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Vitko v. United States

United States District Court, D. Maine

May 19, 2016




         Based on the Supreme Court’s decision in Johnson v. United States striking the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutional, the Court concluded that Mr. Vitko is serving a sentence that violates the United States Constitution and, therefore, relief was warranted under 28 U.S.C. § 2255. The Court ordered he be resentenced. In response to the Court’s Order, the Government filed a motion for reconsideration, asking the Court to rethink its decision and deny Mr. Vitko relief. The Court denies the Government’s motion and again orders Mr. Vitko resentenced because (1) Florida law leaves the possibility that Mr. Vitko was convicted of non-generic burglary as defined under the ACCA, (2) Mr. Vitko has met his burden of proof, and (3) burglary under Florida law does not constitute a “violent felony” under the “force” clause of the ACCA.


         The Court provides an abbreviated synopsis of the procedural background. Greater detail is found in the Order under reconsideration. See Order Den. the Recommended Decision of the Magistrate Judge and Granting Relief under 28 U.S.C. § 2255 (ECF No. 88) (Order).

         On September 11, 2008, a federal grand jury indicted Melvin Vitko on two-counts as a felon in possession of five firearms (Count One), a violation of 18 U.S.C. § 922(g)(1), and for possession of the same five firearms knowing they were stolen (Count 2), a violation of 18 U.S.C. § 922(j). Indictment at 1-3 (ECF No. 1) (Indictment). The Indictment asserted seventeen prior convictions in the state of Florida: eight burglaries, four grand thefts, an escape, uttering a forged check, conspiracy to escape, felonious possession of firearms, and dealing in stolen property. Id. Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), Mr. Vitko was subject to a mandatory minimum of fifteen years in prison if the Government could prove that he had at least three prior convictions for “violent felonies.”[1] Pursuant to a plea agreement, on November 7, 2008, Mr. Vitko pleaded guilty to Count 1 of the Indictment. Plea Agreement (ECF No. 13); Entry (ECF No. 15). On April 14, 2009, the Court sentenced Mr. Vitko to 188 months imprisonment, five years supervised release, and a $100 special assessment. Entry (ECF No. 24); J. (ECF No. 27).

         Mr. Vitko filed a motion pursuant to 28 U.S.C. § 2255 on April 23, 2014. Mot. to Vacate, Set Aside or Correct Sentence (ECF No. 32). On January 15, 2015, the Magistrate Judge issued a recommended decision for the Court to deny relief and dismiss Mr. Vitko’s § 2255 motion. Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 58). However, on January 26, 2015, Mr. Vitko filed two motions, each seeking to stay proceedings regarding his § 2255 motion. Pet’r’s Mot. to Stay Proceedings regarding Pending Pet. for Writ of Habeas Corpus under 28 U.S.C. § 2255 (ECF No. 59) (First Mot. to Stay); Pet’r’s Mot. Requesting Stay of Proceedings relating to Pending 28 U.S.C. § 2255 Pet. (ECF No. 60) (Second Mot. to Stay). The motions cited the United States Supreme Court’s January 9, 2015 order to the parties in Johnson v. United States to brief and argue “[w]hether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(B)(ii), is unconstitutionally vague.” Second Mot. to Stay at 1.

         On June 26, 2015, the Supreme Court decided Johnson v. United States, holding that imposing an increased sentence under the residual clause of the ACCA violates the Constitution’s guarantee of due process. 135 S.Ct. 2551 (2015). On July 7, 2015, citing Johnson, Mr. Vitko filed motions to amend and supplement his § 2255 motion. Mot. for Leave to Amend 28 U.S.C. § 2255 (ECF No. 65); Mot. for Leave to Suppl. 28 U.S.C. § 2255 (ECF No. 66). The Court appointed counsel to represent Mr. Vitko on September 2, 2015. Order Appointing Counsel (ECF No. 76). On September 22, 2015, through his newly appointed counsel, Mr. Vitko filed a memorandum in support of his § 2255 motion, arguing that Mr. Vitko’s increased sentence pursuant to the residual clause of the ACCA was unconstitutional under Johnson. Mem. of Law in Supp. of Def.’s Mot. to Vacate, Set Aside, or Correct Sentence (Johnson Issue) (ECF No. 79). On November 24, 2015, the Government responded. Gov’t’s Resp. to Mem. in Support of Def.’s Mot. to Vacate, Set Aside or Correct Sentence (Docket # 79) (ECF No. 86). On December 9, 2015, Mr. Vitko replied. Def.’s Reply to the Gov’t’s Resp. (#86) in Support of Mot. to Vacate Set Aside or Correct Sentence (#32) (ECF No. 87).

         On April 4, 2016, this Court held, based on Johnson, that Mr. Vitko was serving a sentence that violates the United States Constitution and relief was warranted under 28 U.S.C. § 2255. Order Den. the Recommended Decision of the Magistrate Judge and Granting Relief under 28 U.S.C. § 2255, at 1 (ECF No. 88) (Order). Citing United States v. Sanchez-Ramirez, 570 F.3d 75 (1st Cir. 2009) and James v. United States, 550 U.S. 192 (2007), the Court concluded that because Mr. Vitko’s sentence was enhanced under the residual clause of the ACCA, it was unconstitutional under Johnson. Id. at 27. The Court ordered him to be resentenced. Id.

         The Government filed a motion for reconsideration of the Court’s Order on April 7, 2016. Gov’t’s Mot. for Reconsideration of Order Den. the Recommended Decision of the Magistrate Judge and Granting Relief under 28 U.S.C. § 2255 (ECF No. 91) (Gov’t’s Mot.). Mr. Vitko filed a response in opposition on April 18, 2016. Def.’s Resp. to the Gov’t’s Mot. to Reconsider (#91) the Court’s Order (#88) Denying the Recommended Decision (#58) and Granting the Def.’s Mot. to Vacate, Set Aside, or Correct Sentence (#32) (ECF No. 96) (Def.’s Opp’n).


         A. The Government’s Motion for Reconsideration

         The Government argues there are three reasons the Court should reconsider its Order granting Mr. Vitko relief pursuant to 28 U.S.C. § 2255 and instead deny his petition. Gov’t’s Mot. at 1. First, the Government takes issue with the Court’s conclusion that, after assessing the charging documents for seven of Mr. Vitko’s Florida burglaries, “it was possible that Mr. Vitko was convicted of ‘nongeneric’ burglary” and thus he was entitled to §[]2255 relief.” Id. at 2-3 (emphasis provided by Government). The Government turns to Eleventh Circuit caselaw for the assertion that a conviction under Florida’s burglary statute can qualify as “generic burglary” if the charging documents or other Shepard-approved[2] sources show that the offense involved unlawful entry into an actual building or structure. Id. at 3-4 (citing United States v. Weeks, 711 F.3d 1255, 1262 (11th Cir. 2013); United States v. Jackson, 250 F. App’x 926, 927 (11th Cir. 2007); United States v. Branson, 200 F. App’x 939, 941-42 (11th Cir. 2006)). The Government also cites United States v. Matthews, 466 F.3d 1271, 1274 (11th Cir. 2006), where a defendant’s Florida burglary convictions did not qualify as “generic burglary” because the charging documents and conviction did not specify whether the defendant entered the roofed portion of a structure or only its curtilage. Id. at 4. The Government maintains that the Shepard-approved charging documents for Mr. Vitko’s convictions specifically allege illegal entries with intent to commit crimes within seven dwellings or structures, that none of the charging documents alleges illegal entry into the curtilage, and thus his convictions should be subject to the ACCA’s sentencing enhancement for committing generic burglary, not based on the residual clause. Id. at 4

         Second, the Government asserts that while it generally has the burden to prove that a prior conviction is valid, on habeas review the burden is on the petitioner to show entitlement to relief, and when the evidence is in equipoise, the party with the burden of proof must lose. Id. at 6. The Government argues that, assuming it had any burden of production to show that Mr. Vitko had valid ACCA predicates, it satisfied that burden by presenting the Court with certified copies of the charging instruments of the seven Florida burglaries, which identify specifically by owner and address the building or dwelling entered. Id. at 9. Further, the Government argues that Mr. Vitko produced no evidence showing that his Florida convictions were for illegal entries into the curtilage, and that at best the evidence is in equipoise, and under such circumstances, because the burden of proof is on Mr. Vitko, he must lose. Id. at 10.

         Finally, the Government encourages the Court to follow the approach of another District of Maine judge and revisit Mr. Vitko’s prior convictions to consider whether they qualify under the “force” clause of the ACCA, which is still valid under Johnson. Id. at 11 (citing United States v. Murdock, No. 2:11-CR-08-DBH, No. 2:14-CV-205-DBH, 2016 WL 910153, at *2-4, 2016 U.S. Dist. LEXIS 30396, at *5-12 (D. Me. Mar. 9, 2016)).

         B. Mr. Vitko’s Response

         Mr. Vitko argues that the Eleventh Circuit caselaw relied upon by the Government is flawed, as it ignores United States Supreme Court and Florida caselaw. Def.’s Opp’n at 3. Citing Taylor v. United States, 495 U.S. 575, 602 (1990), Mr. Vitko points to the Supreme Court’s holding that:

[I]f the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then [the offense is a generic burglary].

(emphasis provided by Mr. Vitko). Turning to Branson and the Eleventh Circuit’s analysis of a charging document that alleged the defendant entered “a certain structure, to wit: a storage shed, ” Mr. Vitko explains that the court expressly noted that a jury could have convicted the defendant of entering only the curtilage of the shed, ignoring Taylor’s requirement that, for a conviction to be a generic burglary, it was necessary for a jury to find actual entry into a building. Def.’s Opp’n at 3 (citing Branson, 200 F. App’x at 942). As to Weeks and Jackson, Mr. Vitko argues that the Eleventh Circuit assumed incorrectly that the inclusion of the word “building” in the charging document “clarifies all doubt about whether the defendant was convicted of entry into the building, or into the curtilage.” Id. at 3-4.

         Mr. Vitko explains that under Florida law a charging instrument alleging entry into a structure described as a “building, ” “business, ” or “home” does not limit the proof necessary at trial to actual entry of a building, as those words are mere “surplusage.” Id. at 4. He notes that under Florida law, “deviations from the facts alleged in the charging document [are] permitted [if] . . . the changed facts [are] not essential elements of the charged offense, ” id. (citing Ingleton v. State, 700 So.2d 735, 739 (Fla. 5th DCA 1997)), and “where a variance between the allegations and proof is not such as to have misled the defendant or subject him to a substantial possibility of reprosecution for the same offense, the variance is immaterial and does not preclude conviction.” Id. (citing Grissom v. State, 405 So.2d 291, 292 (Fla. 1st DCA 1981)). Mr. Vitko contends that a Florida charging instrument asserting entry into a “building, ” “business, ” or “home” does not suffer a fatal variance “if the state merely proves that the person entered the curtilage of the building or home, so long as the instrument charges the essential element of entry into a ‘structure’ or ‘dwelling.’” Id. at 4-5 (citations omitted). He concludes that, applying these rules to the seven charging instruments for his burglaries, he could have been convicted by a jury of burglary for entering the curtilages of the various buildings, and that any variance between the charge of entry into a “building, ” “business, ” or “home” (which is not an element of the offense), and proof of entry only into the curtilage, would not be prejudicial and in no way limits the prosecution or proof at trial. Id. at 5.

         As to the Government’s burden of proof argument, Mr. Vitko submits that his burden is only to prove that his convictions are facially invalid when considered as convictions for generic burglary, and that he is not required to go beyond the Taylor analysis and establish the facts of each conviction. Id. at 6. He argues that he has met his burden by showing that, while the convictions offered by the Government are facially valid convictions for violating Florida’s burglary law, the properly analyzed Shepard sources do not establish them as convictions for generic burglaries, and that he was thus sentenced under the residual clause. Id. at 7. Mr. Vitko also discusses that while the Government seized upon this Court’s statement that “it is possible that Mr. Vitko was convicted on ‘non-generic’ burglary, ” this does not mean that the evidence is in equipoise. Id. Indeed, he contends that “the Court’s inability to determine whether his convictions were for generic burglary is exactly the fact Mr. Vitko must prove to prevail.” Id. at 7-8.


         A motion “to alter or amend a judgment” is available under Federal Rule of Civil Procedure 59(e). Fed.R.Civ.P. 59(e). Such motions are referred to in shorthand as “motions for reconsideration.” United States v. Poulin, No. 1:08-cr-00050-JAW, No. 1:12-cv-00114-JAW, 2014 WL 1642269, at *2 (D. Me. Apr. 24, 2014). District courts enjoy considerable discretion in deciding Rule 59(e) motions for reconsideration. ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008).

         A Rule 59(e) motion should not “raise arguments which could, and should, have been made before judgment issued.” Id. (quoting FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992)). Moreover, a motion for reconsideration “is not a vehicle to force the court to think twice; it is not an opportunity for the losing party simply to press his unsuccessful arguments a second time in the hope that, by repetition, the court will see them his way.” Int'l Ass'n of Machinists & Aerospace Workers v. Verso Corp., 121 F.Supp. 3d 201, 217 (D. Me. 2015) (quoting Poulin, 2014 WL 1642269, at *2). “Instead, the motion provides the court with an opportunity to correct ‘manifest errors of law or fact or to present newly discovered evidence.’” Id. Furthermore, “a motion for reconsideration’s utility is limited to: (1) the availability of new evidence not previously available, (2) an intervening change in controlling law, or (3) the need to correct a clear error of law or to prevent manifest injustice.” Id. at 217-18.

         Rule 60(b) provides that, “on motion and on such terms as are just, a district court may relieve a party from a final judgment.” Ungar v. Palestine Liberation Org., 599 F.3d 79, 83 (1st Cir. 2010) (citing Fed.R.Civ.P. 60(b)). The specific grounds for relief under Rule 60 are grouped into six subsections; the first five subsections describe a particular basis for relief from judgment, while Rule 60(b)(6) is a catch-all provision that authorizes the district court to grant relief from judgment for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(6). “The decision to grant or deny such relief is inherently equitable in nature.” Ungar, 599 F.3d at 83 (citing United States v. One Star Class Sloop Sailboat, 458 F.3d 16, 25-26 & n.10 (1st Cir. 2006); Teamsters, Chauffeurs, Warehousemen & Helpers Union v. Superline Transp. Co., 953 F.2d 17, 19-20 (1st Cir. 1992)). However, for the reasons discussed below, the Court denies the Government’s Rule 59(e) motion to reconsider, and as the Government fails to offer “any other reason that justifies relief, ” the Court also denies the Government’s motion under Rule 60(b)(6). See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2864 (3d ed. 2012) (“Courts have found few narrowly-defined situations that clearly present ‘other reasons justifying relief’”).


         A. Retroactivity

         On April 18, 2016, the Supreme Court decided Welch v. United States, holding that “Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.” 136 S.Ct. 1257, 1265 (2016). When the Court issued its Order on Mr. Vitko’s § 2255 motion, Welch had not been decided, and the Court debated the merits of proceeding without guidance from the Supreme Court on the issue of Johnsons retroactivity. Order at 19-22. Welch provides definitive authority on the issue and the Court turns to the merits of the Government’s motion for reconsideration.

         B. The Analytic Pathway

         As the Court described in its original Order, the Supreme Court and the First Circuit have explained how to approach the question of whether a particular prior conviction is a violent felony under the ACCA. Order at 23-24; Descamps v. United States, 133 S.Ct. 2276, 2281 (2013); United States v. Carrigan, 724 F.3d 39, 48 (1st Cir. 2013). The first step is to determine “if the statutory definition of the prior offense fits the ACCA’s definitions of ‘violent felony’ . . . .” Carrigan, 724 F.3d at 48. In performing this categorical inquiry, courts “typically must limit [their] inquiry to the ‘fact of conviction and the statutory definition of the prior offense.’” Id. (quoting United States v. Moore, 286 F.3d 47, 49 (1st Cir. 2002) (quoting Taylor v. United States, 495 U.S. 575, 602 (1990)). “This approach is deemed categorical because we may consider only the offense’s legal definition, forgoing any inquiry into how the defendant may have committed the offense.” United States v. Holloway, 630 F.3d 252, 256 (1st Cir. 2011). “If a prior conviction under state law is at issue, ‘[s]tate court construction of the relevant state law dictates our result.’” Carrigan, 724 F.3d at 48 (quoting United States v. Hart, 674 F.3d 33, 41 (1st Cir. 2012)). If the elements of the statute matches the definition of a generic burglary, the “inquiry ends and the prior conviction may be used as an ACCA predicate.” United States v. Miller, 478 F.3d 48, 50-51 (1st Cir. 2007).

         If the “underlying statute sweeps more broadly and defines burglary in terms that encompass but exceed the parameters of the generic definition, the court must move to the second step of the Taylor pavane in order to determine if ‘the particular conviction actually embodied every element of a violent felony.’” Id. at 51 (quoting United States v. Richards, 456 F.3d 260, 262-63 (1st Cir. 2006)). In making the second step inquiry, the court must limit its inquiry to documents “within the carapace of the record of conviction, such as ‘the charging document, the terms of the plea agreement or transcript of the colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or some comparable judicial record of this information.” Id. (quoting Shepard, 544 U.S. at 26).

         C. The First Step: Generic Burglary

         In its April 4, 2016 Order, the Court concluded that the Florida burglary statute under which Mr. Vitko was convicted was broader than the definition of a generic burglary because Florida includes “curtilage” in its definition of “structure.” Order at 24 (citing Fla. Stat. § 810.011(1)). The Court’s conclusion on this point was consistent with binding precedent from the Supreme Court and the First Circuit interpreting this same Florida statute. James, 550 U.S. at 212 (The “inclusion of curtilage takes Florida’s underlying offense of burglary outside the definition of generic burglary set forth in Taylor, which requires an unlawful entry into, or remaining in a ‘building or other structure’”); Sanchez-Ramirez, 570 F.3d at 82 n.7 (“Because Florida’s burglary statute includes curtilage within its reach, and because the documents permissibly reviewed under Shepard . . . do not exclude the possibility that Sanchez was convicted of ‘non-generic’ burglary, we look only to the residual clause”); see United States v. Ramírez, 708 F.3d 295, 304 (1st Cir. 2013) (“[T]he inclusion of ‘curtilage’ makes Florida’s definition of burglary of a dwelling broader than the generic meaning of burglary of a dwelling under the Guidelines”) (career offender analysis).

         The Government does not dispute the Court’s conclusion that the Florida burglary statute is not coextensive with a generic burglary. Gov’t’s Mot. at 2 (“At pages 23 and 24 of its order, the Court correctly pointed out that burglary in violation of Florida Statute section 810.02(1) is not ‘generic burglary’ as Taylor v. United States, 495 U.S. [at 587-99] defines the term”); see Baker v. State, 622 So.2d 1333, 1336 (Fla. 1st Dist. Ct. App. 1993) (“The statutory definition of dwelling or structure, as explained by Professor Jerome Latimer, is the result of the legislature’s ‘desire to expand the offense of burglary from its limited common law application’”) (Ervin, J. dissenting) (quoting Jerome C. Latimer, Burglary Is For Buildings, Or Is It? Protected Structures and Conveyances Under Florida’s Present Burglary Statute, 9 Stetson L. Rev. 347, 348-49 (1979)).

         D. The Second Step: Shepard Documents

         Instead, the Government contends that the Court erred in its analysis of the second step in the ACCA inquiry. Gov’t’s Mot. at 2-6. The Court applies the analytic method for the second step inquiry and addresses the Government’s caselaw arguments.

         1. The Shepard-Approved Charging Instruments

         The Shepard Court held that in assessing the applicability of the ACCA to “non-generic” burglary statutes, when reviewing convictions from a guilty plea, “any enquiry beyond statute and charging document must be narrowly restricted to implement the object of the statute and avoid evidentiary disputes.” Shepard, 544 U.S. at 23 n.4; see also United States v. Miller, 478 F.3d 48, 51 (1st Cir. 2007) (citing Shepard, 544 U.S. at 26). In its motion for reconsideration, the Government points to the seven charging instruments for Mr. Vitko’s Florida burglary convictions. Gov’t’s Mot. at 4-5; Govt’s Mot. for Summ. Disposition of “Mot. under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” Attach. 1 Fla. Convictions, at 1-9 (ECF No. 50) (Fla. Convictions).

         The language of the seven Shepard-approved charging instruments of Mr. Vitko’s burglary convictions is significant. Each differed in subtle ways. The first charging instrument alleged that Mr. Vitko entered “a structure, to-wit: the dwelling house” of the victims:

JAMES T. RUSSELL, State Attorney for the Sixth Judicial Circuit of Florida, in and for Pinellas County, prosecuting for the State of Florida, in the said County, under oath, information makes that MICHAEL VITKO of the County of Pinellas and State of Florida between the 4th day of August, 1979, and the 12th day of August in the year of our Lord one thousand nine hundred seventy-nine, in the County and State aforesaid unlawfully and without invitation or license did enter a structure, to-wit: the dwelling house of Lawrence and Jan Schoenacher, located at 111 Fourth Avenue NW, Largo, Pinellas County, Florida, the property of Lawrence Schoenacher and Jan Schoenacher, his wife, with intent to commit an offense therein, to-wit: ...

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