UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

v. Case Nos. 3:11cr48/MCR/EMT

3:14cv408/MCR/EMT

ZACHARY T. FREY

/

ORDER

This matter is before the Court on the Chief Magistrate Judge’s Report and 

Recommendation dated July 12, 2017. See ECF No. 79. The parties have been 

furnished a copy of the Report and Recommendation and have been afforded an 

opportunity to file objections pursuant to Title 28, United States Code, Section 

636(b)(1). Having conducted the required de novo review of Petitioner’s objections, 

the Court finds that the Report and Recommendation should be adopted.1 

 

1 Frey claims he is entitled to resentencing pursuant to Johnson v. United States, 135 S. Ct. 

2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career 

Criminal Act (“ACCA”) is unconstitutionally vague, and Welch v. United States, 136 S. Ct. 1257 

(2016), in which the Supreme Court held that Johnson applies retroactively on collateral review. 

See ECF Nos. 69, 72. To prove a Johnson claim in the Eleventh Circuit when the sentencing 

record does not specify which clause of the ACCA formed the basis for a defendant’s sentencing 

enhancement, the defendant bears the burden of proving that he was “more likely than not” 

sentenced under the residual clause. Beeman v. United States, -- F.3d --, 2017 WL 4210419, at *5

(11th Cir. Sept. 22, 2017). In this case, Frey has not even attempted to carry this burden and the 

parties seem to simply assume that the Court relied on the residual clause in sentencing him. No

one raised any argument regarding application of the career offender guideline at Frey’s 

sentencing; to the contrary, defense counsel expressly stated that Frey “qualif[ied]” for the ACCA 

sentencing enhancement based on “the number of burglaries that he had [been convicted of 

committing] on separate occasions.” See ECF No. 54 at 5 (emphasis added). The Court has 

reviewed the docket in this case—including the Presentence Investigation Report, as well as the 

official transcripts for Frey’s change of plea and sentencing hearings, ECF Nos. 34, 50, 54—and 
Page 2 of 3

Case No. 3:11cr48/MCR/EMT

Case No. 3:14cv408/MCR/EMT

To address Petitioner’s substantive objection, the Court agrees with the Chief 

Magistrate Judge’s conclusion that United States v. Perry, 862 F.3d 620 (7th Cir. 

2017), though not binding authority in the Eleventh Circuit, is well-reasoned, highly 

persuasive and directly on point with the question presented in this case—whether 

Frey’s Indiana burglary convictions qualify as “violent felonies” under the Armed 

Career Criminal Act (“ACCA”). In Perry, the Seventh Circuit answered this 

question in the affirmative, holding that Indiana’s definition of burglary “is nearly 

identical to that of ‘generic’ burglary” and that Indiana’s criminalization of entry 

into areas “wholly enclosed” by a fence does not take its burglary statute outside the 

definition of generic burglary for purposes of the ACCA. See id. at 622-23. No case 

in the Supreme Court or the Eleventh Circuit compels a different conclusion. 

 

finds it questionable whether Frey actually was sentenced under the residual clause of the ACCA, 

given that his prior burglary convictions so clearly qualified as “violent felonies” under the 

ACCA’s enumerated offenses clause. Nonetheless, in light of the posture of this case and the 

Chief Magistrate’s Report and Recommendation resolving it on the merits, this Court has 

considered the substance of Frey’s § 2255 motion. To the extent Frey has argued that his trial 

counsel was ineffective for failing to object to application of the career offender enhancement

under the enumerated offense clause of the ACCA, his argument has no merit because the law 

supported application of that provision at the time he was sentenced. See ECF No. 60. To the 

extent Frey argues ineffective assistance of trial counsel for failing to object to the enhancement 

under the residual clause, his claim fails because Johnson had not yet been decided when he was 

sentenced. See id. Therefore, the residual clause was still valid and there would have been no 

legal basis for objecting to its application in Frey’s case. See e.g., Denson v. United States, 804 

F.3d 1339, 1342 (11th Cir. 2015) (counsel not ineffective for failing to make an argument which, 

at the time, had it been made, would have had no legal support); Lattimore v. United States, 345 

F. App’x 506, 508 (11th Cir. 2009) (counsel not ineffective for failing to make a meritless 

objection to an obstruction enhancement).
Page 3 of 3

Case No. 3:11cr48/MCR/EMT

Case No. 3:14cv408/MCR/EMT

Accordingly, it is ORDERED:

1. The Chief Magistrate Judge’s Report and Recommendation, ECF No. 

79, is ADOPTED and incorporated by reference in this Order.

2. Petitioner’s Motion to Correct Sentence Under 28 U.S.C. § 2255, ECF 

No. 69, is DENIED.

3. Petitioner’s request for a certificate of appealability is DENIED.

DONE and ORDERED this 25th day of September, 2017.

M. Casey Rodgers

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE