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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA,

vs. Case Nos.: 1:11cr9/RH/GRJ

1:15cv5/RH/GRJ

FREDDIE LOY WALKER, JR.

REPORT AND RECOMMENDATION

This matter is before the court upon Petitioner’s Second Amended 

“Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence

by a person in Federal Custody” (ECF No. 146), and the Government’s 

response thereto. (ECF No. 151.) After a review of the record and the 

arguments presented, the court concludes that Petitioner’s § 2255 motion 

should be denied. See Rules 8(a) and (b) Governing Section 2255 Cases. 

BACKGROUND

Petitioner was charged in a single count indictment with possession 

of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) and 

924(e), and convicted after a jury trial. (ECF Nos. 1, 88.) 

The Presentence Investigation Report (“PSR”) reflects that Petitioner

was an Armed Career Criminal whose total offense level was 34 and criminal 

history category was VI. (ECF No. 103.) The offenses supporting the 
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Case Nos.: 1:11cr9/RH/GRJ; 1:15cv5/RH/GRJ

Armed Career Criminal Act (“ACCA”) enhancement were not specifically 

identified. However, the PSR reflects that Petitioner had three prior 

convictions for resisting an officer with violence, two of which occurred on 

the same day, and one conviction for aggravated battery, a lesser included 

offense of attempted second degree murder (ECF No. 103, PSR ¶¶ 30, 35, 

40). The applicable guidelines range was 262 to 327 months. The court 

sentenced Petitioner at the low end of this range, to a term of 262 months 

imprisonment. (ECF No. 123 at 29, 40; ECF No. 108.) Petitioner’s 

conviction and sentence were affirmed on appeal. (ECF No. 131.)

Petitioner timely filed a motion to vacate pursuant to 28 U.S.C. § 2255, 

which he thereafter amended, twice. (ECF Nos. 133 & 144. It is the 

second amended motion that is currently pending before the court. (ECF 

No.146.) As his sole claim for relief, Petitioner contends that he is entitled 

to sentencing relief pursuant to Johnson v. United States, 135 S. Ct. 2551 

(2015). The Government opposes the motion. 

ANALYSIS

Under the Armed Career Criminal Act, (“ACCA”), a person who has 

three previous convictions for a violent felony, a serious drug offense, or 
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Case Nos.: 1:11cr9/RH/GRJ; 1:15cv5/RH/GRJ

both is subject to a mandatory minimum fifteen-year sentence. 18 U.S.C. 

§ 924(e)(1). The statutory definition of a violent felony under the ACCA is 

an offense that either:

(i) has as an element the use, attempted use, or threatened use of 

physical force against the person of another [known as the 

elements clause] or 

(ii) is burglary, arson, or extortion, involves the use of explosives 

[known as the enumerated offenses clause] or otherwise 

involves conduct that presents a serious potential risk of 

physical injury to another [known as the residual clause].” 

18 U.S.C. § 924(e)(2)(B)(i) and (ii). In Johnson v. United States, 135 S. 

Ct. 2551 (2015), the Supreme Court ruled that the ACCA’s “residual 

clause” was unconstitutionally vague. Johnson, 135 S. Ct. at 2563. The 

Court did not call into question the remainder of the ACCA’s definitions of a 

violent felony. Id.

Petitioner alleges, without elaboration or citation to the record, that 

the district court relied upon the residual clause of the ACCA to enhance 

his sentence. Petitioner is mistaken. Even if he were not, each of his 

ACCA predicate offenses qualified, and still qualifies, as a violent felony 

under the ACCA’s elements clause. See In re Hires, 825 F. 3d 1297, 1301 

(11th Cir. 2016) (aggravated battery is an ACCA predicate under the 
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Case Nos.: 1:11cr9/RH/GRJ; 1:15cv5/RH/GRJ

elements clause); In re Rodgers, 1325 F. 3d 1335, 1341 (11th Cir. 2016) 

(same); United States v. Hill, 799 F.3d 1318, 1322 (11th Cir. 2015) 

(resisting an officer with violence is an ACCA predicate under the elements 

clause). Therefore, Petitioner is not entitled to sentencing relief, and his 

motion should be denied. 

CERTIFICATE OF APPEALABILITY

Rule 11(a) of the Rules Governing Section 2255 Proceedings provides 

that “[t]he district court must issue or deny a certificate of appealability when 

it enters a final order adverse to the applicant,” and if a certificate is issued 

“the court must state the specific issue or issues that satisfy the showing

required by 28 U.S.C. § 2253(c)(2).” A timely notice of appeal must still be 

filed, even if the court issues a certificate of appealability. Rule 11(b), § 

2255 Rules.

After review of the record, the court finds no substantial showing of the 

denial of a constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 

473, 483–84 (2000) (explaining how to satisfy this showing) (citation 

omitted). Therefore, it is also recommended that the court deny a certificate 

of appealability in its final order.
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Case Nos.: 1:11cr9/RH/GRJ; 1:15cv5/RH/GRJ

The second sentence of Rule 11(a) provides: “Before entering the final 

order, the court may direct the parties to submit arguments on whether a 

certificate should issue.” If there is an objection to this recommendation by 

either party, that party may bring this argument to the attention of the district 

judge in the objections permitted to this report and recommendation.

Based on the foregoing, it is respectfully RECOMMENDED that:

1. The Second Amended “Motion under 28 U.S.C. § 2255 to 

Vacate, Set Aside, or Correct Sentence by a person in Federal Custody”

(ECF No. 146) should be DENIED.

2. A certificate of appealability should be DENIED.

IN CHAMBERS at Gainesville, Florida, this 22nd day of May, 2017.

/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge 

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed 

within fourteen (14) days after being served a copy thereof. Any different deadline 

that may appear on the electronic docket is for the court’s internal use only, and 

does not control. A copy of objections shall be served upon all other parties. If 

a party fails to object to the magistrate judge's findings or recommendations as to 

any particular claim or issue contained in a report and recommendation, that party 

waives the right to challenge on appeal the district court's order based on the 

unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 

636.