REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, Chief Magistrate Judge.

Defendant Eric Londrey Griffin has filed a Motion to Correct Sentence Under 28 U.S.C. § 2255 and a Time Sensitive Memorandum in Support thereof, contending that he is entitled to sentencing relief based on Johnson v. United States, 135 S.Ct. 2551 (2015) (ECF Nos. 120, 121). The Government filed a response in opposition, and Mr. Griffin filed a reply (ECF Nos. 126, 129). The Government also filed a Notice of Supplemental Authority (ECF No. 131). After a careful review of the record and the arguments presented, it is the opinion of the undersigned that Mr. Griffin's motion should be denied.

BACKGROUND and ANALYSIS

In October of 2000, a jury convicted Mr. Griffin of three counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g) (ECF No. 58). The Court found Mr. Griffin to be an armed career criminal, after adopting the findings of the Presentence Investigation Report (see ECF No. 130, PSR ¶ 42). Mr. Griffin was sentenced to three concurrent terms of 295-months imprisonment followed by a five-year term of supervised release (ECF No. 72). Mr. Griffin's convictions and sentence were affirmed on appeal. United States v. Griffin, 277 F.3d 1378 (11th Cir. 2001). Mr. Griffin filed two previous § 2255 motions, which were dismissed as untimely and successive, respectively (see ECF Nos. 108, 111, 112, 114-116). On May 27, 2016, the Eleventh Circuit granted Mr. Griffin's application to file a successive § 2255 motion under Johnson (see ECF No. 118).

Pursuant to the Armed Career Criminal Act ("ACCA"), a person who has three previous convictions for a violent felony, a serious drug offense, or both is subject to a mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1). The statutory definition of a violent felony under the ACCA is an offense that either "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [known as the elements clause] or (ii) is burglary, arson, or extortion, involves the use of explosives [known as the enumerated offenses clause] or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the residual clause]." 18 U.S.C. § 924(e)(2)(B)(i) and (ii). An individual subject to ACCA's enhanced penalties also is subject to a greater guidelines range pursuant to U.S.S.G. § 4B1.4. Absent the application of the ACCA enhancement, Mr. Griffin would have faced a maximum sentence of ten-years imprisonment on each count. See 18 U.S.C. § 924(a)(2). In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court ruled that the ACCA's "residual clause" was unconstitutionally vague. Johnson, 135 S. Ct. at 2563. Thus, a prior conviction can only qualify as a "violent felony" if it falls within the elements clause or is one of the enumerated offenses.

Mr. Griffin contends that in enhancing his sentence, the court relied on four Florida convictions: a 1989 conviction for delivery of cocaine; a 1990 conviction for battery on a correctional officer; a 1992 conviction for assault or battery within a county detention facility; and a 1996 conviction for aggravated assault with a deadly weapon (see PSR ¶¶ 47, 50, 54, 60). Mr. Griffin concedes that his 1989 conviction for delivery of cocaine qualifies as an ACCA predicate offense, but argues that the other three convictions he lists are not violent felonies under the residual clause of the ACCA and do not qualify under the elements or the enumerated offenses clauses (ECF No. 121 at 5).1 The Government argues that it is not clear from the record which convictions the court actually relied upon in originally sentencing Mr. Griffin pursuant to the ACCA (ECF No. 126 at 7). In determining that Mr. Griffin made a prima facie case showing that he had raised a claim that entitled him to file a successive § 2255 motion, the Eleventh Circuit stated as follows:

(ECF No. 118 at 7-8) (footnotes omitted). The court then stated that given the short time it had to decide the application, it was unable to determine whether any of Mr. Griffin's battery convictions would constitute violent felonies under the elements clause (id. at 9). However, the court noted that his 1996 conviction for aggravated assault with a deadly weapon would appear to constitute a violent felony under the elements clause and that his 1989 conviction for the delivery of cocaine was a possible candidate for status as a serious drug offense (id.). Because the court could not determine whether Mr. Griffin's convictions in 1992 or 1996 for possession of cocaine could qualify as a third serious drug offense under the ACCA, or whether any of his convictions so qualified, it granted the application to file a successive § 2255 motion.

In addition to Mr. Griffin's 1989 conviction for the delivery of cocaine, which indisputably qualifies as an ACCA predicate offense, he needs two more qualifying convictions for his sentence to have been properly enhanced under the ACCA. The Government argues that Mr. Griffin's 1992 felony conviction for attempted assault or battery in a county detention facility under Fla. Stat. § 951.075 is one such conviction because has an element of the use, attempted use, or threatened use of physical force against another person (ECF No. 129; see also ECF No. 130, PSR ¶ 54). At the time of Mr. Griffin's conviction, Fla. Stat. § 951.075 (1992) provided as follows:

(emphasis added) (ECF No.126, Ex. 2).2 The Government argues that given the language used in this statute, Mr. Griffin's conviction is a violent felony under the ACCA's elements clause, so the invalidation of the residual clause has no effect on the validity of the conviction as an ACCA predicate offense and Johnson does not apply to his case.

In his reply Mr. Griffin argues that it is not clear from the judgment whether he was convicted of attempted (1) assault, (2) battery, or (3) assault and battery— with a deadly weapon or instrument or by any means of force likely to produce great bodily harm (see Judgment, ECF No. 126, Exh. 1).3 Mr. Griffin argues that a Florida battery conviction is not necessarily a violent felony because the offense may not have involved violent force; although Mr. Griffin acknowledges that this is a harder argument to make if a deadly weapon or means of force likely to produce great bodily injury is involved. He argues that if the conviction was for assault, however, then the conviction would not qualify as a violent felony under the elements clause because the person convicted may have had a mens rea of culpable negligence which is akin to recklessness. Mr. Griffin argues that a conviction predicated on a mens rea of recklessness does not satisfy the definition of a crime of violence.4

The undersigned finds that the phrase "with a deadly weapon or instrument or by any means of force likely to produce great bodily harm" modifies each of the possible means by which Fla. Stat. § 951.075 could be violated. Therefore, a conviction under this statute, which requires the use of a "deadly weapon" or "force likely to produce great bodily injury," has as an element "the use, attempted use, or threatened use of physical force." § 924(e)(2)(B)(i). In the context of the ACCA, "the phrase `physical force' means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis in original). The conviction listed in Paragraph 54 of PSR falls within the elements clause, and therefore qualifies as Mr. Griffin's second ACCA predicate offense.

The Government argues that Mr. Griffin's 1996 conviction for an aggravated assault with a deadly weapon, in which he pled no contest, qualifies as Mr. Griffin's third ACCA predicate offense (ECF No. 130, PSR ¶ 60). The Government points out that Eleventh Circuit precedent holds that a conviction for aggravated assault under Fla. Stat. § 784.021 is categorically a violent felony under the elements clause. See Turner v. Warden Coleman FCI, 709 F.3d 1328, 1338 (11th Cir. 2013) ("by its definitional terms, the offense [an aggravated assault, under Fla. Stat. § 784.021] necessarily includes an assault, which is `an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so' [Fla. Stat. § 784.011 (emphasis supplied)5]"). Therefore, a conviction under section 784.021 "will always include `as an element the . . . threatened use of physical force against the person of another,' § 924(e)(2)(B)(i), and [a] conviction for aggravated assault thus qualifies as a violent felony for purposes of the ACCA." Turner, 709 F.3d at 1338; United States v. Golden, No. 15-15624, 2017 WL 343523 (11th Cir. Jan. 25, 2017) (per curiam) (petition for rehearing denied Mar. 23, 2017) (affirming post-Johnson that Turner is binding precedent and Fla. Stat. § 784.021 remains categorically a violent felony under the elements clause).

In his reply, Mr. Griffin again argues that the mens rea involved in this offense can be equated to recklessness, and thus his conviction does not qualify as a violent felony (ECF No. 129 at 20).6 While Mr. Griffin acknowledges that the Eleventh Circuit has held that aggravated assault qualifies as a violent felony under the elements clause of the ACCA pre-Johnson, he argues that this decision did not include any analysis of intent, and if it had, the decision would have been different. However, the Golden decision was issued after Mr. Griffin filed his reply, and binding Eleventh Circuit precedent that this conviction qualifies as a violent felony without a consideration of intent controls. Therefore, Mr. Griffin's 1996 conviction for aggravated assault with a deadly weapon qualifies as his third predicate offense under the ACCA. Because Mr. Griffin has three requisite predicate convictions to support the application of the ACCA enhancement, he is not entitled to sentencing relief.7

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing § 2255 Proceedings provides that "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant," and if a certificate is issued "the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. Rule 11(b), § 2255 Rules.

After review of the record, the court finds no substantial showing of the denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (explaining how to satisfy this showing) (citation omitted). Therefore, it is also recommended that the court deny a certificate of appealability in its final order.

The second sentence of new Rule 11(a) provides: "Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue." If there is an objection to this recommendation by either party, that party may bring this argument to the attention of the district judge in the objections permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED that: