Case: 13-10958    Date Filed: 10/16/2014   Page: 1 of 11


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-10958
                            Non-Argument Calendar
                          ________________________

                   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, 

, 

(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, 

, 1296 (11th Cir.

2007). Our review of an unsuccessful § 2255 motion is limited to the issues

specified in the COA. McKay v. United States, 

, 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.” 

A court other than the Supreme Court may


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determine retroactivity under § 2255(f)(3). Figuereo-Sanchez v. United States, 

, 1207 (11th Cir. 2012).

       To determine whether a case is retroactively applicable, we have applied the

rubric developed in Teague v. Lane, 

, 

(1989). Under

Teague, we first ask whether the Supreme Court announced a new rule in the

decision in question. 

. 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.” 

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, 

, 351-53, 

(2004) (quotations omitted); see Figuereo-

.

       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 

, 

.

       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 

at 138, 

(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 

at 135-45, 

.

       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 

. 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. 

, 

; see also Descamps v. United States, 

, 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, 

, 685
(11th Cir. 2012), cert. denied, 

(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.” 

, 

.

       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 

, 

; Small v. State, 

, 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), 

, 1341 (11th Cir.), cert. denied, 

(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, 

, 686 (11th Cir.

2012), cert. denied, 

(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., 

, 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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