In Turner v. Warden, No. 10-12094 (Feb. 22, 2013), the Court affirmed the denial of a § 2241 motion by a defendant who claimed that his prior offenses did not qualify as “violent felonies” for purposes of a sentence enhancement under the Armed Career Criminal Act (“ACCA”).
The Court noted that for a petitioner who, like Turner, previously filed a § 2255 motion challenging his sentence, and for whom a subsequent § 2255 challenge of misapplication of the Sentencing Guidelines would therefore be foreclosed, the “last bastion” in which he can “seek refuge” under § 2241 is “when his claims involve an intervening change in the law that renders erroneous the ACCA violent felony enhancement used to enhance his sentence beyond the statutory maximum.”
The Court found that Turner’s prior conviction for shooting into an occupied building, in violation of Fla. Stat. § 790.19, qualifies as a “violent felony.” “Even if the offender believes the building to be unoccupied, the likelihood that an occupant or innocent passerby might be injured by falling debris – or the bullet itself – is real.”
The Court also found that battery on a police officer, in violation of Fla. Stat. § 784.07(2)(b), qualified as a violent felony. “The charged environment created when a citizen physically confronts the police is a verifiable powder keg, laden with danger to the officer, the defendant, and innocent bystanders alike.”
The Court also found that aggravated battery, in violation of Fla. Stat. § 784.045, is also a “violent felony.” The Court noted that Turner’s conviction involved stabbing a man in the chest.
[Hill, J. in a separate opinion, disassociated himself from the majority’s statement that, because sentence enhancement and sentences for underlying crimes are like “ducks and donkeys,” and they should not be treated the same under § 2255 and § 2241. “If our government can incarcerate people for time beyond that provided for by law simply because we call the incarceration a duck instead of a donkey, there is no constitutional guarantee against deprivation of liberty in this country.”]