Rozier: Johnson does not entitle 2255 movant to relief

In Rozier v. U.S., No. 11-13557 (Nov. 21, 2012) (2-1), the Court held that a movant pursuant to 28 U.S.C. § 2255 was not entitled to relief from his sentence based on the United States Supreme Court’s decision in Johnson v. U.S., 130 S.Ct. 1265 (2010).




In 2001, Rozier was sentenced as a career offender. His career offender status was based in part on a prior conviction for battery on a police officer in violation of Fla. Stat. § 784.07(2)(b). Years after his sentence was affirmed on appeal, the Supreme Court decided Johnson, in which it held that, under the “elements clause” of the career offender guideline, a Florida felony battery did not qualify as a predicate offense. Johnson did not reach whether the offense qualified under the Guideline’s “residual clause.”



The Court recognized that Johnson is retroactively applicable. However, because Johnson did not reach whether a Florida battery qualified as a predicate offense under the “residual clause” of the Guideline, it was not a “change in controlling law” that would entitle Rozier to relief on a § 2255 claim. In its prior decision in Rozier’s appeal, the Eleventh Circuit had relied on the residual clause in affirming the sentence. Because there was no intervening decision contrary to its prior ruling, the Eleventh Circuit was bound by its earlier ruling.



[Dissenting, Judge Hill stated: “I reluctantly conclude that our court is determined to deny relief to every confined habeas petitioner whose sentence has been unlawfully enhanced under either the career offender guideline or the armed career criminal statute.”]

Berry: FSA does not apply to defendants sentenced pre-FSA

In U.S. v. Berry, No. 12-11150 (Nov. 14, 2012), the Court held that a defendant sentenced in 2002, prior to the effective date of the Fair Sentencing Act (FSA), was not eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2).




Berry was subject to a statutory mandatory minimum life sentence. Consequently, the Court found, Amendment 750 had no effect on his Guideline range or sentence.



The Court recognized that the FSA, which became effective August 3, 2010, lowered the statutory minimum penalties for crack cocaine offenses. But noting that the FSA is not a Guidelines amendment but a statutory change by Congress, the Court held that the FSA cannot serve as a basis for a § 3582(c)(2) reduction.



The Court added that even assuming that an FSA claim could be brought in a § 3582(c)(2) motion, the claim still fails. The Court explained that the savings clause, 1 U.S.C. § 109, precludes extinguishment of the sentence Berry received in 2002. The Court distinguished the Supreme Court’s decision in Dorsey v. U.S., pointing out that it only held that defendants sentenced after the effective date of the FSA would be subject to the reduced mandatory minimums for crack cocaine offenders. Dorsey did not address defendants sentenced, like Berry, before the FSA took effect.

Burton: Client may have ultimate authority to call witnesses

In Burton v. Commissioner, Alabama Dep’t of Corrections, No. 10-12108 (Nov. 7, 2012), the Court denied habeas relief to an Alabama death row inmate.




At the penalty phase of Burton’s murder trial, contradicting the position of his defense counsel stated on the record, Burton asked the trial judge to have counsel call two of his accomplices. These two witnesses not only provided no mitigating evidence, but they opened the door for cross-examination that allowed the State to introduce aggravating evidence. The jury sentenced Burton to death, and the Alabama courts affirmed.



In federal habeas proceedings, Burton argued that the Alabama trial judge erred when he allowed Burton to override the decision of his own defense lawyer, and had the two witnesses testify in the penalty phase. The Court rejected this argument, noting that the United States Supreme Court has not yet decided whether the ultimate authority to call witnesses at trial belongs to counsel or the client. Consequently, the state trial judge’s ruling that the decision to call witnesses ultimately rests with the client did not contravene clearly established law as determined by the Supreme Court – the standard for habeas relief under AEDPA.

Bellaizac-Hurttado: Drug Trafficking Not a Violation of Customary International Law

In U.S. v. Bellaizac-Hurtado, No. 11-14049 (Nov. 6, 2012), the Court reversed convictions for cocaine trafficking offenses in violation of 46 U.S.C. §§ 70503(a), 70606; 21 U.S.C. § 960(b)(1)(B), that occurred in the territorial waters of Panama. The Court held that Congress cannot constitutionally proscribe such drug trafficking offenses under its Article I power to “define and punish . . . Offences against the Law of Nations.”




The Court explained that the power to “define” offenses does not give Congress the power to “create or declare offenses against the law of nations, but instead to codify and explain offenses that had already been understood as offenses against the law of nations.” The Court held that offenses against the law of nations means offenses under customary international law. The Court noted that it need not decide whether the power to “define” offenses changes with the evolution of customary international law, because drug trafficking was not a violation at the time of the Founding, and is not a violation today – noting that a number of countries’s economies are “dependent on the drug trade,”contrasting the international community’s treatment of genocide, and pointing out that the International Criminal Court does not have jurisdiction over drug trafficking.



[Judge Barkett, concurring, would have held that an offense is only “against the Law of Nations” if it is subject to “universal jurisdiction” – which, she found, drug trafficking is not].

Lawrence: Deference to Florida Competency determination

In Lawrence v. Sec. Dep’t of Corrections, No. 10-13862 (Oct. 30, 2012), the Court affirmed the denial of habeas relief to a Florida inmate sentenced to death for a 1998 murder. The Court held that, under AEDPA’s deferential standard of review, the Florida courts did not unreasonably determine that, despite suggestions that the defendant was experiencing "hallucinations" during the trial, he was competent to stand trial, pointing inter alia to evidence that the defendant was merely "having a bout with his conscience."