Haugabook v. United States

6 Citing cases

  1. Casado v. Flournoy

    CIVIL ACTION NO.: 2:15-cv-16 (S.D. Ga. Mar. 8, 2016)

    The Eleventh Circuit "agree[s] that Johnson announced a new substantive rule of constitutional law," but "reject[s] the notion that the Supreme Court has held that the new rule should be applied retroactively on collateral review." In re Rivero, 797 F.3d 986, 989 (11th Cir. 2015) (denying leave to file a second or successive motion to vacate, set aside, or correct sentence based on the Johnson decision and expressly rejecting the Seventh Circuit Court of Appeals' decision in Price v. United States, 795 F.3d 731 (7th Cir. 2015), applying Johnson retroactively to cases on collateral review); see United States v. Braun, No. 13-15013, 2015 WL 5201729 (11th Cir. Sept. 8, 2015) (applying Johnson in the context of a direct appeal); United States v. Hill, No. 14-12294, 2015 WL 5023791 (11th Cir. Aug. 26, 2015) (same); and Haugabrook v. United States, Civ. Case No. 815-cv-1756-T-24TBM, Cr. Case No. 8:08-cr-254-T-24TBM, 2015 WL 4605750 (M.D. Fla. July 30, 2015) (declining to extend Johnson to a Section 2255 motion). The ACCA "defines 'violent felony' as follows: '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.'

  2. McClouden v. United States

    CIVIL ACTION NO.: CV615-76 (S.D. Ga. Feb. 25, 2016)   Cited 5 times

    ect[s] the notion that the Supreme Court has held that the new rule should be applied retroactively on collateral review." In re Rivero, 797 F.3d 986 (11th Cir. 2015) (denying leave to file a second or successive motion to vacate, set aside, or correct sentence based on the Johnson decision and expressly rejecting the Seventh Circuit Court of Appeals' decision in Price v. United States, 795 F.3d 731 (7th Cir. 2015), applying Johnson retroactively to cases on collateral review); see In re Franks, No. 15-15456-G, 2016 WL 80551, at *4 (11th Cir. Jan. 6, 2016) (recognizing and reaffirming that the Supreme Court did not apply its Johnson decision retroactively to cases on collateral review); see also United States v. Braun, No. 13-15013, 2015 WL 5201729 (11th Cir. Sept. 8, 2015) (applying Johnson in the context of a direct appeal); United States v. Hill, No. 14-12294, 2015 WL 5023791 (11th Cir. Aug. 26, 2015) (same); and Haugabrook v. United States, Civ. Case No. 815-cv-1756-T-24TBM, Cr. Case No. 8:08-cr-254-T-24TBM, 2015 WL 4605750 (M.D. Fla. July 30, 2015) (declining to extend Johnson to a Section 2255 motion).

  3. Nixon v. Flournoy

    CIVIL ACTION NO.: 2:15-cv-86 (S.D. Ga. Jan. 29, 2016)

    The Eleventh Circuit "agree[s] that Johnson announced a new substantive rule of constitutional law," but "reject[s] the notion that the Supreme Court has held that the new rule should be applied retroactively on collateral review." In re Rivero, No. 15-13089-C, 2015 WL 4747749, at *2 (11th Cir. Aug. 12, 2015) (denying leave to file a second or successive motion to vacate, set aside, or correct sentence based on the Johnson decision and expressly rejecting the Seventh Circuit Court of Appeals' decision in Price v. United States, No. 15-2427, 2015 WL 4621024 (7th Cir. Aug. 4, 2015), applying Johnson retroactively to cases on collateral review); see United States v. Braun, No. 13-15013, 2015 WL 5201729 (11th Cir. Sept. 8, 2015) (applying Johnson in the context of a direct appeal); United States v. Hill, No. 14-12294, 2015 WL 5023791 (11th Cir. Aug. 26, 2015) (same); and Haugabrook v. United States, Civ. Case No. 815-cv-1756-T-24TBM, Cr. Case No. 8:08-cr-254-T-24TBM, 2015 WL 4605750 (M.D. Fla. July 30, 2015) (declining to extend Johnson to a Section 2255 motion). The ACCA "defines 'violent felony' as follows: '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.'

  4. Kelly v. Flournoy

    CIVIL ACTION NO.: 2:15-cv-58 (S.D. Ga. Jan. 8, 2016)   Cited 1 times

    The Eleventh Circuit "agree[s] that Johnson announced a new substantive rule of constitutional law," but "reject[s] the notion that the Supreme Court has held that the new rule should be applied retroactively on collateral review." In re Rivero, 797 F.3d 986, 990-91 (11th Cir. 2015) (denying leave to file a second or successive motion to vacate, set aside, or correct sentence based on the Johnson decision and expressly rejecting the Seventh Circuit Court of Appeals' decision in Price v. United States, No. 15-2427, 2015 WL 4621024 (7th Cir. Aug. 4, 2015), applying Johnson retroactively to cases on collateral review); see United States v. Braun, No. 13-15013, 2015 WL 5201729 (11th Cir. Sept. 8, 2015) (applying Johnson in the context of a direct appeal); United States v. Hill, No. 14-12294, 2015 WL 5023791 (11th Cir. Aug. 26, 2015) (same); and Haugabrook v. United States, Civ. Case No. 815-cv-1756-T-24TBM, Cr. Case No. 8:08-cr-254-T-24TBM, 2015 WL 4605750 (M.D. Fla. July 30, 2015) (declining to extend Johnson to a Section 2255 motion). The ACCA "defines 'violent felony' as follows: '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.'

  5. Bohannon v. United States

    No. 13-1255 (W.D. Tenn. Oct. 15, 2015)   Cited 4 times
    Declining to apply Descamps to a motion for § 2255 relief

    See United States v. Castle, ___ F. App'x ___, 2015 WL 5103093, at *5 (6th Cir. Aug. 31, 2015) ("Post-Johnson, an individual cannot be considered an 'armed career criminal' due to past 'violent felony' convictions unless the qualifying crimes involved an element of force; were burglary, arson, or extortion; or involved the use of an explosive."); Simpson v. Cross, Case No. 15-cv-817-DRH, 2015 WL 4761148, at *2 (S.D. Ill. Aug. 12, 2015) ("Petitioner is reminded that Johnson did not invalidate the ACCA in its entirety. Prior violent felonies that were properly determined at sentencing to fall . . . into the category of one of the enumerated offenses [including burglary] remain valid predicate offenses for purposes of sentencing enhancements under the ACCA."); Haugabook v. United States, Civ. Case No. 8:15-cv-1756-T-24TBM, 2015 WL 4605750, at *3 (M.D. Fla. July 30, 2015) (where habeas petitioner's underlying conviction was burglary and, therefore, did not come under the residual clause, he could not rely on Johnson to cure the untimeliness of his petition), app. filed (11th Cir. Sept. 1, 2015); Williamson v. United States, No. 7:13-CV-194-FL, 2015 WL 4130863, at *5 & n.3 (E.D.N.C. July 8, 2015) (Johnson had no effect on the outcome of § 2255 petition challenging classification of state conviction as an ACCA burglary predicate offense). Bohannon submits that, even if his § 2255 claim is untimely, relief is appropriate in the form of a writ of audita querela, which is a "common law writ constituting the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment on account of some matter of defense or discharge arising since its rendition and which could not be taken advantage of otherwise."

  6. United States v. Stanton

    Case No.: 3:06cr11/LAC/EMT (N.D. Fla. Aug. 26, 2015)

    The Supreme Court has not declared its decision in Johnson to be retroactively applicable on collateral review, nor has the Eleventh Circuit. SeeIn re Rivero, No. 15-13089-C, 2015 WL 4747749 (11th Cir. Aug. 12, 2015) (denying application for leave to file a second or successive § 2255 motion pursuant to 2255(h) based on Johnson); see also, e.g., Haugabook v. United States, Nos. 8:15-cv-1756-T-24TBM, 8:08-cr-254-T-24TBM, 2015 WL 4605750 (M.D. Fla. Jul. 30, 2015) (denying § 2255 motion based on Johnson as successive, untimely, and without merit); but seePrice v. United States, No. 15-2427, 2015 WL 4621024 (7th Cir. 2015) (authorizing district court to entertain a second or successive § 2255 motion based on Johnson). Therefore, at this juncture the Johnson decision does not appear to apply retroactively under either 28 U.S.C. § 2255(f)(3) or (h).