1269-70 (citation omitted). Accordingly, Johnson held
that a Florida battery offense under § 784.03 does not categorically meet the
elements clause’s physical force requirement, and, therefore, did not categorically
constitute a violent felony under the elements clause. See id. at , 130 S. Ct. at
1268-74.
We accept the government’s concessions that Johnson retroactively applies
on collateral review so that Morris timely filed his motion to vacate, and that an
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erroneous ACCA sentence violates due process. The district court did not decide
whether Morris’s felony-battery conviction constitutes a violent felony, and we
deem it appropriate that the district court decide that issue in the first instance.
Accordingly, after reviewing the record and reading the parties’ briefs, we vacate
the district court’s judgment and remand this case for a determination as to whether
Morris was properly sentenced under the ACCA.
VACATED AND REMANDED.
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