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United States Court of Appeals,Eleventh Circuit.

Herbert ROZIER, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.

No. 11–13557.

Decided: November 21, 2012

Before CARNES, BARKETT and HILL, Circuit Judges. Brenda Greenberg Bryn, Timothy Day, Fed. Pub. Defenders, Fort Lauderdale, FL, Michael Caruso, Fed. Pub. Def., Miami, FL, for Petitioner–Appellant. Michael A. Rotker, U.S. Dept. of Justice—Crim. Div., Washington, DC, Kathleen Mary Salyer, Wifredo A. Ferrer, Lisa Tobin Rubio, Anne Ruth Schultz, U.S. Attys., Miami, FL, Scott Behnke, U.S. Atty., Fort Lauderdale, FL, for Respondent–Appellee.

In 2001, Herbert Rozier was convicted of distributing crack cocaine in violation of 21 U.S.C. § 841(a). In calculating his pre-United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), sentencing guidelines range, the district court applied the United States Sentencing Guidelines § 4B1.1 (Nov. 2000) career offender enhancement because Rozier had “two prior felony convictions of ․ a crime of violence.”1 One of the two prior felony convictions that the court found was a “crime of violence” and that made Rozier a career offender was a Florida felony conviction for battery on a law enforcement officer in violation of Fla. Stat. § 784.07(2)(b).2 The career offender enhancement led to a guidelines range of 151 to 188 months imprisonment. Rozier objected to the enhancement, but the district court overruled that objection and sentenced him to 151 months in prison. Rozier appealed his sentence, contending that his prior conviction for felony battery on a law enforcement officer was not a conviction for a crime of violence under U.S.S.G. § 4B1.2(a).

In 2002, we affirmed Rozier's sentence. United States v. Rozier, 37 F. App'x 499 (11th Cir.2002) (table) (unpublished) (Rozier I). In rejecting his argument that his Florida felony conviction for battery on a law enforcement officer did not qualify as a crime of violence, we explained: “Although the battery of a law enforcement officer may be committed without actual violence, in committing the unlawful touching the offender creates the potential for violence to the officer, a violent response on the officer's part, and a risk of harm to bystanders.” Id. In the nomenclature used in this type of case, our holding was that although Rozier's Florida battery on a law enforcement officer conviction did not qualify as a crime of violence under the elements clause of § 4B1.2(a)(1), it did qualify as a crime of violence under the residual clause of § 4B1.2(a)(2). See e.g., Sykes v. United States, –––U.S. ––––, 131 S.Ct. 2267, 2273–76, 180 L.Ed.2d 60 (2011); James v. United States, 550 U.S. 192, 196–209, 127 S.Ct. 1586, 1591–98, 167 L.Ed.2d 532 (2007); United States v. Chitwood, 676 F.3d 971, 975–81 (11th Cir.2012).3 Two of our sister circuits later reached the same conclusion about similar offenses involving battery on a law enforcement officer, holding that those offenses qualify as § 4B1.2(a)(2) crimes of violence or ACCA violent felonies under the residual clause. See United States v. Williams, 559 F.3d 1143, 1149 (10th Cir.2009) (holding that an Oklahoma conviction for battery on a police officer under a statute that criminalized the slightest touching qualified as a crime of violence under residual clause of the career offender guideline because, among other things, “[s]uch battery involves an overt act against the police officer—thereby not only initiating a confrontation, but risking a serious escalation in violence”); United States v. Dancy, 640 F.3d 455, 469–70 (1st Cir.2011) (concluding that a Massachusetts conviction for assault and battery on an officer qualifies as a violent felony under the residual clause of the ACCA, because it “nearly always poses a serious risk of actual or potential physical force and the likelihood of physical injury” and because the serious risk of injury is heightened by the fact that “law enforcement officers usually carry weapons when on duty”) (quotation marks omitted).

In 2011, Rozier filed a 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence, claiming that the sentencing court had erred in finding that his prior Florida felony conviction for battery on a law enforcement officer was a crime of violence for purposes of the U.S.S.G. § 4B1.1 career offender enhancement and that this Court had erred in rejecting that contention when we affirmed his sentence. He relied on the Supreme Court's decision in Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which the Court issued nearly eight years after our decision in his direct appeal. In Johnson, the Court held that Florida's felony battery offense is not a “violent felony” under the ACCA's elements clause, 18 U.S.C. § 924(e)(2)(B)(i).4 130 S.Ct. at 1274. The Court, however, explicitly refused to decide whether that offense was a crime of violence under the ACCA's residual clause. Id.

The district court rejected Rozier's claim and dismissed his § 2255 motion. It reasoned that even if it had been error to apply the career offender enhancement in the case, “[a]n error that would justify a reversal on a direct appeal will not necessarily support a collateral attack on a final judgment” because “the question is whether the asserted error invokes an omission inconsistent with the rudimentary demands of fair procedure or a fundamental defect which inherently results in a complete miscarriage of justice.” The court, however, granted a certificate of appealability on the following issue: “[W]hether Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), should be given retroactive application so that Rozier's career offender classification should be eliminated and he should be re-sentenced.” Contrary to our dissenting colleague's selective reading, Dissenting Op. at 2, the COA does cover the questions we address in this opinion by asking us to consider (1) whether the Johnson decision is retroactively applicable and (2) if it is, whether Rozier's career offender classification should be eliminated in light of that decision. See, e.g., McCoy v. United States, 266 F.3d 1245, 1248 n. 2 (11th Cir.2001) (“Although our review is limited to the issues specified in the COA, we will construe the issue specification in light of the pleadings and other parts of the record.” (quotation marks omitted)).

The government concedes, and we take it as a given, that the Supreme Court's Johnson decision is retroactively applicable. That does not, however, mean that Johnson entitles Rozier to § 2255 relief from the application of the career offender enhancement in his case, from the resulting sentence, and from our decision affirming that sentence and rejecting his claim on direct appeal. At least where there has been no intervening change in controlling law, a claim or issue that was decided against a defendant on direct appeal may not be the basis for relief in a § 2255 proceeding. See United States v. Nyhuis, 211 F.3d 1340, 1343 (11th Cir.2000) (“Once a matter has been decided adversely to a defendant on direct appeal it cannot be re-litigated in a collateral attack under section 2255.” (alteration, citation, and quotation marks omitted)); see also Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974) (“[E]ven though the legal issue raised in a § 2255 motion was determined against the applicant on the merits on [direct appeal], the applicant may nevertheless be entitled to [collateral review on the legal issue] upon showing an intervening change in the law.” (emphasis added) (alteration and quotation marks omitted)); Fuller v. United States, 398 F.3d 644, 648–49 (7th Cir.2005) (holding that a movant could not relitigate his ineffective assistance of counsel claim in a § 2255 motion because the case he relied on as an intervening change in law had “no relevance” to his case and gave the court “no reason to disturb the law of the case”); United States v. Roane, 378 F.3d 382, 396 n. 7 (4th Cir.2004) ( “Because the Defendants have not pointed to any change in the law that warrants our reconsideration of these claims, we agree with the district court that they cannot relitigate these issues.”); White v. United States, 371 F.3d 900, 902 (7th Cir.2004) (“Invoking the doctrine of the law of the case, the courts, including our court, forbid a prisoner to relitigate in a collateral proceeding an issue that was decided on his direct appeal.”); United States v. Sanin, 252 F.3d 79, 85 (2d Cir.2001) (“Therefore, because [the movant's] arguments were considered previously, and because there has been no intervening change in the law entitling [him] to revisit issues already fully litigated, we find that [he] is procedurally barred from raising the issues presented in his current § 2255 petition.”); Oliver v. United States, 90 F.3d 177, 179–80 (6th Cir.1996) (holding that a movant “could not ․ use a § 2255 petition to relitigate” a sentencing guidelines issue that was “fully and fairly presented on direct appeal” because there had not been “an intervening change in the law”); United States v. Prichard, 875 F.2d 789, 790–91 (10th Cir.1989) (“We believe the other two issues raised in the motion to vacate were fairly encompassed in [the movant's] direct appeal. Absent an intervening change in the law of a circuit, issues disposed of on direct appeal generally will not be considered on a collateral attack by a motion pursuant to § 2255. There is no new law applicable to [the movant's] criminal conduct that would inure to his benefit.” (citations omitted)).

The question, then, is whether the Supreme Court's Johnson decision is a change in the controlling law that was applicable at the time of Rozier's sentencing and at the time we affirmed his sentence. The answer is no. We do not “rejoice,” Dissenting Op. at 8, over that answer any more than our dissenting colleague rejoices over his opportunity to disagree with our answer. Instead, we arrive at that answer, as we are required to do, based on the precedent of this Court on direct appeal in this case.

What the Supreme Court did in Johnson is agree with our conclusion in Rozier that the Florida crime of battery on a law enforcement officer is not a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a)(1) (or its counterpart in 18 U.S.C. § 924(e)(2)(B)(i)). Compare Johnson, 130 S.Ct. at 1268–73 (holding that the Florida felony offense of battery is not a “violent felony” under the ACCA's elements clause), with Rozier I, 37 F. App'x at 499 (table) (“[T]he battery of a law enforcement officer may be committed without actual violence ․”). An agreement is not a disagreement. We affirmed Rozier's sentence based on the residual clause of U.S.S.G. § 4B1.2(a)(2). See Rozier I, 37 F. App'x at 499 (table) (holding that “in committing the unlawful touching the offender creates the potential for violence to the officer, a violent response on the officer's part, and a risk of harm to bystanders.”). The Supreme Court in Johnson did not reach the issue of whether the Florida crime of battery is a crime of violence under the residual clause of § 4B1.2(a)(2) (or its counterpart in 18 U.S.C. § 924(e)(2)(B)(ii)). See Johnson, 130 S.Ct. at 1274 (explicitly refusing to address or remand for the court of appeals to address whether “Johnson's 2003 battery conviction is a ‘violent felony’ within the meaning of the so-called ‘residual clause’ in § 924(e)(2)(B)(ii)”); United States v. Schneider, 681 F.3d 1273, 1282 (11th Cir.2012) (“Johnson did not construe the residual clause at all, just whether battery defined as touching ‘no matter how slight ․ even a tap on the shoulder’ had as an element ‘physical force.’ ”). There having been no change in controlling law since we affirmed Rozier's sentence, § 2255 relief may not be granted on a basis that is inconsistent with our judgment on appeal.5

We also note, for the sake of completeness that there is no miscarriage of justice here. Rozier's sentence would also stand under the modified categorical approach, which remains unaffected by Johnson. See Johnson, 130 S.Ct. at 1273 (explaining that the “modified categorical approach that we have approved permits a court to determine which statutory phrase was the basis for the conviction by consulting the 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”) (quotation marks and citation omitted).

When sentencing Rozier, the district court adopted the findings of fact in the presentence investigation report, including its account of how Rozier committed the crime of battery on a law enforcement officer, an account that was unchallenged:

According to the arrest report, on January 16, 1996, police officers responded to 480 N.W. 2 Way in Pompano Beach, reference a prowler. The victim described a black male wearing a Dolphin jacket who had been looking into the front window of his residence. The defendant was observed walking in a south bound direction. He was stopped and asked if he had been at the above address, to which he answered, “yes.” A large bulge was observed in the defendant's left front pocket. During a pat down, the defendant removed something from his right front pocket. He attempted to conceal the item and began swinging his arms and fist. The defendant became violent, thrashing his arms violently, resisting the efforts of the officers to handcuff him. The defendant also kicked violently striking the driver's door of the police vehicle and [sic] leaving a dent. The defendant broke free and began running in an easterly direction. A police canine tracked Rozier to a tree. The defendant struck the dog with his fist. From Rozier's right hand, police retrieved a small brown baggie which contained six cocaine rocks. The rocks tested positive. He was released from imprisonment on October 4, 1998.

We have held that, when 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 PSI if they are undisputed and thereby deemed admitted. See United States v. Bennett, 472 F.3d 825, 832–34 (11th Cir.2006) (holding that “the district court did not err in relying on the undisputed facts in Bennett's PSI to determine that his prior convictions were violent felonies under the ACCA”); see also United States v. Beckles, 565 F.3d 832, 843 (11th Cir.2009) (explaining that “where an ambiguity exists and the underlying conviction may be examined,” in addition to Shepard materials the district court “also may base its factual findings on undisputed statements found in the PSI, because they are factual findings to which the defendant has assented”). Based on the undisputed facts before it, the district court could have determined under the modified categorical approach that Rozier's conviction for felony battery on a law enforcement officer was a crime of violence. What the other panel of this Court held on direct appeal in this case was that Rozier's prior conviction fit within the residual clause, and the facts found by the district court at sentencing fully support that conclusion.

Our colleague's dissenting opinion is based on a fundamental misunderstanding. It contends without any support that the § 4B1.2(a) enhancement that was applied at sentencing in this case is “an enhancement that we all agree is error,” Dissenting Op. at 7; that “[w]e know [the] enhancement was error,” id.; that “[w]e know that the enhancement of his sentence was error,” id. at 8; and that we “all know the result is error,” id. at 10. We disagree with those assertions.

We have not decided, do not all agree, and certainly do not know that the application of the enhancement by way of the residual clause in § 4B1.2(a)(2) was error. One and only one court has ever addressed that specific issue, and that was the panel of this Court (consisting of three other judges), which decided on direct appeal that Rozier's conviction for battery on a police officer was a crime of violence, not under the elements clause of § 4B1.2(a)(1) but under the residual clause of § 4B1.2(a)(2). There has been no contrary decision on that issue by any court. The Supreme Court in Johnson specifically and expressly declined to decide the residual clause issue. Johnson, 130 S.Ct. at 1274; see Schneider, 681 F.3d at 1282. Our dissenting colleague says we fail to “analyze whether Johnson is in conflict with Rozier I.” Dissenting Op. at 6. To the contrary, we recognize that it is not and that the Supreme Court expressly declined to address the issue a panel of this Court decided in Rozier I. So what we do know is that this specific issue was decided against Rozier on direct appeal and there has been no intervening decision to the contrary. That is the basis upon which we must decide this case under the law, which we must follow.


This is a simple case. Rozier's sentence was enhanced under the career offender guideline because he had two prior violent felony convictions, one of which was for Florida BOLEO, which at the time was thought by us to qualify as a crime of violence. See United States v. Rozier, 37 Fed.Appx. 499 (11th Cir.2002) (“Rozier I”) (affirming enhancement on direct appeal). Later, in Johnson, the Supreme Court made clear that we were wrong and the Florida BOLEO statute is not a crime of violence because it permits conviction for a mere touching of the officer.

After Johnson, Rozier filed a federal habeas petition under § 2255 requesting that he be resentenced without the erroneous enhancement, which has him presently incarcerated far beyond what his sentence would have been without the enhancement.1 Rozier's petition argued that Johnson was in conflict with Rozier I because Johnson made clear that the Florida BOLEO statute used to enhance his sentence is not—and never was—a crime of violence and, therefore, he is not—and never was—a career offender. Rozier specifically argued to the district court that, after Johnson, Florida BOLEO is not a crime of violence under the career offender guideline's elements or residual clauses.

The district court agreed. It held that, after Johnson, the Florida BOLEO statute is not a valid predicate offense under the career offender guideline. Furthermore, it agreed with Rozier that Johnson represented a change in the substantive law governing his sentence such that, if the decision were applied retroactively, it would require Rozier to be resentenced without the career offender enhancement. The district court was concerned, however, about it being the first to hold that Johnson should be applied retroactively. It decided that it should not, and certified that question—and that question only—to us. No other question is before us.

That is why this case is simple. The government has conceded both here and elsewhere that Johnson must be applied retroactively.2 The majority opinion recognizes this concession. Therefore, we should remand this case for re-sentencing.

Instead, the majority decides this case on an issue that has not been certified to us by the district court and, for that reason, has neither been briefed nor argued to us by the parties. When asked at oral argument about this issue—whether Rozier's enhancement was affirmed under the residual clause and was not, therefore, in conflict with Johnson—the government admitted that it had not raised this defense of Rozier's enhancement.3

Having undertaken to decide this case upon an issue not certified to us, the majority then holds that there is no conflict between Johnson and Rozier I without one word of analysis. It baldly states that there is no conflict because Johnson evaluated the BOLEO statute under the elements clause of the career offender guideline, while Rozier I was decided under the residual clause. This is surprising.

It was clear to the district court,4 and the government,5 and it is clear to me that Johnson is in conflict with Rozier I. Johnson holds that the Florida BOLEO statute is not a crime of violence under the Guidelines because one of its elements permits conviction for a mere non-violent touching. The majority's implicit assumption that the same statute with the same fundamental defect may nonetheless be resuscitated under the residual clause as a valid enhancement statute is mistaken. If the BOLEO statute is not a crime of violence because one of its elements permits conviction without any physical force—for a mere touching—it follows that it cannot be a crime of violence under the residual clause because it still permits conviction without any physical force and, therefore, without a “serious potential risk of physical injury to another.” Rozier I does not survive Johnson.6

It would appear that the district court, the government and I are not the only ones who subscribe to this view. In this court's opinion on direct appeal in Johnson, the panel wrote, “If [Florida BOLEO] fits within that description [the elements clause], it is a violent crime for ACCA purposes; if not, then not.” 518 F.3d at 1320 (emphasis added). In reversing that panel's subsequent conclusion that Florida BOLEO does satisfy the elements clause, the Supreme Court refused to remand for reconsideration of the statute under the residual clause, specifically citing the panel's aforementioned conclusion that the statute could not qualify under that clause. See Johnson, 130 S.Ct. at 1274.

But now, the majority assumes that there is no conflict between Johnson and Rozier I because they deal with different clauses of the career offender guideline. I disagree.

After the Supreme Court's decisions in Begay and Chambers, we acknowledged the conflict between the Supreme Court's narrowing of the residual clause in those cases with our prior expansive holdings of the reach of that clause. When the opportunity arose, we reversed several of our prior holdings that statutes other than DUI (Begay) and escape (Chambers) are crimes of violence.7 We did not duck the issue of whether our prior holdings affirming enhancements under other statutes were in conflict with Begay and Chambers because those cases dealt with different statutes. Nor did we opine that the teaching of those cases was irrelevant to the different statutes under review, as does the majority in this case. On the contrary, we recognized that we were bound by those cases in reconsidering the scope of the residual clause. Similarly, if we were to analyze whether Johnson is in conflict with Rozier I, as the majority fails to do, I would think that we would find Begay and Chambers relevant to the issue of whether the Florida BOLEO statute is a crime of violence under the residual clause.8

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. We have repeatedly held that procedural rules deprive us of the ability to correct an enhancement that we all agree is error because it was not authorized by law when imposed. To the petitioner, who is serving five, ten or even fifteen years more than he would be in the absence of the error, we say, “Sorry. We know your enhancement was error, but there is nothing we can do. Our hands are tied by procedural rules. We cannot fix this.”

We do this in the name of “finality.” We say we are protecting the integrity of the Great Writ; we cannot go about correcting old mistakes or no conviction or sentence will ever be final.

Of course, finality is desirable. There was a time when there appeared to be no finality in our habeas procedures. The rules we adopted to introduce some finality into the habeas process were long overdue.

But finality must not be our highest goal. The Great Writ is enshrined in our Constitution because we believe that no one may be deprived of life, liberty, or property by the government in violation of law. If a petitioner can show that he is illegally incarcerated, he is entitled to release. Fairness requires it. Justice is the ultimate goal in the grant of the Writ.

But we have increasingly come to define what is “just” by what our procedural rules permit. Recently, the State of Alabama, a panel of this court, and two justices of the Supreme Court agreed that an Alabama prisoner could be put to death as the result of his lawyers—who abandoned his case—having missed a filing deadline. Our court held that we would not—could not—consider the merits of his claim due to this procedural default.

I agree with the member of this panel who dissented in the Alabama case, writing that in certain cases procedure must “yield to the imperative of correcting a fundamentally unjust [sentence].” Seven members of the Supreme Court agreed with that view, reversing our court. See Maples v. Thomas, –––U.S. ––––, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012).

In Maples, there was no certainty that there had been error in the conviction or sentence. In Rozier's case, however, there is certainty. We know that the enhancement of his sentence was error.

I must confess I am bewildered that both the United States, through its Department of Justice, and this court appear to rejoice when access to constitutional protection for the correction of admitted and highly prejudicial error is found to be blocked by unmet procedural “safeguards.” On the contrary, I should have thought that the correction of such error would be celebrated by all sworn to uphold the Constitution. As is inscribed in the office rotunda of the Attorney General of the United States, “The United States wins its point whenever justice is done its citizens in the courts.”9 Some in the Department of Justice seem to believe that the inscription reads, “Justice is done when the United States wins.”

Clearly justice is not the intended beneficiary of these procedural safeguards. On the contrary, the safeguards are designed to protect finality. If these new rules require that finality trump justice, then perhaps, as one member of this panel has opined elsewhere, they are unconstitutional. In any event, I cannot join in this elevation of form over substance; of finality over fairness.

Due process is the defining virtue of our system of criminal justice. But we should ask ourselves why. Is it because it achieves finality? Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant. The goal is a correct result—not simply the provision of process. To be sure, we do not guarantee a correct result. But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.

This is especially true where the petitioner is in federal custody, not state custody. We safeguard finality for state court convictions out of respect for the dual principles of comity and federalism. Neither of these considerations is due the erroneously sentenced federal prisoner.

It seems to me that the majority has striven mightily to avoid granting the writ to someone currently deprived of liberty in violation of law. I am weary of our court's relentless effort to put more and more procedural angels on the head of the habeas pin. At some point, we must concede, as the Seventh Circuit did recently, that common sense and basic fairness require that we correct these unlawfully enhanced sentences. See Narvaez v. United States, 674 F.3d 621 (7th Cir.2011).

I respectfully dissent.

CARNES, Circuit Judge:

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