Stackhouse v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

LEVI STACKHOUSE

v. Case No. 8:15-cr-177-VMC-TGW

8:18-cv-772-VMC-TGW

UNITED STATES OF AMERICA.

_______________________________/

ORDER

This cause is before the Court on Levi Stackhouse’s pro

se 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct

Sentence (Civ. Doc. # 1; Crim. Doc. # 110), filed on March

27, 2018. The United States of America responded on July 24,

2018 (Civ. Doc. # 8), and Stackhouse replied. (Civ. Doc. #

9). Also pending are Stackhouse’s Motion for Appointment of

Counsel (Civ. Doc. # 71), Motion for Prompt Disposition (Civ.

Doc. # 72), and a Request for Oral Arguments and Motion for

Appointment of Counsel (Civ. Doc. # 74). For the reasons that

follow, all Motions are denied.

I. Background

On April 29, 2016, this Court sentenced Stackhouse to

200 months in prison after he pled guilty to one count of

being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924(e)(1). (Crim. Doc. # 90).

Stackhouse received a sentencing enhancement under the Armed

Career Criminal Act (“ACCA”). (Crim. Doc. # 87 at ¶¶ 22-23).

The prior convictions used to support the ACCA enhancement

were: (1) a 1990 New York conviction for first-degree

manslaughter; (2) a 1986 Florida conviction for armed

robbery; (3) a 1987 Florida conviction for sale of cocaine

based on a sale that occurred on April 14, 1987; and (4) a

1987 Florida conviction for sale of cocaine based on a sale

that occurred on April 22, 1987. (Id.).

Stackhouse filed a direct appeal with the Eleventh

Circuit, arguing that his sentence was procedurally and

substantively unreasonable. (Crim. Doc. # 106). The Eleventh

Circuit affirmed. (Id.).

On March 27, 2018, Stackhouse filed a pro se Section

2255 Motion. (Civ. Doc. # 1; Crim. Doc. # 110). In his Motion,

Stackhouse argued that he should not have received the ACCA

enhancement because his prior convictions are not valid ACCA

predicate offenses. (Civ. Doc. # 2 at 2, 3-15). He also argued

that he had received ineffective assistance of counsel

because his trial counsel failed to object to the ACCA

enhancement. (Id. at 2, 16-17). Later, in his reply,

Stackhouse argued that one of his Florida drug convictions –

the 1987 conviction based on the April 22, 1987 sale of

cocaine – was not an ACCA predicate offense because the state

court’s written judgment stated that the conviction was for

a third-degree felony offense. (Civ. Doc. # 9 at 1-2).

In September 2018, the Court stayed this case pending

the United States Supreme Court’s decision in Stokeling v.

United States. (Civ. Doc. # 10). Stackhouse thereafter filed

his first motion for reconsideration, arguing that the Court

committed error under Clisby v. Jones, 960 F.2d 925 (11th

Cir. 1992) (en banc), by failing to resolve all of his claims.

(Civ. Doc. # 11). Specifically, Stackhouse argued that this

Court failed to resolve the issue of “whether a third degree

felony under Florida law constitutes a ‘serious drug

offense.’” (Id. at 1-2, 6). Because the case had been stayed,

the Court denied the first motion for reconsideration without

prejudice. (Civ. Doc. # 12).

In February 2019, this Court denied Stackhouse’s Section

2255 Motion and entered judgment in favor of the Government.

(Civ. Doc. ## 13, 14). Stackhouse filed a second motion for

reconsideration, again arguing that the Court committed

Clisby error, which this Court denied. (Civ. Doc. ## 15, 16).

Stackhouse appealed, and the Eleventh Circuit granted a

certificate of appealability (“COA”) on two issues:1

(1) “Whether [] Stackhouse’s Florida sale-of-cocaine

conviction for conduct that occurred on April 22, 1987,

qualifies as a ‘serious drug offense’ under the [ACCA].”

(2) “Whether counsel was ineffective for failing to

object to Stackhouse’s armed career criminal

designation.”

(Civ. Doc. # 33 at 3).

On July 15, 2021, the Eleventh Circuit issued its order

vacating and remanding this Court’s prior order denying

Stackhouse’s Section 2255 Motion. (Civ. Doc. # 46). The

Eleventh Circuit construed the COA to encompass the

procedural issue of “whether Stackhouse properly raised the

claims that are the subject of the COA [Issue 1], which he

raised for the first time in his reply brief before the

district court.” (Id. at 6). The appellate court wrote:

“Although Stackhouse only raised these issues in his reply,

he nonetheless brought to the district court’s attention (in

his first motion for reconsideration) that he was raising new

1 In its COA order, the Eleventh Circuit determined that a

COA was not warranted on this Court’s determination that

Stackhouse’s Florida drug conviction for conduct on April 14,

1987, was a “serious drug offense” under the ACCA or on its

determination that his Florida armed robbery conviction was

a qualifying violent felony under the ACCA. (Civ. Doc. # 33

at 2).

claims, specifically asserting that the district court had

committed Clisby error by failing to address them.” (Id.).

The Eleventh Circuit also noted that Stackhouse raised the

ineffective-assistance claim in his initial Section 2255

Motion, and that this Court failed to address it. (Id. at 6

n.1).

Accordingly, the Eleventh Circuit vacated and remanded

so that this Court could determine “whether Stackhouse’s

reply brief – together with his motion for reconsideration

reiterating his new arguments – should be treated as a motion

for leave to amend his [Section] 2255 motion.” (Id. at 6-7).

Should this Court reach the merits of the first issue

identified in the COA, the Eleventh Circuit explained that it

would be this Court’s responsibility to address Stackhouse’s

new arguments in the first instance. (Id. at 7). The remand

also included a directive for this Court to address the merits

of Stackhouse’s ineffective-assistance claim. (Id.).

On remand, this Court determined that “Stackhouse’s

reply brief, together with his motion for reconsideration,

should be treated as a motion for leave to amend his Section

2255 Motion.” (Civ. Doc. # 52 at 5). The Court then granted

Stackhouse leave to amend his Section 2255 motion,

“constru[ing] Stackhouse’s amended Motion to include all

claims raised in his original Section 2255 Motion and his

reply brief, which arguments were reiterated in his motions

for reconsideration.” (Id. at 6). The United States filed a

response to the arguments in Stackhouse’s reply brief and

first motion for reconsideration on April 19, 2022. (Civ.

Doc. # 58).

Finally, the Court granted the parties an opportunity to

submit supplemental briefing on two issues: “(1) whether it

is procedurally proper to allow claim amendment at this stage

of the proceedings, and (2) assuming it is procedurally

proper, the merits of Stackhouse’s claim under United States

v. Jackson, 36 F. 4th 1294 (11th Cir. 2022) [(“Jackson I”)].”

(Civ. Doc. # 65). Stackhouse filed a supplemental brief on

July 20, 2022. (Civ. Doc. # 66). The United States responded

on August 11, 2022. (Civ. Doc. # 67). Stackhouse also filed

a motion for leave to file a supplemental reply, which the

Court construed as a reply. (Civ. Doc. ## 68, 69).

Additionally, Stackhouse went on to file various

miscellaneous motions: a Motion for Appointment of Counsel;

a Motion for Prompt Disposition; and a Request for Oral

Arguments and Motion for Appointment of Counsel. (Civ. Doc.

## 71, 72, 74). Likewise, on September 25, 2024, Stackhouse

filed an “Addendum and Supplemental Case Law to Defendant’s

§ 2255 Motion” (Civ. Doc. # 77), in which Stackhouse attempts

to raise a new claim under Erlinger v. United States, 602

U.S. 821 (2024). The United States has responded to that

addendum. (Civ. Doc. # 79).

The Motions are now ripe for review.

II. Analysis

A. Motions to Appoint Counsel and Miscellaneous

Requests

On July 7, 2023, Stackhouse filed a Motion for

Appointment of Counsel. (Civ. Doc. # 71). In that Motion,

Stackhouse requested the appointment of counsel in light of

the Court’s 2021 order allowing Stackhouse “to [a]mend claims

raised in [his] Reply Brief,” the United States Supreme

Court’s grant of certiorari in Brown v. United States, 602

U.S. 101 (2024), and United States v. Jackson, and

Stackhouse’s “motion pending the out[]come of the Supreme

Court[’]s ruling.” (Id. at 1). Subsequently, Stackhouse also

filed a Motion for Prompt Disposition and a Request for Oral

Arguments and Motion for Appointment of Counsel. (Civ. Doc.

## 72, 74).

“There is no Sixth Amendment right to counsel during

collateral attacks on a sentence.” Houston v. United States,

No. 8:12-cv-561-WJC-TBM, 2012 WL 1901511, at *1 (M.D. Fla.

May 25, 2012); see also Pennsylvania v. Finley, 481 U.S. 551,

555 (1987) (“We have never held that prisoners have a

constitutional right to counsel when mounting collateral

attacks upon their convictions, and we decline to so hold

today. Our cases establish that the right to appointed counsel

extends to the first appeal of right, and no further.”

(citations omitted)). “A petitioner may request appointment

of counsel to represent him in his § 2255 proceeding,

however, such appointment is within the Court’s discretion.”

Houston, 2012 WL 1901511 at *1 (citing 18 U.S.C. §

3006A(a)(2)(B)). “Under such circumstances, counsel shall

be appointed upon request of a financially indigent defendant

if the Court determines that ‘the interests of justice so

require.’” Id.

The Court declines to appoint counsel here because the

interests of justice do not require counsel to present

Stackhouse’s arguments on his behalf. Stackhouse’s motions

seeking appointment of counsel are denied. Likewise, because

the Court is able to resolve Stackhouse’s 2255 Motion on the

papers, the Court denies Stackhouse’s request for oral

argument. Finally, Stackhouse’s Motion for Prompt Disposition

(Civ. Doc. # 72) is denied as moot.

B. Section 2255 Motion

Under Section 2255, a prisoner in federal custody may

move to vacate, set aside, or correct his sentence on four

grounds: (1) it was imposed in violation of the Constitution

or laws of the United States; (2) it was imposed without

jurisdiction; (3) it exceeds the maximum authorized by law;

or (4) it is otherwise subject to collateral attack. 28 U.S.C.

§ 2255(a). Stackhouse bears the burden of proving that he is

entitled to relief under Section 2255. See Rivers v. United

States, 777 F.3d 1306, 1316 (11th Cir. 2015) (“[W]e note that

Rivers bears the burden to prove the claims in his § 2255

motion.”).

The Court will address Stackhouse’s arguments that the

ACCA enhancement was incorrectly applied to him and that his

counsel was ineffective for failing to object to the ACCA

enhancement.

1. ACCA Enhancement

The ACCA mandates a fifteen-year minimum sentence for a

defendant, like Stackhouse, who possesses a firearm and

satisfies any of 18 U.S.C. § 922(g)(1)’s conditions while

having at least three qualifying predicate convictions. 18

U.S.C. § 924(e)(1). Under the ACCA, a predicate conviction is

“a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” Id. The

ACCA defines a “serious drug offense” as:

(i) an offense under the Controlled substances Act

(21 U.S.C. 801 et seq.), the Controlled Substances

Import and Export Act (21 U.S.C. 951 et seq.) or

chapter 705 of title 46 for which a maximum term of

imprisonment of ten years or more is prescribed by

law; or

(ii) an offense under State law, involving

manufacturing, distributing, or possessing with

intent to manufacture or distribute, a controlled

substance (as defined in section 102 of the

Controlled Substances Act (21 U.S.C. 802)), for

which a maximum term of imprisonment of ten years

or more is prescribed by law.

18 U.S.C. § 924(e)(2)(A)(i)-(ii).

Under the ACCA, a prior offense is a “violent felony” if

it satisfies the following definition:

(B) the term “violent felony” means any crime

punishable by imprisonment for a term exceeding one

year . . . that —

(i) has as an element the use, attempted use, or

threatened use of force against the person of

another; or

(ii) is burglary, arson, or extortion, involves the

use of explosives, or otherwise involves conduct

that presents a serious potential risk of physical

injury to another . . . .

18 U.S.C. § 924(e)(2)(B).

In Johnson v. United States, the Supreme Court held that

the ACCA’s residual clause — “or otherwise involves conduct

that presents a serious potential risk of physical injury to

another” — of Section 924(e)(2)(B)(ii) is “unconstitutionally

vague,” and that “imposing an increased sentence under the

residual clause . . . violates the Constitution’s guarantee

of due process.” 576 U.S. 591, 604-06 (2015). But Johnson’s

holding has no bearing on the ACCA’s definition of a “serious

drug offense.” United States v. Darling, 619 F. App’x 877,

880 n.5 (11th Cir. 2015).

Courts use two approaches to determine whether a prior

conviction under state law qualifies as an ACCA predicate.

“[T]he categorical approach applies to indivisible statutes,

whereas the modified categorical approach applies to

divisible statutes.” Spaho v. United States Att’y Gen., 837

F.3d 1172, 1177 (11th Cir. 2016); see Mathis v. United States,

579 U.S. 500, 505 (2016) (explaining that when a statute lists

“elements in the alternative, and thereby define[s] multiple

crimes,” the “modified categorical approach” is used). Under

the categorical approach, a conviction qualifies as an ACCA

predicate “only if the state statute under which the defendant

was convicted defines the offense in the same way as, or more

narrowly,” than the ACCA. United States v. Conage, 976 F.3d

1244, 1250 (11th Cir. 2020). Under the modified categorical

approach, courts are permitted to use certain court documents

to determine what crime, with what elements, formed the basis

of the conviction. See Id. at 1250 n.5; Shepard v. United

States, 544 U.S. 13, 26 (2005).

(a) Predicate Offenses

As previously mentioned, Stackhouse received a

sentencing enhancement based on four predicate offenses.

(Crim. Doc. # 87 at ¶ 22). Relevant here, Stackhouse argues

that the ACCA enhancement was unlawful because his sale-of-

cocaine conviction for conduct that occurred on April 22,

1987, supposedly does not qualify as a serious drug offense.

(Civ. Doc. # 9 at 2). Thus, Stackhouse reasons, he “does not

have at least three qualifying predicate offenses.” (Id.).

For his ACCA predicate offenses, Stackhouse must show that,

“more likely than not,” the sentencing court relied on a

predicate conviction that does not qualify and that the court

actually used that conviction to enhance his sentence. Beeman

v. United States, 871 F.3d 1215, 1221-22 (11th Cir. 2017).

Stackhouse’s argument fails. His sale-of-cocaine

conviction for conduct that occurred on April 22, 1987 does

qualify as a serious drug offense. That conviction,

Stackhouse’s other 1987 Florida drug conviction, and his 1990

New York first-degree manslaughter conviction all qualify as

ACCA predicates.2 Therefore, the ACCA sentencing enhancement

was not erroneous.

i. Controlled Substance Offenses

Stackhouse has two predicate controlled substance

offenses: for sale of cocaine to an undercover officer on

April 14, 1987, and for sale of cocaine to an undercover

officer on April 22, 1987. (Crim. Doc. # 87 at ¶¶ 29-30; Civ.

Doc. # 8-1 at 7-20). Stackhouse argues that his sale-of-

cocaine conviction for the April 22, 1987 sale is not a

“serious drug offense” because the written judgment states

that the conviction was for a third-degree felony and,

therefore, his sentence exceeds the ten-year statutory

maximum that would otherwise apply to his felon-in-possession

conviction. (Civ. Doc. # 9 at 1-2). Stackhouse is incorrect.

Both of Stackhouse’s 1987 drug offenses arose because

“Stackhouse sold an undercover deputy with the Sarasota,

Florida, Sheriff’s Office a piece of crack cocaine for $20.”

(Crim. Doc. # 87 at ¶¶ 29-30). The informations for

2 The Court need not investigate Stackhouse’s 1986 armed

robbery offense because this Court has already found three

qualifying ACCA predicates. Even so, robbery under Florida

law, which “has an element of the use of force sufficient to

overcome a victim’s resistance,” categorically qualifies as

a “violent felony” under the ACCA’s elements clause. See

Stokeling v. United States, 586 U.S. 73, 75 (2019) (discussing

Fla. Stat. § 812.13(1)).

Stackhouse’s April 14, 1987 offense and his April 22, 1987

offense state, “CT I SALE OF COCAINE STATUTE: F.S. 893.13”

and “CT II POSESSION OF COCAINE STATUTE: F.S. 893.13.” (Civ.

Doc. # 8-1 at 7). But the information for the April 14, 1987

offense listed “DEGREE: SECOND DEGREE F” under “CT I” and

“DEGREE: THIRD DEGREE F” under “CT II,” while the information

for the April 22, 1987 offense had a blank space after the

word “DEGREE.” (Id.). In the judgment for Stackhouse’s

conviction arising from the April 14, 1987 offense, the

“DEGREE OF CRIME” states “2nd F” for “CT I SALE OF COCAINE”

and “3rd F” for “CT II POSESSION OF COCAINE.” (Id. at 9).

However, the judgment for Stackhouse’s April 22, 1987 drug

offenses states, “3rd F” for both “CT I SALE OF COCAINE” and

“CT II POSESSION OF COCAINE.” (Id. at 16).

In short, Stackhouse’s judgment for the April 22, 1987

offense incorrectly states that sale of cocaine was a third-

degree felony. But that categorization is clearly a

scrivener’s error. See Ashley v. State, 850 So. 2d 1265, 1268

n.3 (Fla. 2003) (defining a scrivener’s error as a written

clerical error that is not “the result of judicial

determination or error”); see also Hope v. Florida, 239 So.

3d 737 (Fla. 5th DCA 2017) (noting that erroneous descriptions

of degree of offenses were scrivener’s errors). Just because

the judgment for the April 22, 1987 offense erroneously lists

sale of cocaine as a third-degree felony, it does not make it

one and it certainly does not enable the Court to ignore the

plain language of the statute. See Hope, 239 So. 3d at 737.

In April 1987, a person who “s[old], purchase[d],

manufacture[d], or deliver[ed], or possess[ed] with intent to

sell, purchase, manufacture, or deliver” cocaine violated

Section 893.13(1)(a)(1). Fla. Stat. § 893.13(1)(a)(1) (1987);

(Civ. Doc. # 8, Attachment B at 2). In April 1987, sale of

cocaine was a second-degree felony, punishable by up to 15

years’ imprisonment — the same as it is today. See Fla. Stat.

§§ 775.082(3)(d), 893.13. Despite the scrivener’s error,

Stackhouse’s sale-of-cocaine conviction for conduct that

occurred on April 22, 1987, is a second-degree felony.

Here, Shepard documents establish that Stackhouse

“unlawfully and feloniously s[old] or deliver[ed]” cocaine on

separate occasions, each occasion forming the basis of

separate informations. See (Civ. Doc. # 8-1 at 7, 14).3 Both

3 Shepard documents are permissible because Fla. Stat §

893.13(1)(a)(1) (1987) is divisible. It “delineates [eight]

discrete alternative elements”: sale, purchase, manufacture,

delivery, possession with intent to sell, possession with

intent to purchase, possession with intent to manufacture,

and possession with intent to deliver. See Spaho v. United

States Atty. Gen., 837 F.3d 1172, 1177 (11th Cir. 2016)

(analyzing, post-Mathis, a recent version of Fla. Stat. §

sale and delivery of cocaine constitute “distributing . . .

a controlled substance[.]” 18 U.S.C. § 924(e)(2)(A)(ii).

Therefore, both of Stackhouse’s drug convictions under Fla.

Stat. § 892.13 — a second degree felony carrying a maximum

sentence of 15 years’ incarceration, Fla. Stat. §

775.082(3)(d) — are “serious drug offense[s].” See United

States v. Smith, 775 F.3d 1262, 1268 (11th Cir. 2014) (holding

that a conviction under Fla. Stat. § 893.13 is a “serious

drug offense” under the ACCA).

Stackhouse’s two sale-of-cocaine convictions are proper

predicates for his ACCA designation.

ii. First-degree Manslaughter Offense

In 1990, Stackhouse was convicted of first-degree

manslaughter with intent, in violation of N.Y. Penal Law §

125.20(1). (Crim. Doc. # 99 at 15). A defendant, like

Stackhouse, is guilty of this offense when “[w]ith intent to

cause serious physical injury to another person, he causes

the death of such person or of a third person.” See N.Y. Penal

Law § 125.20(1). Because the ACCA is concerned with “violent

felon[ies],” the term “physical force” in the force clause of

893.13 that involves the same statutory structure as the

statute’s 1987 version but does not include “purchase” as an

alternative element).

the ACCA means “violent force,” that is, “force capable of

causing physical pain or injury to another person.” Johnson

v. United States, 559 U.S. 133, 134 (2010) (emphasis added).

Based on its elements — (1) the causation of death (2)

by a person intent on causing at least serious physical injury

— New York first-degree manslaughter is categorically a

violent crime because it necessarily involves the use of

violent physical force.4 Even post-Johnson, the Second Circuit

has held that a conviction for New York first-degree

manslaughter is “a categorically violent crime under the

force clause[] of [the] ACCA.” United States v. Scott, 990

F.3d 94, 101 (2d Cir. 2021) (en banc). Because Stackhouse’s

1990 offense falls categorically under the ACCA’s “force”

clause and not the “residual clause,” Johnson is

inapplicable.

Accordingly, Stackhouse’s 1990 conviction for first-

degree manslaughter is a “violent felony” and was properly

treated as an ACCA predicate. Between this manslaughter

conviction and his two Florida serious drug offenses,

4 When deciding whether a conviction constitutes a violent

felony, courts “are bound by federal law when []

interpret[ing] the terms in the ACCA, and [] are bound by

state law when [] interpret[ing] the elements of state-law

crimes.” United States v. Braun, 801 F.3d 1301, 1303 (11th

Cir. 2015).

Stackhouse has at least three predicate offenses. Thus,

Stackhouse’s designation as an armed career criminal was

correct and his 2255 Motion is denied as to this argument.

(b) Jackson I Argument

This Court must also address Stackhouse’s additional

claim under United States v. Jackson, 36 F.4th 1294 (11th

Cir. 2022) (“Jackson I”), vacated 55 F.4th 846, 855 (11th

Cir. 2022), which Stackhouse asserted after the remand from

the Eleventh Circuit. Stackhouse argues that, under Jackson

I, he “is not and never was subject to an ACCA enhancement

based on his prior cocaine-related Fla. Stat. § 893.13

offenses.” (Civ. Doc. # 66 at 6).

Even if the Court were to assume that this argument is

timely and not procedurally defaulted, this claim fails. The

Jackson I opinion upon which Stackhouse solely relies has

been vacated. True, in Jackson I, the Eleventh Circuit held

that, for 18 U.S.C. § 922(g) offenses committed after

September 2015, Florida convictions for cocaine committed

before July 2017 do not qualify as “serious drug offense[s]”

under the ACCA. 36 F.4th at 1304-06. This was because, during

the period between September 2015 and July 2017, the Florida

drug schedule included ioflupane and the federal schedule did

not. Id. The Jackson I court ruled that a district court must

look to the version of the controlled-substances list in

effect when a defendant committed his Section 922(g) firearm

offense, rather than the version in effect at the time of the

earlier state drug offense. Id.

However, on rehearing, the Eleventh Circuit vacated the

Jackson I opinion and held that the inquiry is “backward

looking.” Thus, the ACCA incorporates the version of the

controlled-substances list in effect when a defendant was

convicted of his prior state drug offense. See United States

v. Jackson, 55 F.4th 846, 855 (11th Cir. 2022) (“Jackson II”),

aff’d sub nom. Brown v. United States, 602 U.S. 101 (2024).

As Jackson II explained, because a federal drug offense

“incorporat[es] the version of the Controlled Substances Act

(and thus the federal controlled-substances schedules) in

effect at the time the defendant’s prior [] drug conviction

occurred,” the ACCA’s use of the Controlled Substances Act to

define prior federal and state “serious drug offense[s]” also

incorporates the version of the federal drug schedules in

effect at the time of his prior conviction. Id. at 858-59.

The Supreme Court has affirmed Jackson II and adopted this

“backward looking” approach, cementing the rejection of

Jackson I’s reasoning. See Brown, 602 U.S. at 111, 123 (“[W]e

hold that a state drug conviction counts as an ACCA predicate

if it involved a drug on the federal schedules at the time of

that offense. Accordingly, we affirm the judgments of the

Courts of Appeals.”).

In short, the controlled-substances schedule in effect

when Stackhouse committed the firearm offense has no

application to his previous state drug convictions for ACCA

purposes. Only the controlled-substances schedule in effect

at the time of Stackhouse’s state court drug offenses applies.

Jackson II, 55 F.4th at 858. Stackhouse committed his Florida

cocaine offenses in 1987 — prior to ioflupane’s removal from

the federal drug schedule in 2015. Id. at 857-59. So, when

Stackhouse was convicted for his sale-of-cocaine offenses in

1987, there was no conflict between the federal and state

drug schedules. Thus, Stackhouse’s argument, which depends on

Jackson I’s application, fails. His 2255 Motion is denied as

to this claim.

(c) Addendum and Erlinger

In his recently filed addendum, Stackhouse raises yet

another new claim. (Civ. Doc. # 75). He argues that, under

the Supreme Court’s recent decision in Erlinger v. United

States, 602 U.S. 821 (2024), this Court must “vacate his

sentence and order a jury to determine whether [his predicate]

offenses meet the ACCA requirement[]” of occurring on

separate occasions. (Id. at 2).

In Erlinger, the Supreme Court held that, under Apprendi

v. New Jersey, 530 U.S.466 (2000), the question of whether

predicate offenses occurred on separate occasions is a

question of fact that must be determined by a unanimous jury

beyond a reasonable doubt. 602 U.S. at 834–35. “Judges may

not assume the jury’s factfinding function for themselves,

let alone purport to perform it using a mere preponderance-

of-the-evidence standard.” Id. at 834.

“There is no dispute that Erlinger, which was decided

after [Stackhouse’s] sentencing and direct appeal, holds that

the different occasions inquiry must be decided by a jury. As

such, the question is whether Erlinger requires

[Stackhouse’s] sentence to be vacated or corrected without

the ACCA enhancement.” Grant v. United States, No. 8:24-cv-

2029-WFJ-CPT, 2024 WL 4729193, at *2 (M.D. Fla. Nov. 8, 2024).

The Court finds that it does not. The Court agrees with the

United States that “Erlinger is not retroactive.” Id.

“Generally, a newly recognized right applies

retroactively on collateral review only in limited

circumstances.” Id. at *3 (citing Schriro v. Summerlin, 542

U.S. 348, 351 (2004)). And “[n]ew procedural rules do not

apply retroactively on federal collateral review.” Edwards v.

Vannoy, 593 U.S. 255, 272 (2021). “[A] court other than the

Supreme Court may determine retroactivity under §

2255(f)(3).” Steiner v. United States, 940 F.3d 1282, 1289

(11th Cir. 2019) (quoting Figuereo-Sanchez v. United States,

678 F.3d 1203, 1207 (11th Cir. 2012)).

“To determine if Erlinger applies retroactively, the

Court applies the test set forth in Teague v. Lane, 489 U.S.

288, 301 (1989).” Grant, 2024 WL 4729193 at *3. “First, the

Court must determine whether Erlinger announced a new rule.”

Id. Second, the Court must “determine whether that new rule

satisfies an exception to the general prohibition against the

retroactive application of new rules on collateral review.”

Figuereo-Sanchez, 678 F. 3d at 1208.

“The Supreme Court has identified two exceptions to this

general prohibition on retroactive application of new rules

on collateral review.” Grant, 2024 WL 4729193, at *3. The two

exceptions are for (1) new substantive rules and (2)

“‘watershed rules of criminal procedure’ implicating the

fundamental fairness and accuracy of the criminal

proceeding.” Schiro, 542 U.S. at 351-52. Substantive rules

are “rules forbidding criminal punishment of certain primary

conduct” and “rules prohibiting a certain category of

punishment for a class of defendants because of their status

or offense.” Montgomery v. Louisiana, 577 U.S. 190, 198

(2016). The “watershed” exception is extraordinarily rare,

and the Supreme Court has not recognized a single post-Teague

rule as a “watershed” exception. Edwards, 593 U.S. at 264.

“The Teague inquiry easily leads to the conclusion that

Erlinger announced a new rule of criminal procedure that is

not retroactive.” Ursery v. United States, No. 3:22-CV-00776,

2024 WL 4652209, at *4 (M.D. Tenn. Nov. 1, 2024). “While

Erlinger announced a new rule because (at the time of

[Stackhouse’s] conviction) district courts routinely decided

whether a defendant’s three qualifying ACCA convictions were

committed on different occasions, the new rule does not fall

under either of Teague’s exceptions.” Grant, 2024 WL 4729193

at *3. “Erlinger’s new requirement that only a jury can

consider the ACCA’s occasions inquiry is not a ‘substantive

rule’ because it only alters ‘the manner of determining the

defendant’s culpability.’” Id. (quoting Vannoy, 593 U.S. at

276). “Such a procedural rule does ‘not apply retroactively

on federal collateral review.’” Id. (quoting Vannoy, 593 U.S.

at 276).

“Therefore, because the procedural rule announced in

Erlinger is not retroactive on collateral review,

[Stackhouse] is not entitled to relief under Section 2255.”

Grant, 2024 WL 4729193 at *4; see also Erlinger, 602 U.S. at

859 n.3 (Kavanaugh, J., dissenting) (“For any case that is

already final, the Teague rule will presumably bar the

defendant from raising today’s new rule in collateral

proceedings.”); Goff v. United States, No. 3:22-CV-00215,

2024 WL 4701882, at *7 (M.D. Tenn. Nov. 6, 2024) (“Because

the rule announced in Erlinger is not retroactive on

collateral review, Petitioner is not entitled to relief under

Section 2255 on this basis.”); McAdams v. United States, No.

23–CV–04081–ESK, 2024 WL 4100368, at *4 (D.N.J. Sept. 6, 2024)

(“Erlinger did not address which convictions qualified as

eligible convictions pursuant to U.S.S.G. § 4A1.2(e)(1), nor

did it make its holding retroactively applicable to cases on

collateral review.”); United States v. Casares-Cuevas, No.

3:12-CR-00038-HDM-VPC, 2024 WL 4216017, at *2 (D. Nev. Sept.

17, 2024) (“[T]he defendant has not identified any case – and

the court has found none – holding that any right initially

recognized in Erlinger is retroactively applicable on

collateral review.”).

2. Ineffective Assistance of Counsel

Stackhouse also raises an ineffective-assistance-of-

counsel claim for failure to challenge the ACCA enhancement.

(Civ. Doc. # 2 at 3). His claim fails on the merits.

To prevail on a claim of ineffective assistance of

counsel, a petitioner must show that (1) his counsel’s

performance was deficient, and (2) the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). To establish deficient performance,

Stackhouse must demonstrate by a preponderance of the

evidence “that particular and identified acts or omissions of

counsel ‘were outside the wide range of professionally

competent assistance.’” Chandler v. United States, 218 F.3d

1305, 1314 (11th Cir. 2000) (citation omitted). In other

words, Stackhouse must show that “no competent counsel would

have taken the action that his counsel did take.” Id. at 1315.

In deciding whether an attorney’s performance was deficient,

courts are “highly deferential” and “indulge [the] strong

presumption that counsel’s performance was reasonable and

that counsel made all significant decisions in the exercise

of reasonable professional judgment.” Id. at 1314 (internal

quotation marks omitted).

To satisfy Strickland’s second prong — prejudice —

Stackhouse must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466

U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

Importantly, counsel cannot be ineffective for failing

to make predictions about the development of the law. See

Denson v. United States, 804 F.3d 1339, 1343 (11th Cir. 2015)

(explaining that counsel is not required to anticipate legal

developments); see also Cooks v. United States, 461 F.2d 530,

532 (5th Cir. 1972) (“Of course, counsel’s inability to

foresee future pronouncements which will dispossess the court

of power to impose a particular sentence which is presently

thought viable does not render counsel’s representation

ineffective.”). Further, “‘[a]n attorney cannot be held

liable for following the plain terms of a statute when there

are not compelling circumstances to suggest [otherwise,]’

even [if] a court later decides that interpretation is

erroneous.” Smith v. Singletary, 170 F.3d 1051, 1054 (11th

Cir. 1999) (quoting Cianbro Corp. v. Jeffcoat & Martin, 804

F. Supp. 784, 790 (D.S.C. 1992)).

Counsel’s performance here was not deficient. As

discussed in a previous section, the ACCA enhancement was

properly applied to Stackhouse because he had at least three

ACCA predicate offenses. See Smith, 775 F.3d at 1268 (holding

that a conviction under Fla. Stat. § 893.13 is a “serious

drug offense” under the ACCA); Scott, 990 F.3d at 101 (“In

sum, after reviewing the matter en banc, this court identifies

New York first-degree manslaughter as a categorically violent

crime under the force clauses of ACCA and the Career Offender

Guideline.”). Because the ACCA enhancement was appropriate,

counsel was not deficient for failing to object to the ACCA

enhancement. See Card v. Dugger, 911 F.2d 1494, 1520 (11th

Cir. 1990) (“Counsel cannot be labeled ineffective for

failing to raise issues which have no merit.”). And Stackhouse

was not prejudiced by that failure. See United States v.

Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“[A] lawyer’s

failure to preserve a meritless issue plainly cannot

prejudice a client.”).

The Court notes that, rather than raising a meritless

objection to the ACCA enhancement, defense counsel presented

strong mitigating arguments on Stackhouse’s behalf and

advocated for a minimum mandatory 180-month sentence. (Crim.

Doc. # 99 at 10-19). Although Stackhouse’s counsel could not

rewrite his criminal history, his counsel effectively

persuaded this Court to impose a sentence significantly lower

than the 235-month sentence sought by the United States. (Id.

at 5-8).

In short, Stackhouse has failed to prove his claim of

ineffective assistance of counsel and his 2255 Motion is

denied.

III. Evidentiary Hearing

A habeas corpus petitioner is entitled to an evidentiary

hearing “if he alleges facts which, if proven, would entitle

him to relief.” Futch v. Dugger, 874 F.2d 1483, 1485 (11th

Cir. 1989). However, a “federal district court need not

conduct an evidentiary hearing if it can be conclusively

determined from the record that the petitioner was not denied

effective assistance of counsel.” Dickson v. Wainwright, 683

F.2d 348, 351 (11th Cir. 1982).

Stackhouse failed to meet his burden of establishing the

need for an evidentiary hearing. See Birt v. Montgomery, 725

F.2d 587, 591 (11th Cir. 1984) (en banc) (“The burden is on

the petitioner in a habeas corpus proceeding to establish the

need for an evidentiary hearing”); see also Hernandez v.

United States, 778 F.3d 1230, 1232-33 (11th Cir. 2015) (“To

establish that he is entitled to an evidentiary hearing,

Hernandez has to allege facts that would prove both that his

counsel performed deficiently and that he was prejudiced by

his counsel’s deficient performance.”). Because Stackhouse’s

claims lack merit, no evidentiary hearing is required.

IV. Certificate of Appealability and Leave to Appeal In

Forma Pauperis Denied

The Court declines to issue a certificate of

appealability because Stackhouse has failed to make a

substantial showing of the denial of a constitutional right

as required by 28 U.S.C. § 2253(c)(2). Nor will the Court

authorize Stackhouse to proceed on appeal in forma pauperis

because such an appeal would not be taken in good faith. See

28 U.S.C. § 1915(a)(3). Stackhouse shall be required to pay

the full amount of the appellate filing fee pursuant to

Section 1915(b)(1) and (2).

Accordingly, it is

ORDERED, ADJUDICATED, and DECREED:

(1) Levi Stackhouse’s pro se 28 U.S.C. § 2255 Motion to

Vacate, Set Aside, or Correct Sentence (Civ. Doc. # 1;

Crim. Doc. # 110) is DENIED.

(2) Levi Stackhouse’s Motion for Appointment of Counsel

(Civ. Doc. # 71), Motion for Prompt Disposition (Civ.

Doc. # 72), and a Request for Oral Arguments and Motion

for Appointment of Counsel (Civ. Doc. # 74) are DENIED.

(3) The Clerk is directed to enter judgment for the United

States of America and to CLOSE this case.

DONE and ORDERED in Chambers in Tampa, Florida, this 9th

of December, 2024.

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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