[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 13999 Non

- Argument Calendar

________________________ D.C. Docket No s . 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: 1 of 62 § 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 di strict 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 th us , 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 issue s : (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 a ppeal, Morris answers these questions in the affirmative, and the government concedes Johnson ’s retroactivity , and that an erroneous ACCA sentence violates due process. N onetheless , the government argues that we need not address the constitutional issue b ecause

Case: 12-13999 Date Filed: 04/16/2013 Page: 2 of 63 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 1 289, 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 clai ms 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 i s 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 imped iment 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 recognize d 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 exercis e of due

Case: 12-13999 Date Filed: 04/16/2013 Page: 3 of 64 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 th at 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 condu ct 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 offens e, 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). Case: 12-13999 Date Filed: 04/16/2013 Page: 4 of 65 maximum. See Gilbert v. United States , 640 F.3d 1 293, 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 an other 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 batter y 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, Joh nson 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

Case: 12-13999 Date Filed: 04/16/2013 Page: 5 of 66 erroneous ACCA sentence violates due process. The district court did not decide wheth er Morris’s felony

- battery conviction constitutes a violent felony, and we deem it appropriate that the district court decide th at issue in the first instance. Accordingly, after review ing 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. Case: 12-13999 Date Filed: 04/16/2013 Page: 6 of 6