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Cases No. 5:03cr40-RH/GRJ and 5:15cv132-RH/GRJ

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA

v. CASES NO. 5:03cr40-RH/GRJ

5:16cv132-RH/GRJ

KENNETH LESTER BAXLEY,

Defendant.

______________________________/

ORDER DENYING THE § 2255 MOTION AND

GRANTING A CERTIFICATE OF APPEALABILITY

The issue is whether the defendant’s Georgia battery convictions are violent 

felonies within the meaning of the armed career criminal statute, 18 U.S.C. 

§ 924(e). The government has filed Shepard-approved documents making clear

that, under the law of the circuit, the answer is yes. 

I

The defendant Kenneth Lester Baxley pleaded guilty to possessing a firearm 

as a convicted felon in violation of 18 U.S.C. § 922(g)(1). The maximum sentence 

for violating § 922(g)(1) is ordinarily 10 years in prison. See id. § 924(a)(2). But if

the defendant is an armed career criminal—that is, if the defendant has three 
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Cases No. 5:03cr40-RH/GRJ and 5:15cv132-RH/GRJ

previous convictions “for a violent felony or a serious drug offense, or both, 

committed on occasions different from one another”—the minimum sentence is 15 

years, and the maximum is life. See id. § 924(e).

Under the law of the circuit as in effect when Mr. Baxley was sentenced, he 

was an armed career criminal. The minimum mandatory sentence was 15 years. 

Mr. Baxley was sentenced to 189 months.

II

Mr. Baxley has filed a motion under 28 U.S.C. § 2255 for relief from the

sentence based on Johnson v. United States, 135 S. Ct. 2551 (2015), which 

significantly narrowed the category of convictions qualifying as violent felonies. 

Johnson is retroactively applicable on collateral review. See Welch v. United 

States, 136 S. Ct. 1257 (2016). The § 2255 motion is before the court on the 

magistrate judge’s report and recommendation, Mr. Baxley’s objections, and the 

additional materials that have been filed more recently, as discussed below.

Mr. Baxley had a prior conviction for resisting arrest with violence—a 

violent felony. He had numerous prior convictions for burglary in Florida. Each 

was a qualifying “violent felony” under the law of the circuit when Mr. Baxley was 

sentenced. But under the law as it has developed, those are not qualifying violent 

felonies. Mr. Baxley is now an armed career criminal only if his two prior Georgia

burglary convictions are violent felonies.
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Cases No. 5:03cr40-RH/GRJ and 5:15cv132-RH/GRJ

At the time of those convictions, the relevant Georgia burglary statute 

applied to entering, without authority and with intent to commit a felony, any of 

these: “(1) dwelling house, or (2) building, vehicle, railroad car, watercraft, or 

other such structure designed for use as a dwelling, or (3) any other building, 

railroad car, aircraft, or any room or any part thereof.” United States v. Gundy, 842 

F.3d 1156, 1165 (11th Cir. 2016). A conviction under this statute is a qualifying 

“violent felony” under § 924(e) if based on the first alternative—a dwelling 

house—and apparently if based on entering a building described in the second or 

third alternatives. But a conviction is not a qualifying violent felony if based on 

entering a vehicle, railroad car, watercraft, or other structure of that kind, even 

though designed for use as a dwelling. 

III

Under Gundy, the question whether Mr. Baxley’s Georgia burglary 

convictions were for entering a dwelling house or building, not just a vehicle or 

other such structure, is properly determined under the “modified categorical 

approach” outlined in Shepard v. United States, 544 U.S. 13, 26 (2005). See 

Gundy, 842 F.3d at 1168. This allows a court “to look to ‘a limited class of 

documents (for example, the indictment, jury instructions or plea agreement and 

colloquy) to determine what crime, with what elements, a defendant was convicted 
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Cases No. 5:03cr40-RH/GRJ and 5:15cv132-RH/GRJ

of.’ ” Id. (quoting Shepard, 544 U.S. at 26). These are sometimes referred to as 

“Shepard-approved documents.”

When the report and recommendation was entered, the record included no 

Shepard-approved documents establishing the basis of Mr. Baxley’s Georgia 

battery convictions. The order of June 21, 2017, ECF No. 39, afforded the 

government an opportunity to supply such documents, if they existed. In response, 

the government filed Shepard-approved documents resolving this issue in its favor. 

In each Georgia case, Mr. Baxley was charged with entering a “dwelling house”—

the first alternative under the Georgia burglary statute. Under Gundy, committing a 

burglary in Georgia by entering a dwelling house is a violent felony.

Mr. Baxley’s only response is that Gundy was wrongly decided. He has 

preserved the issue for appeal. But a district court, like an Eleventh Circuit panel, 

must follow the law of the circuit. Mr. Baxley is not entitled to relief in this court.

IV

When a district court denies a § 2255 motion, it should grant or deny a 

certificate of appealability. The defendant must obtain a certificate of appealability 

as a prerequisite to an appeal. See 28 U.S.C. § 2253(c)(1). A court may issue a 

certificate of appealability only if the defendant “has made a substantial showing 

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). See Miller-El v. 

Cockrell, 537 U.S. 322, 335-38 (2003) (explaining the meaning of this term); Slack 
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Cases No. 5:03cr40-RH/GRJ and 5:15cv132-RH/GRJ

v. McDaniel, 529 U.S. 473, 483-84 (2000) (same); Barefoot v. Estelle, 463 U.S. 

880, 893 n.4 (1983); see also Williams v. Taylor, 529 U.S. 362, 402-13 (2000). As 

the Court said in Slack:

 To obtain a COA under § 2253(c), a habeas prisoner must make a 

substantial showing of the denial of a constitutional right, a 

demonstration that, under Barefoot, includes showing that 

reasonable jurists could debate whether (or, for that matter, agree 

that) the petition should have been resolved in a different manner 

or that the issues presented were “adequate to deserve 

encouragement to proceed further.”

529 U.S. at 483-84 (quoting Barefoot, 463 U.S. at 893 n.4). 

Reasonable jurists could not debate whether Mr. Baxley’s § 2255 motion is 

unfounded under Gundy, that is, under the existing law of the circuit. But 

reasonable jurists, including the one who dissented in Gundy, could disagree. And 

a colorable certiorari petition is pending. In the last few years the Supreme Court

has disapproved more than one career-offender circuit precedent. The issue under 

§ 2253(c) is whether an issue is fairly debatable and so could eventually be 

resolved in the defendant’s favor—not just at the first level of review, but upon en 

banc or Supreme Court review. This order grants a certificate of appealability. 

V

For these reasons, 

IT IS ORDERED:

1. The report and recommendation, ECF No. 37, is accepted.
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Cases No. 5:03cr40-RH/GRJ and 5:15cv132-RH/GRJ

2. The § 2255 motion, ECF No. 21, is denied. 

3. The clerk must enter judgment. 

4. A certificate of appealability is granted on this issue: whether the 

defendant’s Georgia burglary convictions are for violent felonies within the 

meaning of the armed career criminal statute, 18 U.S.C. § 924(e). 

SO ORDERED on August 10, 2017.

s/Robert L. Hinkle

United States District Judge