Petite v. United States of America

Middle District of Florida, flmd-8:2016-cv-01549

ORDER: Within thirty (30) days of the date of this Order, counsel for Petitioner and the government shall confer in a good faith effort to come to an agreement whether Petitioner, in light of Johnson, has the requisite number of predicate offens es to qualify for enhancement under the ACCA. At the end of the thirty days, the parties shall advise the Court in writing whether they have reached an agreement, and, if so, the substance of that agreement. Any agreement will remain subject to the approval of the Court. If counsel are unable to agree, or if the Court rejects the agreement reached by the parties, the government shall file a response to Petitioner's motion within thirty (30 days) of either the filing of a notice of non-ag reement or rejection of the parties' agreement by the Court. Petitioner shall then have fourteen (14) days to file a reply. The United States Probation Office is directed to assist the attorneys by offering its expertise in resolving the issue of whether the Petitioner continues to qualify for an enhanced sentence under the ACCA. Signed by Judge James S. Moody, Jr on 7/6/2016. (LN)

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PageID 10 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MICHAEL PETITE, Petitioner, v. Case No: 8:16-cv-1549-T-30AAS Crim. Case No: 8:11-cr-246-T-30AAS UNITED STATES OF AMERICA, Respondent. ________________________________/ ORDER THIS CAUSE comes before the Court upon Petitioner's successive Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (CV Doc. 1). By his motion, Petitioner contends that he is entitled to relief pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), declared retroactive by Welch v. United States, No. 15- 6418, 2016 WL 1551144 (Apr. 18, 2016). In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), defining a violent felony as a crime "involv[ing] conduct that presents a serious potential risk of physical injury to another," is unconstitutionally vague. See Johnson, 135 S. Ct. at 2563. The Eleventh Circuit has granted Petitioner's motion to file a successive § 2255 motion to pursue relief under Johnson. PageID 11 Accordingly, it is therefore ORDERED AND ADJUDGED that: 1. Within thirty (30) days of the date of this Order, counsel for Petitioner and the government shall confer in a good faith effort to come to an agreement whether Petitioner, in light of Johnson, has the requisite number of predicate offenses to qualify for enhancement under the ACCA. 2. At the end of the thirty days, the parties shall advise the Court in writing whether they have reached an agreement, and, if so, the substance of that agreement. Any agreement will remain subject to the approval of the Court. 3. If counsel are unable to agree, or if the Court rejects the agreement reached by the parties, the government shall file a response to Petitioner's motion within thirty (30 days) of either the filing of a notice of non-agreement or rejection of the parties' agreement by the Court. Petitioner shall then have fourteen (14) days to file a reply. 4. The United States Probation Office is directed to assist the attorneys by offering its expertise in resolving the issue of whether the Petitioner continues to qualify for an enhanced sentence under the ACCA. DONE and ORDERED in Tampa, Florida, this 6th day of July, 2016. Copies furnished to: Counsel/Parties of Record 2