# Stackhouse v. United States

> District Court, M.D. Florida · December 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10757353

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 9, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10757353

## How later opinions describe it (automated extraction)

- discussing Fla. Stat. § 812.13(1)
- explaining that counsel is not required to anticipate legal developments
- explaining that when a statute lists “elements in the alternative, and thereby define[s] multiple crimes,” the “modified categorical approach” is used

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10757353. Public record. Not legal advice.