United States District Court, D. Maine
ORDER ON MOTION FOR RECONSIDERATION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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).
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.” 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).
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
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).
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.
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).
Government’s Motion for Reconsideration
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 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
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.
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)).
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
[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
(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.
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.
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.
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.
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.
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
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
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.
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).
“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).
First Step: Generic Burglary
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
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
Second Step: Shepard Documents
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.
Shepard-Approved Charging Instruments
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)
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: ...