Petite v. United States of America

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

ORDER granting {{1}} Motion to vacate/set aside/correct sentence (2255). The sentence in case no. 8:11-cr-246-T-30AAS at Doc. 32 is VACATED. A resentencing hearing shall be set by separate order. The Clerk is directed to close this case and deny any pending motions as moot. Signed by Judge James S. Moody, Jr on 7/20/2016. (LN)

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PageID 41 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 Michael Petite's successive Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1) filed on June 13, 2016. 1 By his motion, Petitioner asserts 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). Under § 2255(f)(3), Petitioner's motion was timely filed within one year of Johnson. The government agrees that Petitioner is entitled to relief under Johnson because Petitioner was sentenced under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), but due to Johnson's invalidation of the residual clause, Petitioner no longer has the requisite three qualifying predicate offenses to be sentenced under the ACCA. (CV Doc. 5). 1 On June 10, 2016, the Eleventh Circuit granted Petitioner's request to file a successive motion under § 2255. (CR Doc. 63). As such, this Court has jurisdiction to consider Petitioner's claim. PageID 42 On June 20, 2011, Petitioner pled guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g), 924(e). (CR Docs. 21, 23-24). On October 18, 2011, Petitioner was sentenced to 188 months' imprisonment followed by 36 months' supervised release. (CR Doc. 32). Petitioner's sentence was imposed pursuant to the ACCA based on three predicate offenses (1) robbery, (2) sale of cocaine, and (3) fleeing and attempting to elude a law enforcement officer. (PSR at ¶ 26). Fleeing and eluding an officer qualified as an ACCA predicate offense under the residual clause. See Sykes v. United States, 564 U.S. 1 (2011); United States v. Petite, 703 F.3d 1290 (11th Cir. 2013). In light of Johnson, fleeing and eluding an officer is not an ACCA predicate offense, and Petitioner no longer qualifies for an enhanced sentence under the ACCA. Consequently, Petitioner's motion should be granted. Accordingly, it is therefore ORDERED AND ADJUDGED that: 1. Petitioner Michael Petite's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (CV Doc. 1) is GRANTED. 2. The sentence in case no. 8:11-cr-246-T-30AAS at Doc. 32 is VACATED. 3. A resentencing hearing shall be set by separate order. 4. The Clerk is directed to close this case and deny any pending motions as moot. DONE and ORDERED in Tampa, Florida, this 20th day of July, 2016. Copies furnished to: Counsel/Parties of Record 2