Spears v. United States of America, No. 2:2007cv00648 - Document 189 (M.D. Fla. 2015)
Court Description: OPINION AND ORDER denying 188 motion to amend and/or reconsider. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 7/27/2015. (RKR)
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Spears v. United States of America Doc. 189 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION AARON DESHON SPEARS, Petitioner, v. Case No: 2:07-cv-648-FtM-29SPC UNITED STATES OF AMERICA, Respondent. OPINION AND ORDER This matter comes before the Court on petitioner's Motion to Amend and/or Petitioner Reconsider seeks (Doc. #188) reconsideration filed of on the July 6, Court’s 2015. prior determinations that his second robbery conviction was a violent felony, citing Johnson v. United States, 135 S. Ct. 2551 (2015). Assuming this Court has jurisdiction under Fed. R. Civ. P. 60(b)(6) and/or 60(d), and assuming Johnson is retroactive, the motion is denied. Criminal Johnson found that the residual clause of the Armed Career Act violates unconstitutionally the vague. due process All of clause because petitioner’s it is qualifying predicate convictions were based on the “elements” clause in 18 U.S.C. § 924(e), and none were based upon the residual clause. Therefore Johnson does not impact petitioner’s case. United Dockets.Justia.com States v. Harris, No. 14-2269, F.3d , 2015 WL 4430481, *1 n.1 (8th Cir. July 21, 2015). Accordingly, it is hereby ORDERED: Petitioner's Motion to Amend and/or Reconsider (Doc. #188) is DENIED. IT IS FURTHER ORDERED: A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN FORMA PAUPERIS ARE DENIED. A certificate of appeal is required for an appeal of any denial of a Rule 60(b) motion for relief from a judgment in a 28 U.S.C. § 2255 proceeding. 510 F.3d 1290, 1294 (11th Cir. 2007). Williams v. Chatman, “A [COA] may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, Petitioner “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), or that “the issues presented were adequate to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)(citations omitted). Petitioner has not made the requisite showing in these circumstances. - 2 - Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. DONE and ORDERED at Fort Myers, Florida, this of July, 2015. Copies: Aaron DeShon Spears Counsel of Record - 3 - 27th day
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