Tony Edward Dixon v. United States , 588 F. App'x 918 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10958
Non-Argument Calendar
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D.C. Docket Nos. 3:11-cv-00720-TJC-JBT,
3:04-cr-00202-TJC-JBT-1
TONY EDWARD DIXON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 16, 2014)
Before JORDAN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Tony Edward Dixon, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate as time barred.
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The district court dismissed Dixon’s motion because it determined that the
Supreme Court’s decision in Johnson v. United States, 559 U.S. 133, 130 S. Ct.
1265 (2010), did not apply retroactively, and Dixon’s motion could have been
timely only if it did. Dixon argues that Johnson applies retroactively and that his
§ 2255 motion was timely filed within one year of that decision. He also contends
that, based on Johnson, he was erroneously sentenced as an armed career criminal.
The government agrees that Johnson is retroactive but argues that other reasons
support affirming. For the reasons that follow, we affirm the district court’s
dismissal of Dixon’s motion.
I.
Dixon pled guilty to one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g) and 924(e). The presentence investigation report
(“PSR”) indicated that the 15-year mandatory minimum set forth in 18 U.S.C.
§ 924(e)(1) applied to Dixon, due in part to a 1983 Florida conviction for
aggravated battery under Fla. Stat. § 784.045. In April 2005, the federal district
court sentenced Dixon to 180 months’ imprisonment, the minimum term under
§ 924(e)(1). Dixon appealed, and we affirmed on November 30, 2005, after
determining that the grounds for Dixon’s appeal were without merit. United States
v. Dixon, 158 F. App’x 202 (11th Cir. 2005).
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Over five years later, Dixon filed his initial § 2255 motion, raising one
claim. He asserted that the aggravated battery conviction should not have been
considered a “violent felony” under the Armed Career Criminal Act (“ACCA”),
§ 924(e), relying on the Supreme Court’s opinion in Johnson. Specifically, he
contended that the conviction was not a violent felony because he had pled guilty
to the lesser included offense of “culpable negligence.” Johnson was issued on
March 2, 2010.
Dixon signed and dated the § 2255 motion on February 3, 2011, and
declared under penalty of perjury that the motion was placed in the prison mailing
system on that date. The district court, however, did not receive a copy of the
motion until July 20, 2011. After obtaining from the district court clerk’s office a
copy of the envelope in which the motion was mailed, the government moved to
dismiss Dixon’s motion as untimely. According to the government, Dixon did not
tender the motion to prison officials for mailing until July 10, 2011, so his motion
was not timely filed within one year of Johnson. Dixon responded that he had not
attempted to manipulate the court by backdating the motion and that
correspondence between him and the clerk’s office showed that he had submitted
the motion earlier than the government suggests, though the motion may not have
been received by the court for unknown reasons.
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The district court, “assuming without deciding” that Dixon’s motion was
filed on February 3, 2011, nonetheless concluded that his motion was untimely
because Johnson did not announce a new rule that was retroactively applicable to
cases on collateral review. Upon determining that Johnson was not retroactively
applicable, the court reasoned that Johnson did not restart the time to file a § 2255
motion. Because Dixon did not file within one year of when his conviction
became final in February 2007, the court dismissed Dixon’s § 2255 motion as
untimely and denied a certificate of appealability (“COA”).
Dixon now brings this appeal. We granted a COA on the following issue:
“Whether the district court erred in finding that Dixon’s 28 U.S.C. § 2255 motion
to vacate was untimely filed?”
II.
We review de novo a district court’s determination that a § 2255 motion to
vacate is time barred. Drury v. United States, 507 F.3d 1295, 1296 (11th Cir.
2007). Our review of an unsuccessful § 2255 motion is limited to the issues
specified in the COA. McKay v. United States, 657 F.3d 1190, 1195 (11th Cir.
2011).
III.
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
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upon the ground that his sentence was imposed in violation of the Constitution or
federal law, that the district court lacked jurisdiction to impose his sentence, that
his sentence exceeded the maximum authorized by law, or that his sentence is
otherwise subject to collateral attack. 28 U.S.C. § 2255(a).
Dixon’s claim that he was erroneously sentenced under the ACCA is
cognizable in an initial § 2255 motion because, if true, his sentence exceeded the
maximum authorized by law. A defendant convicted of being a felon in possession
of a firearm, in violation of § 922(g), ordinarily is subject to a maximum term of
10 years’ imprisonment. 18 U.S.C. § 924(a)(2). Under the ACCA, however, the
same defendant is subject to a minimum term of fifteen years’ imprisonment if he
has three previous convictions for a violent felony or a serious drug offense, or
both. 18 U.S.C. § 924(e)(1).
Even with a qualifying claim, a federal prisoner must nonetheless file a
motion to vacate in a timely fashion. Typically, a federal prisoner has one year
from the date that his conviction became final to seek § 2255 relief in federal
district court. See 28 U.S.C. § 2255(f)(1). However, § 2255 grants an additional
one year for prisoners to file a motion to vacate from “the date on 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.” Id. § 2255(f)(3). A court other than the Supreme Court may
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determine retroactivity under § 2255(f)(3). Figuereo-Sanchez v. United States, 678
F.3d 1203, 1207 (11th Cir. 2012).
To determine whether a case is retroactively applicable, we have applied the
rubric developed in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). Under
Teague, we first ask whether the Supreme Court announced a new rule in the
decision in question. Figuereo-Sanchez, 678 F.3d at 1207. If so, we then ask
“whether that new rule satisfies an exception to the general prohibition against the
retroactive application of new rules on collateral review.” Id. at 1208. For a new
rule to apply retroactively, it must be “substantive” in that it “alters the range of
conduct or the class of persons that the law punishes,” or, if it is “procedural,” it
must be a “watershed rule[] of criminal procedure.” Schriro v. Summerlin, 542
U.S. 348, 351-53, 124 S. Ct. 2519 (2004) (quotations omitted); see Figuereo-
Sanchez, 678 F.3d at 1208.
Under the “elements clause” of the ACCA, the term “violent felony” means
any crime punishable by imprisonment for a term of more than one year that “has
as an element the use, attempted use, or threatened use of physical force against the
person of another.”1 18 U.S.C § 924(e)(2)(B)(i). In Johnson, the Court defined
the term “physical force” in that clause to mean “violent force—that is, force
1
Under the “residual clause,” the term “violent felony” also means any crime punishable
by imprisonment for a term of more than one year that “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. § 824(e)(2)(B)(ii).
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capable of causing physical pain or injury to another person.” 559 U.S. at 140, 130
S. Ct. 1265.
A Florida battery offense, however, requires only the slightest intentional
physical contact, and a defendant could commit the offense through, for example, a
non-consensual tap on the shoulder. See id., 559 U.S. at 138, 130 S. Ct. 1265(citation omitted). Accordingly, Johnson held that a Florida battery offense under
Fla. Stat. § 784.032 does not categorically meet the elements clause’s physical-
force requirement, and, therefore, does not categorically constitute a violent felony
under the elements clause. See id., 559 U.S. at 135-45, 130 S. Ct. 1265.
The Supreme Court, however, emphasized that, despite its holding, the
“modified categorical approach” remains a viable means of proving that the
defendant’s prior Florida battery conviction constituted a violent felony. 3 See id. at
144, 130 S. Ct. 1265. When a prior conviction is for violating a divisible statute
(setting out alternative ways that an offense can be committed), courts may apply
the “modified categorical approach” to determine which alternative formed the
basis of the defendant’s prior conviction. Johnson, 559 U.S. at 144, 130 S. Ct.
1265; see also Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). In this
2
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).
3
Moreover, Johnson did not address whether a Florida battery conviction constitutes a
violent felony under the ACCA’s residual clause. Rozier v. United States, 701 F.3d 681, 685
(11th Cir. 2012), cert. denied, 133 S. Ct. 1740 (2013).
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analysis, a court may consult a limited class of documents from the state trial
record, “including charging documents, plea agreements, transcripts of plea
colloquies, findings of fact and conclusions of law from a bench trial, and jury
instructions and verdict forms.” Johnson, 559 U.S. at 144, 130 S. Ct. 1265.
The parties agree that Johnson, decided by the Court on March 2, 2010,
recognized a new substantive rule that should be applied retroactively.
Furthermore, it appears that Johnson impacts the analysis of whether Dixon’s
aggravated battery conviction under Fla. Stat. § 784.045 qualifies as a violent
felony. 4 The statute is divisible in that it specifies alternative ways of committing
aggravated battery. Under § 784.045(1)(a), “A person commits aggravated battery
who, in committing battery: 1. Intentionally or knowingly causes great bodily
harm, permanent disability, or permanent disfigurement; or 2. Uses a deadly
weapon.” Under § 784.045(1)(b), however, a person can also commit aggravated
battery “if the person who was the victim of the battery was pregnant at the time of
the offense and the offender knew or should have known that the victim was
pregnant.”
In light of Johnson, a conviction for aggravated battery under § 784.045 is
not categorically a violent felony under the elements clause because, under §
4
Aggravated battery under § 784.045 is a second-degree felony with a maximum term of
imprisonment of fifteen years, see Fla. Stat. § 775.082, unless other enhancements apply, see,
e.g., Fla. Stat. §§ 775.084 and 775.087.
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784.045(1)(b), the offense can be committed by non-consensual intentional
touching of a victim who is pregnant. See Johnson, 559 U.S. at 137-45, 130 S. Ct.
1265; Small v. State, 889 So. 2d 862, 863-64 (Fla. Dist. Ct. App. 2004) (discussing
the elements of § 784.045(1)(b)). Nonetheless, though, it is clear that a conviction
under either prong of § 784.045(1)(a) constitutes a violent felony for the ACCA
because violent physical force is an element of the offense. Turner v. Warden
Coleman FCI (Medium), 709 F.3d 1328, 1341 (11th Cir.), cert. denied, 133 S. Ct.
2873 (2013).
Notwithstanding the limited scope of the COA, the government asks that we
affirm the district court on the ground that the circumstances indicated in the PSR
combined with Dixon’s admission at the plea colloquy show that he was convicted
of § 784.045(1)(a). See Rozier v. United States, 701 F.3d 681, 686 (11th Cir.
2012), cert. denied, 133 S. Ct. 1740 (2013) (“[W]hen determining whether an
offense is a violent felony (or crime of violence) under the modified categorical
approach, a district court can rely on the facts set forth in the [PSR] if they are
undisputed and thereby deemed admitted.”). The PSR described the offense,
committed when Dixon was eighteen years old, as follows: “Circumstances reflect
that on August 10, 1986, the defendant fired a handgun at his girlfriend and
another male individual. The male victim was shot on the hand.”
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While the information in the PSR alone is insufficient for us to affirm on
other grounds because it merely indicates that Dixon hypothetically could have
been convicted of aggravated battery on the male victim, the record here reveals
that, in support of a motion that Dixon filed seeking reconsideration, Dixon filed
the information and judgment in the state-court case where he was convicted of
violating § 784.045. This Court “may affirm the district court’s judgment on any
ground that appears in the record, whether or not that ground was relied upon or
even considered by the [district court].” Thomas v. Cooper Lighting, Inc., 506
F.3d 1361, 1364 (11th Cir. 2007). The state-court information conclusively
demonstrates that Dixon was charged with violating the violent-felony version of §
784.045 in that it charges Dixon with “unlawfully commit[ting] a battery upon
Dewayne Victor Smith, by actually and intentionally touching or striking the said .
. . Smith against his will and in committing the said battery . . . us[ing] a deadly
weapon, to-wit: a pistol . . . .” Moreover, the judgment in the Florida case reflects
that Dixon was convicted of “Count 1,” which is the charge described above.
Thus, based on these documents and the details set forth by the PSR, it is clear that
Dixon was convicted of committing an aggravated battery on the man present, not
on his girlfriend. Necessarily, then, he was convicted under §784.045(1)(a), which
categorically qualifies as a violent felony, and, even if Dixon timely filed his
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motion and Johnson applies retroactively, no error occurred when the district court
sentenced Dixon as an armed career criminal.
Nor, as Dixon contends, does the record contain any support for his
contention that he was actually convicted only of “culpable negligence” based on
self-defense, not aggravated battery. On the contrary, the record soundly refutes
Dixon’s contention. The judgment entered in the Florida case states that Dixon
was convicted of Fla. Stat. § 784.045, which is the “[a]ggravated battery” statute.5
The separate crime of “culpable negligence” is found at Fla. Stat § 784.05, and
Dixon’s judgment does not reflect anywhere on it that that is what he was
convicted of.
IV.
Because the record demonstratively shows that Dixon was convicted of the
version of § 784.045 that qualifies as a violent felony, even if he timely filed his
motion and Johnson applies retroactively, no error occurred when the district court
sentenced Dixon as an armed career criminal. Accordingly, we affirm the district
court’s dismissal of Dixon’s motion.
AFFIRMED.
5
The crime of aggravated battery is found in Chapter 784, Fla. Stat., which is entitled,
“Assault; Battery; Culpable Negligence.”
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