              Case: 12-13999     Date Filed: 04/16/2013    Page: 1 of 6


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-13999
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket Nos. 8:10-cv-00972-SCB-TBM,
                          8:08-cr-00289-SCB-TBM-1

JERRY JAMES MORRIS, JR.,



                                                                Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                               Respondent-Appellee.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (April 16, 2013)

Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Appellant Jerry Morris, a federal prisoner, appeals the district court’s denial

of his motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C.
              Case: 12-13999     Date Filed: 04/16/2013   Page: 2 of 6


§ 2255. Morris pled guilty to being a felon in possession of a firearm and had prior

Florida convictions for felony battery, aggravated battery, and selling cocaine.

Based upon his prior convictions, the district court concluded that Morris was

subject to the statutory-minimum penalty of 15 years’ imprisonment under the

Armed Career Criminal Act (“ACCA”) and imposed an equivalent sentence on

February 19, 2009. Morris did not appeal. He thereafter filed the instant motion to

vacate on April 12, 2010, claiming that his felony-battery conviction no longer

qualified as a violent felony under the ACCA pursuant to Johnson v. United States,

559 U.S. 133, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010), and thus, he was no longer

subject to the ACCA’s enhanced penalty. The district court, however, dismissed

Morris’s motion to vacate as untimely after concluding that Johnson has not been

retroactively applied to cases on collateral review.

      The district court subsequently issued a certificate of appealability (“COA”)

and certified two issues: (1) whether Johnson applies retroactively on collateral

review so that Morris timely filed his motion to vacate; (2) and whether an

erroneous ACCA sentence violates due process. On appeal, Morris answers these

questions in the affirmative, and the government concedes Johnson’s retroactivity,

and that an erroneous ACCA sentence violates due process. Nonetheless, the

government argues that we need not address the constitutional issue because




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Morris was properly sentenced under the ACCA inasmuch as his felony-battery

conviction qualifies as a violent felony.

      We review de novo questions of law related to a district court’s denial of a

motion to vacate. Rhode v. United States, 583 F.3d 1289, 1290 (11th Cir. 2009).

The scope of our review is limited by the issues specified in the COA. Id. at

1290-91. A prisoner who is in custody under a federal sentence may move the

district court to vacate, set aside, or correct his sentence if he claims the right to his

release upon the ground that his sentence was imposed in violation of the

constitution or federal law, the district court lacked jurisdiction to impose his

sentence, his sentence exceeded the maximum authorized by law, or his sentence is

otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

      A federal prisoner must file a motion to vacate within one year of the latest

of: (1) the date upon which the underlying judgment of conviction became final;

(2) the date upon which the impediment to making a motion created by the

government in violation of the constitution or federal law is removed, so long as

the prisoner was prevented from making a motion by the government; (3) the date

upon which “the right asserted was initially recognized by the Supreme Court, if

that right has been newly recognized by the Supreme Court and made retroactively

applicable to cases on collateral review;” or (4) the date upon which the facts

supporting the claim “could have been discovered through the exercise of due


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diligence.” Id. § 2255(f). A court other than the Supreme Court may determine

retroactivity under § 2255(f)(3), and, in deciding retroactivity, we apply the

Teague 1 rubric. Figuereo-Sanchez v. United States, 678 F.3d 1203, 1207 (11th

Cir. 2012), cert. denied, 81 U.S. L.W. 3092, (U.S. Feb. 25, 2013) (No. 12-164).

Under that rubric, we first decide whether the Supreme Court announced a new

rule in the decision in question. Id. If so, then we must “determine whether that

new rule satisfies an exception to the general prohibition against the retroactive

application of new rules on collateral review.” Id. at 1208. Teague established

two such exceptions: (1) “new rules that place certain kinds of primary conduct

beyond the reach of criminal law;” and (2) “decisions that announce ‘watershed

rules of criminal procedure.’” Id. (citing Teague, 489 U.S. at 311-12, 109 S. Ct. at

1076).

      A defendant convicted of being a felon in possession of a firearm is

ordinarily subject to a maximum term of 10 years’ imprisonment. 18 U.S.C.

§ 924(a)(2). Under the ACCA, however, that same defendant is subject to a term

of 15 years’ to life imprisonment if he has 3 previous convictions for a violent

felony or a serious drug offense, or both, that were committed on occasions

different from one another. Id. § 924(e)(1). Thus, a defendant who is erroneously

sentenced under the ACCA is necessarily sentenced in excess of the statutory


      1
          Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).
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maximum. See Gilbert v. United States, 640 F.3d 1293, 1319 n.20 (11th Cir. 2011)

(en banc), cert. denied, 132 S.Ct. 1001 (2012).

       In Florida, a person commits a battery if he actually and intentionally

touches or strikes another person against that person’s will, or intentionally causes

bodily harm to another person. Fla. Stat. § 784.03(1)(a). This offense is

punishable by up to five years’ imprisonment if the offender has a prior battery

conviction. Id. § 775.082(3)(d); Fla. Stat. § 784.03(2).

       The Supreme Court decided Johnson on March 2, 2010, and defined the

term “physical force” in the ACCA’s elements clause as meaning “violent force—

that is, force capable of causing physical pain or injury to another person.”

Johnson, 559 U.S. at    , 130 S. Ct. at 1271. A Florida battery offense, however,

only requires the slightest intentional physical contact, and a defendant could

commit the offense through, for example, a non-consensual tap on the shoulder.

See id. at   , 130 S. Ct. at 1269-70 (citation omitted). Accordingly, Johnson held

that a Florida battery offense under § 784.03 does not categorically meet the

elements clause’s physical force requirement, and, therefore, did not categorically

constitute a violent felony under the elements clause. See id. at   , 130 S. Ct. at

1268-74.

       We accept the government’s concessions that Johnson retroactively applies

on collateral review so that Morris timely filed his motion to vacate, and that an


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erroneous ACCA sentence violates due process. The district court did not decide

whether Morris’s felony-battery conviction constitutes a violent felony, and we

deem it appropriate that the district court decide that issue in the first instance.

Accordingly, after reviewing the record and reading the parties’ briefs, we vacate

the district court’s judgment and remand this case for a determination as to whether

Morris was properly sentenced under the ACCA.

      VACATED AND REMANDED.




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