Owens v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SEAN JUSTIN OWENS,

Petitioner,

vs. Case No.: 3:22-cv-549-MMH-PDB

3:18-cr-30-MMH-PDB

UNITED STATES OF AMERICA,

Respondent.

___________________________________/

ORDER

This cause is before the Court on Petitioner Sean Justin Owens’s pro se

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

Sentence (Civ. Doc. 17; Amended § 2255 Motion)1 with a memorandum of law

(Civ. Doc. 18; Memorandum). Owens is challenging a conviction for possession

of a firearm by a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(e). See

Crim. Doc. 36, Jury Verdict. The United States responded in opposition (Civ.

Doc. 23; Response), and Owens replied (Civ. Doc. 26; Reply). Owens moved to

submit a supplemental claim (Civ. Doc 28; Supplemental Motion); the Court

1 “Civ. Doc. ___” refers to docket entries in this § 2255 case, No. 3:22-cv-549-

MMH-PDB. “Crim. Doc. ___” refers to docket entries in Owens’s criminal case, No.

3:18-cr-30-MMH-PDB.

granted the Supplemental Motion and directed the United States to respond to

the Supplement. The United States filed a supplemental response to the new

claim (Civ. Doc. 30; Supplemental Response). Owens filed a supplemental reply

(Civ. Doc. 31; Supplemental Reply). Thus, the case is ripe for decision.

Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255

Proceedings,2 the Court has considered the need for an evidentiary hearing and

determines that a hearing is not necessary to resolve the merits of this action.

No evidentiary hearing is required because Owens’s allegations are

affirmatively contradicted by the record, patently frivolous, or even assuming

the facts he alleges are true, he is still not entitled to relief. See Rosin v. United

States, 786 F.3d 873, 877 (11th Cir. 2015); see also Patel v. United States, 252

F. App’x 970, 975 (11th Cir. 2007).3

I. Background

While on patrol, officers of the Jacksonville Sheriff’s Office observed

Owens illegally park a vehicle on a neighborhood street, exit the vehicle, and

2 Rule 8(a) of the Rules Governing Section 2255 Proceedings expressly requires

the Court to review the record, including any transcripts and submitted materials, to

determine whether an evidentiary hearing is warranted before resolving a § 2255

motion.

3 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. Gov’t Emps. Ins. Co., 30 F.4th 1055, 1060–61 (11th

Cir. 2022); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions

are not considered binding precedent, but they may be cited as persuasive authority.”).

enter a house.4 See Crim. Doc. 67, Trial Transcript, Volume I (Trial Tr. Vol. I)

at 107–08. When Owens did not return to the vehicle, officers ran the tag

number and discovered that the tag was not registered to the vehicle. See id. at

108. An officer approached the driver’s side window and observed a handgun

sitting in the center console. See id. at 110. Officers then conducted an inventory

search of the vehicle, during which they located Owens’s driver’s license on the

floor of the vehicle. See id. at 112. Officers soon determined that at that time,

Owens was a convicted felon. See id. at 130. Owens’s cousin later exited the

house and inquired about the officer’s presence. See id. at 110. The cousin

attempted to locate Owens but discovered he had run out of the house. See id.

at 125. A few hours later, Owens returned to the scene and officers arrested

him. See id. at 112.

In 2018, a federal grand jury indicted Owens with one count of possession

of a firearm by a convicted felon, in violation of §§ 922(g)(1) and 924(e). See

Crim. Doc. 1, Indictment. Owens proceeded to trial where he stipulated that he

had felony convictions, and thus he was prohibited from possessing a firearm.

See Crim. Doc. 29-1, Stipulation. On November 15, 2018, a jury found him guilty

of the charged offense. See Jury Verdict.

4 These facts derive from the trial testimony of Officer Shawn Wolford.

The United States Probation Office determined that Owens qualified as

an “armed career criminal” under the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e), because he had three prior state (Florida) felony convictions

involving the sale or delivery of cocaine that he obtained in 2009.5 See Crim.

Doc. 39, Presentence Investigation Report (PSR) ¶ 18. Based on Owens’s total

offense level (34) and criminal history category (VI), his advisory guidelines

range at sentencing was between 262 and 327 months imprisonment. See id. ¶¶

21, 38, 68. Owens did not object to the PSR. See id., PSR Addendum.

During the sentencing hearing, the then-assigned judge, the Honorable

Henry L. Adams, United States District Judge, adopted the PSR without

objection. See Crim. Doc. 58, Sentencing Transcript at 6–8. To support its

request for a sentencing enhancement, the United States provided the court

with Shepard6 documents to establish Owens’s prior convictions. See id. at 9;

see also Crim. Docs. 41-2, 41-3. Defense counsel requested that the Court

impose a 180-month sentence based on Owens’s history. See id. at 10–16. And

the Court ultimately sentenced Owens to 180-months term of imprisonment.

See Crim. Doc. 42, Judgment.

5 The ACCA imposes an enhanced sentence of 15 years to life in prison for those

convicted of being a felon in possession of a firearm and who have three or more prior

convictions for a “violent felony” or a “serious drug offense,” or both, committed on

occasions different from one another. 18 U.S.C. § 924(e)(1).

6 Shepard v. United States, 544 U.S. 13 (2005).

Owens appealed, arguing that: (1) the United States failed to prove that

he knew he was a felon at the time of the offense; (2) § 922(g) is unconstitutional;

(3) convictions under Florida Statutes, section 893.13, did not qualify as

“serious drug offenses” under the ACCA or “controlled substance offenses”

under the guidelines; (4) his ACCA predicate offenses did not occur on different

occasions; and (5) his sentence violated his rights under the Fifth and Sixth

Amendments. See United States v. Owens, 808 F. App’x. 917, 918 (11th Cir.

2020). The Eleventh Circuit rejected Owens’s arguments and affirmed his

conviction and sentence. See id.

Now, Owens seeks to vacate his conviction under 28 U.S.C. § 2255. In his

Amended § 2255 Motion, Owens asserts that counsel was ineffective when he

failed to: (a) investigate the background of the handgun involved in the offense,

(b) move to dismiss the Indictment based on insufficient evidence, and (c) object

to the jury instructions (Ground One). See Amended § 2255 Motion at 13–14;

see also Memorandum at 1–3. He also contends that the court made comments

to a juror that improperly rushed the proceedings and affected his right to a fair

trial (Ground Two), and that his ACCA enhancement is invalid in light of the

holdings in Wooden7 (Ground Three) and Jackson II8 (Ground Four). See id. at

14–18; see also Memorandum at 3–8. As a supplemental claim for relief, Owens

argues that his conviction is invalid considering the holding in Erlinger9

(Ground Five). See Supplemental Motion. The United States does not challenge

the timeliness or cognizability of Owens’s claims, but it argues that the claims

are procedurally barred and meritless. See Response at 4 –5; Supplemental

Response at 5–6.

II. Governing Law

Under Title 28, United States Code, § 2255, a person in federal custody

may move to vacate, set aside, or correct his sentence. Section 2255 permits

collateral relief on four grounds: (1) the sentence was imposed in violation of

the Constitution or laws of the United States; (2) the court lacked jurisdiction

to impose the sentence; (3) the imposed sentence exceeded the maximum

authorized by law; or (4) the imposed sentence is otherwise subject to collateral

attack. 28 U.S.C § 2255(a). Only jurisdictional claims, constitutional claims,

and claims of error that are so fundamentally defective as to cause a complete

miscarriage of justice will warrant relief through collateral attack. United

7 Wooden v. United States, 595 U.S. 360 (2022).

8 United States v. Jackson (Jackson I), 36 F.4th 1294 (11th Cir. 2022),

superseded by United States v. Jackson (Jackson II), 55 F.4th 846 (11th Cir. 2022),

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

9 Erlinger v. United States, 602 U.S. 821 (2024).

States v. Addonizio, 442 U.S. 178, 184–86 (1979); Spencer v. United States, 773

F.3d 1132, 1138 (11th Cir. 2014) (en banc) (“[A] district court lacks the authority

to review the alleged error unless the claimed error constitute[s] a fundamental

defect which inherently results in a complete miscarriage of justice.” (internal

quotation marks omitted)). The Supreme Court recognizes that a petitioner’s

claim that he was denied the effective assistance of counsel, in violation of the

Sixth Amendment, is properly brought in a collateral proceeding under § 2255.

Massaro v. United States, 538 U.S. 500, 504 (2003).

To establish ineffective assistance of counsel, a § 2255 petitioner must

demonstrate both: (1) that his counsel’s conduct amounted to constitutionally

deficient performance, and (2) that counsel’s deficient performance prejudiced

his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Martin v.

United States, 949 F.3d 662, 667 (11th Cir. 2020). In determining whether the

petitioner has satisfied the first requirement, that counsel performed

deficiently, the Court adheres to the standard of reasonably effective assistance.

Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994) (citing Strickland, 466 U.S.

at 688). The petitioner must show, given all the circumstances, that counsel’s

performance fell outside the “wide range of professionally competent

assistance.” Scott v. United States, 890 F.3d 1239, 1258 (11th Cir. 2018)

(internal quotation marks and citation omitted). In other words, “[t]he standard

for effective assistance of counsel is reasonableness, not perfection.” Brewster

v. Hetzel, 913 F.3d 1042, 1056 (11th Cir. 2019) (citing Strickland, 466 U.S. at

687). To satisfy the second requirement, that counsel’s deficient performance

prejudiced the defense, the petitioner must show a reasonable probability that,

but for counsel’s error, the result of the proceeding would have been different.

Martin, 949 F.3d at 667 (citing Padilla v. Kentucky, 559 U.S. 356, 366 (2010)).

In determining whether a petitioner has met the two prongs of deficient

performance and prejudice, the Court considers the totality of the evidence.

Strickland, 466 U.S. at 695. But because both prongs are necessary, “there is no

reason for a court… to approach the inquiry in the same order or even to address

both components of the inquiry if the defendant makes an insufficient showing

on one.” Id. at 697.

A § 2255 movant “bears the burden to prove the claims in his § 2255

motion.” Rivers v. United States, 777 F.3d 1306, 1316 (11th Cir. 2015); see also

Beeman, 871 F.3d 1215, 1221–22 (11th Cir. 2017). Moreover, a § 2255 movant

is not entitled to a hearing, much less relief, “when his claims are merely

conclusory allegations unsupported by specifics or contentions that in the face

of the record are wholly incredible.” Tejada v. Dugger, 941 F.2d 1551, 1559 (11th

Cir. 1991) (citation omitted).

III. Discussion

A. Ground One10

As Ground One, Owens argues that counsel was ineffective when he failed

to: (a) investigate the background of the handgun involved in the offense; (b)

move to dismiss the Indictment based on insufficient evidence; and (c) object to

the jury instructions. See Amended § 2255 Motion at 4, 13–14; see also

Memorandum at 1–3.

Subclaims (a) & (b)—Failure to investigate and move to dismiss

Owens argues that trial counsel was ineffective when he failed to “hire a

forensics expert” to investigate the handgun’s ownership or the circumstances

of the offense. See Amended § 2255 Motion at 13. He also alleges that counsel

should have moved to dismiss the Indictment based on insufficient evidence.

See id. at 14.

The Court turns first to subclaim (a). “[C]omplaints of uncalled witnesses

are not favored, because the presentation of testimonial evidence is a matter of

trial strategy and because allegations of what a witness would have testified

are largely speculative.” Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.

10 In its Response, the United States identifies Owens’s claims as Ground One

(subclaims a through c), Ground Four, Ground Five, and Ground Six. See Response at

9–19. Owens adopts this numbering in his Reply. See Reply at 3. Given the parties’

agreement, the Court will number Owens’s claims in the same manner.

1978).11 Indeed, “evidence about the testimony of a putative witness must

generally be presented in the form of actual testimony by the witness or on

affidavit. A defendant cannot simply state that the testimony would have been

favorable; self-serving speculation will not sustain an ineffective assistance

claim.” United States v. Ashimi, 932 F.2d 643, 650 (7th Cir. 1991) (footnotes

omitted).

Here, Owens neither specifically identifies a helpful forensics witness, nor

provides an affidavit or proffer of testimony that any such unnamed witness

would have provided during trial. Owens offers no evidence that even if the

unidentified witness had testified, the testimony provided would have affected

the outcome of trial, and thus he fails to demonstrate prejudice under

Strickland. Because “self-serving speculation” that the witnesses’ testimony

would have been favorable “will not sustain an ineffective assistance claim,”

Ashimi, 932 F.2d at 650, Owens is not entitled to relief on the claim in subclaim

(a).

As to subclaim (b), the Eleventh Circuit has held that a motion for

acquittal under Rule 29, Federal Rules of Criminal Procedure (Rule(s)), is the

proper method for contesting the sufficiency of evidence in a criminal case

11 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),

the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth

Circuit handed down prior to the close of business on September 30, 1981.

because the Rules provide no explicit authority to grant a pretrial motion to

dismiss contesting the sufficiency of the evidence. See United States v. Salman,

378 F.3d 1266, 1268 (11th Cir. 2004) (per curiam). Therefore, if trial counsel

had filed any such pretrial motion, it would have been without merit. Counsel

was not deficient when he failed to file a meritless motion.12 See Freeman v.

Att’y Gen., 536 F.3d 1225, 1233 (11th Cir. 2008) (“A lawyer cannot be deficient

for failing to raise a meritless claim.”). And Owens was not prejudiced by that

failure. See United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (per

curiam) (“[A] lawyer’s failure to preserve a meritless issue plainly cannot

prejudice a client.”). Accordingly, relief on subclaims (a) and (b) of Ground One

is due to be denied.

Subclaim (c)—Failure to object to the jury instructions

Owens argues that his trial counsel was ineffective when he failed to

object to the jury instructions because the instructions did not require the jury

to determine whether his prior Florida convictions occurred on different

occasions. See Amended §2255 Motion at 14; see also Memorandum at 2–3. At

the time of Owens’s trial, the Eleventh Circuit had determined that the ACCA’s

different-occasions determination need not be submitted to a jury and proven

12 Notably, counsel moved for acquittal after the close of all evidence at trial,

and the Court denied the motion. See Crim. Doc. 63, Trial Transcript, Volume II at

3–4.

beyond a reasonable doubt. See United States v. Weeks, 711 F.3d 1255, 1259

(11th Cir. 2013), abrogated on other grounds by Descamps v. United States, 570

U.S. 254 (2013). Rather, for ACCA purposes, a district court could consider

Shepard documents to determine both the existence of prior convictions and the

factual nature of those convictions, including whether they were committed on

different occasions. See id. However, in 2024, four years after Owens’s

conviction and sentence were affirmed on direct appeal, the United States

Supreme Court issued its opinion in Erlinger, holding that, in compliance with

Apprendi v. New Jersey, 530 U.S. 466 (2000), the Fifth and Sixth Amendments

require a jury, not a judge, to determine whether a defendant’s predicate

offenses under ACCA were committed on separate occasions. Erlinger, 602 U.S.

at 834–35.

Here, under Eleventh Circuit precedent at the time of Owens’s trial, the

jury was not required to make a different-occasions determination. and thus the

Court’s use of the standard jury instructions at that time, which omitted any

such direction, was proper. As such, any objection on that basis would have been

meritless. And, likely of more import, “reasonably effective representation does

not include a requirement that trial counsel make arguments or objections

based on predictions as to how the law may develop.” Denson v. United States,

804 F.3d 1339, 1343 (11th Cir. 2015) (per curiam). Therefore, trial counsel was

neither deficient for failing to object to the instructions on the basis that Owens

proposes, see Freeman, 536 F.3d at 1233, nor did counsel’s alleged failure affect

the outcome of Owens’s case, see Winfield, 960 F.2d at 974. Based on the above,

relief on subclaim (c) of Ground One is due to be denied.

B. Ground Two

In Ground Two, Owens argues that the Court’s comments to a juror

violated his right to a fair trial. See Amended § 2255 Motion at 14–15; see also

Memorandum at 3–4. Specifically, he alleges that the Court promised to get a

juror “out of here” before the week ended so that the juror could attend a

personal event and reiterated that promise throughout the trial. Id. at 15.

According to Owens, the comments gave “everyone the impression that the trial

should speed up.” Id. Owens did not raise this claim on direct appeal.

Relevant to this claim, “[c]ourts have long and consistently affirmed that

a collateral challenge, such as a § 2255 motion, may not be a surrogate for a

direct appeal.” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per

curiam). “Under the procedural default rule, a defendant generally must

advance an available challenge to a criminal conviction or sentence on direct

appeal,” including constitutional claims, “or else the defendant is barred from

presenting that claim in a § 2255 proceeding.” Id. at 1234. “A defendant can

avoid a procedural bar only by establishing one of two exceptions to the

procedural default rule.” Id. The first is the cause-and-prejudice exception,

under which “a § 2255 movant can avoid application of the procedural default

bar by ‘show[ing] cause for not raising the claim of error on direct appeal and

actual prejudice from the alleged error.’” McKay v. United States, 657 F.3d

1190, 1196 (11th Cir. 2011) (quoting Lynn, 365 F.3d at 1234). The second

exception is actual innocence, under which “a movant’s procedural default is

excused if he can show that he is actually innocent either of the crime of

conviction or, in the capital sentencing context, of the sentence itself.” Id. at

1196. “To show actual innocence of the crime of conviction, a movant ‘must show

that it is more likely than not that no reasonable juror would have found [him]

guilty beyond a reasonable doubt’ in light of the new evidence of innocence.” Id.

(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

Because Owens failed to raise this claim on direct appeal, it is

procedurally defaulted unless he can demonstrate either cause and prejudice or

actual innocence. As cause to excuse his default, Owens makes a conclusory

allegation that appellate counsel was ineffective when he failed to raise the

claim on direct appeal. See Amended § 2255 Motion at 6. “Constitutionally

ineffective assistance of counsel can constitute cause . . . . In order to do so,

however, the claim of ineffective assistance must have merit.” Brown v. United

States, 720 F.3d 1316, 1333 (11th Cir. 2013) (internal citation omitted).

Therefore, the Court will consider the merits of Owens’s ineffectiveness claim.

The record shows that before jury selection, which occurred on a

Wednesday, the United States informed the Court that the trial would not last

longer “than about a day and a half.” Trial Tr. Vol. I at 4. Counsel agreed. See

id. Then, before the announcement of the jury, both parties confirmed that the

trial would not last until Friday. See id. at 83–84. The United States rested its

case at the close of the first day of trial. See id. at 168. Considering both parties’

assessment of the length of trial, Owens fails to show how the Court strayed

from neutrality when it informed a juror that the trial would finish before the

end of the week. See Moore v. United States, 598 F.2d 439, 442 (5th Cir. 1979)

(noting that a court denies a defendant his right to a fair trial when the court’s

conduct “strays from neutrality.”). Because Owens’s claim is without merit,

counsel was not deficient when he failed to raise the issue on direct appeal. For

that same reason, he cannot demonstrate prejudice because the claim would not

have succeeded on appeal. Accordingly, Owens can demonstrate neither cause

nor prejudice to excuse his procedural default.

Owens also fails to show that he can overcome the default under the

actual innocence exception. He does not point to any new evidence of innocence

in the light of which, more likely than not, no reasonable juror would have found

him guilty beyond a reasonable doubt. See McKay, 657 F.3d at 1196. Because

Owens cannot overcome the procedural bar of his claim, relief on the claim in

Ground Two is due to be denied.

C. Ground Three

Owens asserts that his prior convictions under Florida Statutes, section

893.13, do not support his ACCA enhancement because they did not occur on

different occasions. See Amended § 2255 Motion at 15–16; see also

Memorandum at 4–5. To support his claim for relief, he relies on Wooden in

which the Supreme Court reversed the Sixth Circuit’s affirmance of a

defendant’s ACCA sentence based on ten prior burglary convictions. 595 U.S.

at 376. The burglary convictions resulted from breaking into ten storage units

inside the same building, one right after the other, on the same evening. Id. at

363. In its opinion, the Supreme Court rejected the Sixth Circuit’s holding that

the ACCA’s different-occasions provision was satisfied whenever crimes

occurred sequentially instead of simultaneously. Id. at 365. Rather, the

Supreme Court held that an inquiry into whether prior offenses occurred on

separate occasions is multi-factored and requires considering the timing,

location, character, and relationship of the offenses. Id. at 369. It noted “[i]n

many cases, a single factor—especially of time or place—can decisively

differentiate occasions. Courts, for instance, have nearly always treated

offenses as occurring on separate occasions if a person committed them a day or

more apart, or at a ‘significant distance.’” Id. at 369–70 (quoting United States

v. Rideout, 3 F.3d 32 (2d Cir. 1993)).

Owens’s prior convictions occurred on different occasions. Indeed, the

charging documents show that the crimes of conviction were temporally distinct

because he sold cocaine on March 13, 2009; March 17, 2009; and March 20,

2009. See Crim. Doc. 41-2. Therefore, Wooden does not afford Owens any

relief,13 and relief on the claim in Ground Three is denied.

D. Ground Four

Owens alleges his ACCA sentencing enhancement is invalid in light of

Jackson II because his prior convictions under section 893.13 of the Florida

Statutes do not qualify as controlled substance offenses. See Amended § 2255

Motion at 17–18; see also Memorandum at 6–8. Owens raised a substantially

similar claim on direct appeal. The Eleventh Circuit denied relief, stating in

pertinent part:

The district court did not plainly err because Owens’s

argument is foreclosed by our precedent as well as a

recent decision by the Supreme Court. In United States

v. Smith, we explicitly held that a conviction under Fla.

Stat. § 893.13(1) qualifies as a “serious drug offense”

under ACCA and a “controlled substance offense”

under U.S.S.G. § 4B1.2(b). 775 F.3d 1262, 1266–68

(11th Cir. 2014). The Supreme Court recently affirmed

one of our decisions relying on Smith. See Shular v.

United States, [589] U.S. [154], 140 S. Ct. 779, 206

13 Owens mistakenly relies on United States v. Lewis, 833 F. App’x 261 (11th

Cir. 2020), cert. granted, judgment vacated, 142 S. Ct. 1439 (2022). See Amended §

2255 Motion at 15–16. Although the Supreme Court granted Lewis’s petition, vacated

the judgment, and remanded for further consideration in light of Wooden, that does

not convey the Supreme Court’s view on the merits. See Tyler v. Cain, 533 U.S. 656,

666 n.6 (2001) (noting that while an order granting certiorari, vacating, and

remanding may indicate “a ‘reasonable probability’ that the Court of Appeals would

reject a legal premise on which it relied and which may affect the outcome of litigation”

it does not amount to a final determination on the merits). Owens’s speculation that

the result in Lewis on remand will be different and ultimately affect his case does not

warrant relief under § 2255. Indeed, the Eleventh Circuit recently affirmed Lewis’s

conviction and sentence on remand. See United States v. Lewis, No. 19-15076, 2025

WL 2427152, at *5 (11th Cir. Aug. 22, 2025).

L.Ed.2d 81 (2020). Because Smith controls this case, we

reject Owens’s argument on this point.

Owens, 808 F. App’x at 921.

“The district court is not required to reconsider claims of error that were

raised and disposed of on direct appeal. [O]nce a matter has been decided

adversely to a defendant on direct appeal it cannot be re-litigated in a collateral

attack under section 2255.” United States v. Nyhuis, 211 F.3d 1340, 1343 (11th

Cir. 2000) (internal citations and quotation marks omitted). Because the

Eleventh Circuit has already rejected Owens’s argument, the claim in Ground

Four is procedurally barred and due to be denied.

Even if the claim were not procedurally barred, it is still without merit.

To determine whether Owens’s three Florida convictions for the sale of cocaine

in 2009 met the ACCA’s definition of a “serious drug offense,” the Court uses

the “categorical approach.” United States v. Conage, 976 F.3d 1244, 1250 (11th

Cir. 2020). Under that approach, the Court looks to the state offense of which

the defendant was convicted and identifies the elements of that crime. See id.

The categorical approach requires the Court to ignore the facts of the prior

conviction and consider only the elements. See id. The Court then compares the

elements of the state offense with the components of the ACCA’s definition of a

“serious drug offense.” Id. A conviction is a “serious drug offense” only if the

state statute under which the defendant was convicted defines the offense as

narrowly as (or more narrowly than) the ACCA’s definition of a “serious drug

offense.” Id.

As relevant here, the ACCA defines “serious drug offense” to mean “an

offense under State law, involving . . . distributing, or possessing with intent to

. . . 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)(ii). This

definition requires a state crime to meet three criteria:

First, the prior state offense must involve certain

conduct: “manufacturing, distributing, or possessing

with intent to manufacture or distribute.” Second, that

conduct must involve “a controlled substance (as

defined in section 102 of the Controlled Substances Act

(21 U.S.C. [§] 802)).” And third, that conduct involving

a controlled substance must be punishable by a

maximum term of imprisonment of at least ten years.

Jackson II, 55 F.4th at 854 (internal citations omitted). Owens’s claim focuses

on the second component, which requires that “an offense under State law” is a

serious drug offense only if it involves a controlled substance “as defined in

section 102 of the Controlled Substances Act [CSA].” Id.

The federal CSA schedules change frequently, with substances being

added and removed regularly. So, in Jackson II, the Eleventh Circuit had to

determine which version of the federal CSA schedules governs the

determination of whether a prior state drug conviction was an ACCA-qualifying

offense: the version in effect when the defendant was convicted of the prior state

offense or the version in effect when he committed his federal firearm offense.

55 F.4th at 849. Relevant to Jackson II, the United States Attorney General

removed ioflupane (a cocaine analogue) from the federal CSA schedules in

September 2015. Id. at 851 & n.4. The defendant, Eugene Jackson, had been

convicted of cocaine-related offenses under Florida Statutes, section

893.13(1)(a), in 1998 and 2004, when ioflupane was a controlled substance

under both Florida and federal law, but he committed the federal firearm

offense in 2017, after ioflupane had been removed from the federal CSA

schedules. See id. at 850–51 & nn.3–4. The Eleventh Circuit held that the

“ACCA’s ‘serious drug offense’ definition incorporates the version of the

controlled-substances list in effect when the defendant was convicted of his

prior state drug offense.” Id. at 849.

Here, the crucial fact is that Owens was convicted of his ACCA-qualifying

drug offenses involving the sale of cocaine in 2009. See Crim. Doc. 41-2. At that

time, ioflupane was a controlled substance under both Florida law and the

federal CSA schedules. As a result, when Owens was convicted of the prior drug

offenses in 2009, they categorically involved a substance listed in the federal

CSA. Indeed, at that time, Florida law made it “unlawful for any person to sell,

manufacture, or deliver, or possess with intent to sell, manufacture, or deliver,

a controlled substance.” Fla. Stat. § 893.13(1)(a). If the offense involved a

substance listed in section 893.03(2)(a), the offense was a second-degree felony,

id. § 893.13(1)(a)1, punishable by a term of imprisonment not exceeding 15

years, id. § 775.082(3)(d). Schedule II of Florida’s Controlled Substance

Schedules listed “[c]ocaine or ecgonine, including any of their stereoisomers,

and any salt, compound, derivative, or preparation of cocaine or ecgonine.” Id.

§ 893.03(2)(a)4. That description included ioflupane. Jackson II, 55 F.4th at 851

n.3. Because different formulations of the same substance (e.g., cocaine versus

ecgonine) are only “alternative means” of committing the same crime under

Florida law, a court must presume that the offense involved only the least

culpable formulation. See id. at 861 n.9. Accordingly, in Owens’s case, the Court

presumes that his 2009 convictions for sale of cocaine involved ioflupane.

But as noted above, the Attorney General did not remove ioflupane from

the federal CSA schedules until 2015. Owens was convicted in 2009. See Crim.

Doc. 41-3. And the Eleventh Circuit held in Jackson II that the version of the

federal CSA schedules in effect when the defendant was convicted of his prior

state drug offense governs. 55 F.4th at 849. When Owens was convicted of the

prior state drug offenses, Schedule II of the federal CSA schedules included:

(4) coca leaves, except coca leaves and extracts of coca

leaves from which cocaine, ecgonine, and derivatives of

ecgonine or their salts have been removed; cocaine, its

salts, optical and geometric isomers, and salts of

isomers; ecgonine, its derivatives, their salts, isomers,

and salts of isomers; or any compound, mixture, or

preparation which contains any quantity of any of the

substances referred to in this paragraph.

21 U.S.C. § 812(c), Schedule II(a)(4). In 2009, “‘ioflupane was, by definition, a

schedule II controlled substance because it is derived from cocaine via ecgonine,

both of which are schedule II controlled substances.’” Jackson II, 55 F.4th at

851 n.4 (quoting 80 Fed. Reg. 54715). Because the federal CSA schedules still

included ioflupane when Owens was convicted of sale of cocaine in 2009, that

crime categorically involved “a controlled substance (as defined in section 102

of the Controlled Substances Act (21 U.S.C. 802)).” 18 U.S.C. § 924(e)(2)(A)(ii).

And Owens identifies no other substance that his prior cocaine convictions could

have involved that was not included in the 2009 version of CSA’s Schedule II-

substances. Nor does Owens contest whether his prior cocaine convictions

satisfied the other two components of a “serious drug offense,” i.e., that they

involved distributing or possessing with intent to distribute and that the

offenses were punishable by more than 10 years in prison. See 18 U.S.C.

§ 924(e)(2)(A)(ii). As a result, Owens’s 2009 convictions for the sale of cocaine

properly qualified as ACCA “serious drug offenses.”

Insofar as Owens alleges “[d]ue process demands that [he] was required

to receive proper notice of the [ACCA] statutory penalties he could face upon

his conviction,” his claim is without merit.14 Amended § 2255 Motion at 18. The

14 For purposes of its analysis, the Court assumes Owens’s claim is not

procedurally barred.

Indictment provided notice of the United States’s intent to seek enhanced

penalties under the ACCA. See Indictment at 2 (citing § 924(e)). It also listed

five of Owens’s prior Florida convictions as bases for an ACCA enhancement.

See id. at 1–2. Following a jury trial, Owens had the opportunity to object to the

PSR, see PSR Addendum, and present evidence at a sentencing hearing, see

Sentencing Transcript.

To the extent Owens alleges trial counsel was ineffective when he failed

to inform Owens of the ACCA enhancement, he is still not entitled to relief.

Owens speculates that he would have “sought a plea deal” if he had known

about the ACCA enhancement. Amended § 2255 at 18. However, he does not

allege that he would have accepted a plea agreement of guilty or entered a plea

and would not have insisted on going to trial. Merely alleging that he would

have sought a plea deal is insufficient to show that the result of the proceedings

would have concluded differently had he done so. See Rosin, 786 F.3d at 878.

Indeed, the record also supports a contrary conclusion. During the

sentencing hearing, counsel noted that because of the ACCA enhancement, the

defense had intended to stipulate to the facts and waive a trial; however, at the

“last moment,” Owens insisted on proceeding to a trial. See Sentencing

Transcript at 12. Counsel noted he had advised Owens to waive a trial. See id.

at 13. Considering this evidence, Owens was clearly aware of the ACCA

enhancement he faced but his insistence on going to trial showed that there was

no reasonable probability that he would have accepted a plea deal even if the

United States extended an offer to him. Accordingly, Owens is not entitled to

relief on the claim in Ground Four and it is due to be denied.15

E. Ground Five

In his supplemental claim, Owens argues that his ACCA sentencing

enhancement is invalid in light of the new rule announced in Erlinger. See

Supplemental Motion. A newly recognized right applies retroactively on

collateral review only in limited circumstances. Schriro v. Summerlin, 542 U.S.

348, 351 (2004). New substantive rules generally apply retroactively, see id.,

whereas new procedural rules do not, see Edwards v. Vannoy, 593 U.S. 255, 272

(2021).

To determine if Erlinger applies retroactively on collateral appeal, the

Court applies the test set forth in Teague v. Lane, 489 U.S. 288, 301 (1989).

First, the Court must determine whether Erlinger announced a new rule.

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 v. United States, 678 F. 3d 1203, 1208

(11th Cir. 2012).

15 In Ground Four, Owens also seemingly alleges that a jury should have

determined his ACCA enhancement. Insofar as he asserts the jury should have

determined the different-occasions requirement, he is not entitled to relief for the

reasons stated in Ground Five.

Teague recognizes two exceptions to the general prohibition: (1) new

substantive rules and (2) watershed rules of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding. 489 U.S. at 311–

12. 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 post-Teague, the Supreme Court has rejected every

claim that a new procedural rule qualifies as a watershed exception. Edwards,

593 U.S. at 267–68.

Erlinger announced a new rule that a jury must determine whether a

defendant’s predicate offenses under ACCA were “committed on occasions

different from one another.” 602 U.S. at 834–35. However, the new rule does

not fall under either of Teague’s exceptions. Erlinger neither narrowed the

scope of a criminal statute nor placed particular conduct or persons beyond its

reach. Rather, Erlinger altered only “the manner of determining the defendant’s

culpability.” Vannoy, 593 U.S. at 276 (quotations omitted). Such a procedural

rule does “not apply retroactively on federal collateral review.” Id.; see Schriro,

542 U.S. at 353 (finding that decisions requiring that a factual determination

be made by a jury “are prototypical procedural rules”). And it does not appear

that Erlinger is a watershed rule of criminal procedure. Therefore, because the

procedural rule announced in Erlinger is not retroactive on collateral review,

Owens is not entitled to relief on this supplemental claim in Ground Five and

it is due to be denied.

IV. Certificate of Appealability

The undersigned opines that a certificate of appealability is not

warranted. This Court should issue a certificate of appealability only if the

petitioner makes “a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). To make this substantial showing, Owens “must

demonstrate that reasonable jurists would find the district court’s assessment

of the constitutional claims debatable or wrong,” Tennard v. Dretke, 542 U.S.

274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that

“the issues presented were ‘adequate to deserve encouragement to proceed

further,’” Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003) (quoting Barefoot

v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

When a district court has rejected a petitioner’s claims on the merits, the

petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the claims debatable or wrong. See Slack, 529 U.S. at 484.

However, when the district court has rejected a claim on procedural grounds,

the petitioner must show that “jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Id. Upon consideration of the record as a whole, this

Court will deny a certificate of appealability.

Therefore, it is now ORDERED:

1. Petitioner Sean Justin Owens’s Amended Motion Under 28 U.S.C.

§ 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 17) and supplemental

claim (Civ. Doc. 28) are DENIED.

2. The Clerk is directed to enter judgment for the United States and

against Owens, and close the file.

3. If Owens appeals this Order, the Court denies a certificate of

appealability. Because this Court has determined that a certificate of

appealability is unwarranted, the Clerk shall terminate from the pending

motions report any motion to proceed on appeal as a pauper that may be filed.

Such termination shall serve as a denial of the motion.

DONE AND ORDERED at Jacksonville, Florida this 19th day of

September, 2025.

MARCIA MORALES HOWARD

United States District Judge

Jax-9 9/16

C: Counsel of record

Petitioner

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