Petition for Writ of Certiorari — Todd Michael Vincent, Petitioner v. United States

f/

<3 &

No.

ORIGINAL

19A794

Supreme Court, U.S.

FILED

APR 0 9 2020

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

Todd Michael Vincent

(Your Name)

— PETITIONER

vs.

United States of America — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

Eleventh Circuit Court of Appeals

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

^Todd Michael Vincent, # 61591-018

(Your Name)

Federal Correctional Complex

P.0, Box 1031 (Low Custody)

(Address)

Coleman, FL 33521-1031

(City, State, Zip Code)

(Phone Number)

QUESTION(S) PRESENTED

Question One

A review of an order denying a Rule 60(b) motion does not involve the

validity of the underlying judgment.

Yet, the Eleventh Circuit, like most

federal circuits, requires a certificate of appealability before a Rule 60(b)

movant may appeal. Nowhere in the governing statutes-----28 U.S.C.

§§ 1291,

2253-----does such a requirement appear.

Is issuance of a certificate of appealability a prerequisite

to appealing the denial of a Rule 60(b) motion?

Question Two

This Court provides that every prisoner is entitled to a complete § 2255

motion, which requires the district court to correctly apply the law. When a

retroactive ruling of this Court demonstrates: (1) that the district court's

earlier timeliness ruling is wrong, and (2) the petitioner's guilty plea was

unknowing and involuntarily, then the § 2255 proceeding's integrity is ruptured.

Does a retroactively-applicable Supreme Court decision that

shows a district court applied the wrong rule constitute an

extraordinary circumstance that entitles a Rule 60(b)(6)

movant to relief from § 2255 judgment?

i.

LIST OF PARTIES

p] All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

United States v. Vincent, Dist. No. 8:14-cr-00436-RAL-TGW-l (M.D. Fla.)

Vincent v. United States, Dist. No. 8:16-cv-01721-RAL-TGW (M.D. Fla.)

Vincent v. United States, No. 18-13880-B (11th Cir.)

ii.

TABLE OF AUTHORITIES

Page

Cases

Adams v. Thaler,

679 F.3d 312 (5th Cir. 2012)

.9

Arthur v. Thomas,

739 F.3d 611 (11th Cir. 2014)

.

Boykin v. Alabama,

395 U.S. 238 (1969)

9

5

Buck v. Davis,

139 S. Ct. 759 (2017)

7, 10

Carley v. Cochran,

369 U.S. 506 (1962)

5

Gonzalez v. Crosby

545 U.S. 524 (2005)

6, 7, 8

Gonzalez v. Sec'y for Dep't of Corr • 9

366 F.3d 1253 (11th Cir. 2004)(en banc)

4

Harbison v. Bell,

556 U.S. 180 (2009)

7

Jackson v. Crosby,

437 F.3d 1290 (11th Cir. 2006)

7

Johnson v. United States,

135 S. Ct. 2551 (2015)

.4, 6

Jones v. Ryan,

733 F.3d 825 (9th Cir. 2013)

8

Ochoa Canales v. Quarterman,

507 F.3d 884 (5th Cir. 2007)

8

Phelps v. Alameida,

569 F.3d 1120 (9th Cir. 2009)

9

Ramirez v. United States,

799 F.3d 845 (7th Cir. 2015)

9

Satterfield v. Dist. Att'y Phil •» et al •»

872 F.3d 152 (3d Cir. 2017)

9

iii.

TABLE OF AUTHORITIES

(Cont.)

Cases

Page

Sessions v. Dimaya,

138 S. Ct. 1204 (2018)

6, 7

Spitznas v. Boone,

464 F.3d 1213 (10th Cir. 2006)

7

Stokes v. Williams,

475 F.3d 732 (6th Cir. 2007)

.9

United States v. Davis,

139 S. Ct. 2319 (June 24, 2019)

5

United States v. Davis,

903 F.3d 483 (5th Cir. 2019)

4, 6

United States v. Dominguez-Benitez,

542 U.S. 74 (2004). . . .

6, 10

United States v. Lambros,

404 F.3d 1034 (8th Cir. 2005)

7

United States v. McCrae,

793 F.3d 392 (4th Cir. 2015) • •

.

.8

United States v. Winkles,

795 F.3d 1134 (9th Cir. 2015)

7

Wilson v. Sec'y Pa. Dep't of Corr •»

782 F.3d 110 (3d Cir. 2015).

8

iv.

TABLE OF CONTENTS

OPINIONS BELOW

1

JURISDICTION

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

3

STATEMENT OF THE CASE

4

REASONS FOR GRANTING THE WRIT

6

CONCLUSION

10

INDEX TO APPENDICES

APPENDIX A ~ Eleventh Circuit Opinion

APPENDIX B - District Court Opinion

APPENDIX C “ Eleventh Circuit Order Denying Rehearing

APPENDIX D" United States Supreme Court Order Granting Extension of Time

APPENDIX E ” Judgment and Commitment

APPENDIX F - 28 U.S.C. § 2255 Motion

APPENDIX G - District Court Denial of § 2255

APPENDIX H - Motion to Vacate under Fed. R. Civ. P. 60

APPENDIX I

- Notice of Appeal of Denial of Rule 60

v.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[x] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

A

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[x] is unpublished.

The opinion of the United States district court appears at Appendix

the petition and is

®___to

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[x] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix-------- to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

The opinion of the _

appears at Appendix

court

to the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

1.

to

JURISDICTION

[x] For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was August 20, 2019

[ ] No petition for rehearing was timely filed in my case.

[x] A timely petition for rehearing was denied by the United States Court of

Appeals on the following date: November 14, 2019

, and a copy of the

order denying rehearing appears at Appendix__9.

[X ] An extension of time to file the petition for a writ of certiorari was granted

to and including APril 12> 2^20___(date) on__January?: 17, 2020 ( (Hate)

in Application No. 19 A 794____

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix_______

[ ] A timely petition for rehearing was thereafter denied on the following date:

______________________ , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date) in

(date) on

to and including____

Application No.__ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

2.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Federal Rule of Civil Procedure 60. Relief from a Judgment or Order

(b) Grounds for Relief from a Final Judgment, Order or Proceeding. On motion and

just terms, the court may relieve a party or its legal representation from a

final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not

have been discovered in time to move for a new trial under Rule 59(b);

(3)

fraud

(whether

previously

called

intrinsic

or

extrinsic),

misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or discharged; it is based on

an earlier judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable; or

(6) any other reason that justifies relief.

3.

STATEMENT OF THE CASE

In 2014 and 2015, the United States indicted and convicted Todd Vincent for

bank robbery, 21 U.S.C. § 2113(a), (d), and for carrying a weapon in furtherance

of the robbery, 18 U.S.C. § 924(c)(l)(A)(ii). (Appx. A at l)(Appx. E). In 2016,

Mr.' Vincent filed a 28 U.S.C. § 2255 motion seeking to vacate his conviction.

(Appx. A at l)(Appx. F). The district court denied the motion as untimely

because Johnson v. United States, 135 S.Ct. 2551 (2015) did not apply to Mr.

Vincent's § 924(c) challenge. (Appx. A at l)(Appx. G).

In 2018, Mr. Vincent brought a Rule 60(b)(4) and (6) motion, claiming that

the district court erred when it held Mr. Vincent's § 2255 motion to be

untimely. (Appx. A at l)(Appx. H). In August, 2018, the district court denied

the Rule 60(b) motion to vacate the § 2255 order. (Appx. B). The district court

concluded that (then) controlling circuit precedent held that the Johnson ruling

did not invalidate 924(c)'s risk-of-force clause, thus the § 2255 was untimely.

(Appx. B).

Mr. Vincent filed a notice of appeal. (Appx. I). On August 20, 2019, the

Eleventh Circuit Court of Appeals refused to hear Mr. Vincent's appeal, since in

its jurisprudence "a [COA] is required for the appeal of any denial of a Rule

60(b) motion for relief from a judgment in a § 2254 or § 2255 proceeding."

(Appx. A at 1-2)(quoting Gonzalez v. Sec'y for Dep't of Corr • 9 366 F.3d 1253,

1263 (11th Cir. 2004)(en banc).

Then, without a COA, and without considering this Court's decision in United

States.v. Davis,

139 S. Ct. 2319 (June 24, 2019), the appeals court denied the

appeal,

granting

without

substantively meritless.

a

COA,

(Appx.

because

in

its

view,

the

appeal

was

A at 2)("even if § 924(c)(3)(B)'s residual

4.

clause was Invalidated, Vincent's conviction under § 924(c) would remain valid

because his bank-robbery conviction qualifies as a crime of violence under §

924(c)(3)(A).").

Mr. Vincent shows that the appeals court twice missed the target: (1) a COA

should not be required to appeal a true Rule 60(b) motion, since it is not a

final § 2255 order; (2) the 924(c)(3)(B) residual clause was invalidated-----the

Eleventh Circuit announced the wrong rule of law, (Appx. A at 2), and (3), most

importantly, given this Court's narrowing of 924(c)(3)(B), the trial and § 2255

records are silent as to whether Mr. Vincent's guilty plea was knowing and

voluntary. That is court and counsel incorrectly informed Mr. Vincent that given

924(c)(3)(B), Mr. Vincent should plead guilty. The extant record is silent as to

whether Mr. Vincent would have pleaded guilty if he had known the risk-of-forceclause was void. As this Court repeatedly holds, a silent record cannot sustain

a guilty-plea-based conviction. United States ▼. Dominguez-Benitez, 542 U.S. 74

(2004); Boykin v. Alabama, 395 U.S. 238 (1969); Carnley ▼. Cochran, 369 U.S. 506

(1962).

Given this Court's controlling decisional and statutory authority, jurists

of reason would find debatable the appellate court's summary disposition at the

COA application.

5.

REASONS FOR GRANTING THE PETITION

1. This Court recognized a dual nature exists of a Rule 60(b)(6) motion,

depending on whether its grounds were procedural challenges or merits

challenges. That obiter dictum created a division in the federal circuits on

whether a certificate of appealability is required in order to appeal the

denial of a Rule 60(b) challenge to a habeas petition. This Court should

answer the question and resolve the circuit split.

At the threshold, Mr. Vincent points out the conflict with the district

court denying his Rule 60(b) motion and

the Eleventh Circuit requiring a

certificate of appealability to appeal the district court ruling.

Mr. Vincent's Rule 60(b) motion presented a classic procedural ground for

relief from judgment. Gonzalez v. Crosby, 545 U.S. 524, n.4 (2005)(statute of

limitations error). Mr. Vincent claimed that the district court erred when it

found his 2016 § 2255 motion untimely, (see Appx. B). Specifically, the district

court concluded that this Court's decision in Johnson v. United States, 135 S.

Ct. 2551 (2015), had no effect on the 18 U.S.C. § 924(c) residual clause. (Appx.

B). In his Rule 60(b) motion, Mr. Vincent argued that the district court was

wrong. In particular, Mr. Vincent pointed out this Court's extending of the

Johnson rule to Sessions v. Dimaya, 138 S. Ct. 1204 (2018). (Appx. A at 1).

Then, Mr. Vincent pointed out that United States v. Davis, 903 F.3d 483 (5th

Cir. 2019), was ascending the appellate ladder specifically to address whether •

the

924(c)

risk

of

force

(residual clause) was unconstitutionally vague.

Nevertheless, the district court denied the Rule 60(b) motion and the appellate

court affirmed. (Appx. A at 1~2).

Of course, the legal premise for the district court's decision was proved

wrong by this Court invalidating 924(c)'s risk-of-force clause. United States v.

Davis, 139 S. Ct. 2319 (2019)(declaring 924(c)'s risk of force clause vague for

the same reason 924(e)'s residual clause was declared void in Johnson, 135 S.

Ct. at 2551).

6.

The appeals court, however, failed to consider this Court's decision in

Davis and chose instead to emphasize Sessions v. Dimaya, 138 S. Ct. 1204, 1211

(2018). (App. A). In doing so, however, the appeals court ran afoul not only of

this Court's decision in Davis, but also this Court's decision in Buck v. Davis,

137 S. Ct. 759 (2017).

The Eleventh Circuit effectively side-stepped the entire appellate process.

First, by requiring Mr. Vincent to apply for a certificate of appealability to

appeal this court's denial of the Rule 60(b) motion; and then second, by

adjudicating

the merits

of

the

appeal

without

issuing

a

certificate

of

appealability. See Buck, 137 S. Ct. at 773 ("by first deciding the merits of an

appeal and then justifying its denial of a COA based on its adjudication of the

actual merits, it is in essence deciding an appeal without jurisdiction.").

Here, the Eleventh Circuit reinforced a circuit split on whether the law

requires a certificate of appealability to appeal the denial of a true Rule

60(b) motion.1 This Court declined to decide whether habeas petitioners must

obtain a COA as a prerequisite to appealing the denial of a Rule 60(b) motion.

See Gonzalez, 545 U.S. at 537 n. 7 (2005). But most courts of appeals have

decided that one is required. See, e.g., United States v. Hinkles, 795 F.3d

1134, 1139 (9th Cir. 2015); Spitznas v. Boone, 464 F.3d 1213, 1217-18 (10th Cir.

2006); Jackson v. Crosby, 437 F.3d 1290, 1294-95 (11th Cir. 2006); United States

v. Lambros, 404 F.3d 1034, 1036 (8th Cir. 2005).

The solidarity of this precedent, however, crumbles with this Court's

decision in Harbison v. Bell, 556 U.S. 180 (2009)(prisoner was not subject to

the requirement of obtaining a COA before bringing an appeal" on an order

denying appointment of a psychiatric expert). That decision has lead the Third,

Fourth, and Ninth Circuits to join the Fifth in questioning the appropriateness

/I That is, a Rule 60(b) motion which challenges "failure to exhaust, procedural default, or statute

of limitations." Gonzalez ▼. Crosby, 545 U.S. at 533-36.

7.

of requiring a COA to appeal a Rule 60(b) order when the Rule 60(b) motion does

not reach the merits of the § 2255* See, e.g., United States v. McCrae, 793 F#3d

392, 399 (4th Cir. 2015); Wilson v. Sec'y Pa. Dep't of Corr • 9 782 F.3d 110, 115

(3d Cir. 2015); Jones v. Ryan, 733 F.3d 825, 832 n.3 (9th Cir. 2013); Ochoa

Canales v. Quarterman, 507 F.3d 884, 886-88 (5th Cir. 2007)(per curiam).

Mr. Vincent should have been able to appeal the denial of the Rule 60(b)(4)

and (6) motions without a certificate of appealability. Mr. Vincent's Rule 60(b)

motion

only

challenged

the

district

court's

timeliness

ruling

(and

an

abandonment by counsel). A claim type that this Court identified as a proper

Rule 60(b) ground. Gonzalez, 545 U.S. at 532, n. 4 (Petitioner is not making a

habeas corpus claim when he or she "merely asserts that a previous ruling which

precluded a merits determination was in error-----for example, a denial for such

reasons as failure to exhaust, procedural default, or statute-of—limitations

bar.").

This Court should address the question it left open in Gonzalez concerning

whether a Rule 60(b) motion requires a certificate of appealability. This Court

should grant Mr. Vincent's petition and issue the writ.

2. This Court has not answered and the federal courts of appeals are divided on

the question of when a change in the law creates an extraordinary

circumstance that pennitsRule 60(b)(6) relief. This Court should address the

question that it has identified but not answered and that divides the courts

of appeals.

This Court pronounced that "[i]t is hardly extraordinary that • • • after

petitioner's case was no longer pending, this Court arrived at a different

interpretation." Thus,

a change in decisional law—alone-wili not create an

extraordinary circumstance for Rule 60(b)(6) purposes. Gonzalez v. Crosby, 545

U.S. 524, 535 (2005).

8.

But

when

that

change

in

law

is

conjoined

with

other

equitable

considerations, then some circuits conclude that relief from the habeas judgment

should

be

granted.

The Third Circuit holds

that when the change in law

implicates actual innocence, then an extraordinary circumstance exists. See

Satterfield v. Dist. Att'y Phil • 9 et al • * 872 F.3d 152, 163-64 (3d Cir. 2017).

The Seventh Circuit concludes that post-conviction attorney abandonment warrants

Rule 60(b)(6) relief. Ramirez v. United States, 799 F.3d 845, 850 (7th Cir.

2015). The Ninth Circuit held that repeated presentation of a claim that was

erroneously rejected by district and appellate court created an extraordinary

circumstance,

once

the

circuit

changed

the

rule

to

the

proposition

the

petitioner had asserted all along. See Phelps v. Alameida, 569 F.3d 1120, 113435 (9th Cir. 2009).

On the other hand, other circuits have taken the position that a change in

the law can never justify Rule 60(b) relief. See Arthur v. Thomas, 739 F.3d 611,

631 (11th Cir. 2014); Adams v. Thaler, 679 F.3d 312, 320-22, n.6 (5th Cir.

2012).

The Sixth Circuit developed a different rule when it concluded that a

change in decisional law may permit reopening if the habeas judgment has not yet

become final. Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007).

In 2016, Mr. Vincent correctly informed the district court this § 2255

motion was timely. Nonetheless, the district court rejected the petition as

untimely. Subsequently, this Court and the Eleventh Circuit held the district

court's 2016 ruling wrong. Yet, the Eleventh Circuit rejects this turn of events

as extraordinary and affirming the denial of Mr. Vincent's Rule 60(b) motion

without permitting an appeal-----denying both a COA and appellate briefing. This

even though Mr. Vincent's substantive claims sound in actual innocence and

structural error associated with a constitutionally infirm guilty plea.

9.

This

Court

should

grant

resolve

certiorari,

the

circuit

split,

and

establish that either a fundamental flaw in the habeas process or a claim

sounding in actual innocence constitute an extraordinary circumstance justifying

Rule 60(b)(6) relief.

CONCLUSION

Mr.

Vincent

presents

this

Court

with

two

questions

this

Court has

identified, but not resolved, and over which the circuit courts of appeals have

divided. Mr. Vincent's petition provides this Court with a proper vehicle to

resolve these questions.

Alternatively, this Court should exercise its supervisory powers and grant

summary

reversal

as

the

Eleventh Circuit's order implicitly violates its

decision in Buck and explicitly conflicts with this Court's ruling in Davis, 139

S. Ct. at 2319; that is, the Eleventh Circuit held that 924(c)'s residual clause

was constitutionally valid.

Respectfully submitted by Todd Michael Vincent on this 7th day of April,

2020.

Todd Michael Vincent

Unit B-3

Reg. No. 61591-018

Federal Correctional Complex

P.0. Box 1031 (Low Custody)

Coleman, Florida 33521-1031

VERIFICATION

Under penalty of perjury pursuant to 28 U.S.C. § 1746, I hereby swear that

the factual allegations and factual statements contained in this document are

true and correct to the best of my knowledge.

Todd Vincent

10.