Summary
noting that the Eleventh Circuit denied 2255(h) applications where the district judge explicitly relied on the enumerated or elements clauses of the ACCA at the time of sentencing
Summary of this case from Leone v. United StatesOpinion
CRIMINAL NO. 03-0120-WS
06-09-2016
UNITED STATES OF AMERICA v. JOHN ALFRED EVANS, Defendant.
ORDER
The parties have filed a joint motion to vacate sentence. (Doc. 63). The parties request the Court to "vacate [the defendant's] sentence" and "resentenc[e] [him] to the low end of the guideline range," which they calculate as 87 months. (Id. at 12, 13). The motion is based on the decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which "h[e]ld that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process." Id. at 2563.
Because the defendant had previously pursued a motion to vacate, (Docs. 40, 59), he was required to obtain certification by a panel of the Eleventh Circuit that his second or successive motion "contain[s] ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2). He has done so. (Doc. 62).
The panel, (Doc. 62 at 4-5), first noted that, according to Welch v. United States, 136 S. Ct. 1257 (2016), "Johnson announced a new rule," id. at 1264, and "Johnson is retroactive in cases on collateral review." Id. at 1268. Simply asserting a retroactive Johnson claim, however, is not enough to obtain certification. Certification under Section 2255(h) must occur "as provided in section 2244," 28 U.S.C. § 2255(h), and Section 2244 permits an appellate court to issue a certification "only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this sub-section." 28 U.S.C. § 2244(b)(3)(C). A defendant thus "must show that he falls within the scope of the new substantive rule announced in Johnson." (Doc. 62 at 4). "In light of the Supreme Court's holdings in Johnson and Welch, federal prisoners who can make a prima facie showing that they previously were sentenced, at least in part, in reliance on the ACCA's now-voided residual clause are entitled to file a second or successive § 2255 motion in the district court." (Id. at 5). Accord In re: Thomas, ___ F.3d ___, 2016 WL 3000325 at *2 (11 Cir. 2016). That is, to obtain appellate certification, a defendant must make a threshold showing, not merely that he was sentenced under ACCA, but that he was sentenced under ACCA based on its now-unconstitutional residual clause.
Importantly, the panel's authorization to file a second or successive motion to vacate is not conclusive as to whether such a motion is proper. Rather, the appellate court's "prima facie" evaluation "is a limited determination, and this Court "is to decide the § 2255(h) issue fresh, or in the legal vernacular, de novo." In re: Moss, 703 F.3d 1301, 1303 (11 Cir. 2013) (internal quotes omitted). If, but only if, the Court in its independent analysis confirms that the requirements of certification are satisfied will it "proceed to considering the merits of the § 2255 motion." (Doc. 62 at 9).
The panel ruled that the defendant had made the necessary prima facie showing. First, the Court determined that the defendant's appeal waiver was no bar, (Doc. 62 at 5-7), for reasons paralleling those given by this Court in its order denying the defendant's first motion to vacate. (Doc. 59 at 2-5). The Court thus has no reason to re-visit that determination.
Second, the panel identified three potential violent felonies in the PSR: (1) third-degree robbery; (2) first-degree assault; and (3) third-degree burglary. The panel assumed the first two convictions constitute violent felonies and focused its attention on the third. In light of Johnson, third-degree burglary cannot be a violent felony under the residual clause. And in light of Descamps v. United States, 133 S. Ct. 2276 (2013), United States v. Howard, 742 F.3d 1334 (11 Cir. 2014), and Mays v. United States, 817 F.3d 728 (11 Cir. 2016), third-degree burglary under Alabama law cannot be a violent felony under the enumerated clause. (Doc. 62 at 8). The panel tentatively concluded that the defendant thus "lacks a third qualifying offense, as required under the ACCA." (Id.).
Like the panel, the parties ignore the assault first and robbery third convictions and train their attention on the burglary third conviction, employing an analysis similar to that of the panel. (Doc. 63 at 3-5). The Court concurs that, in light of Johnson and Welch, the third-degree burglary conviction cannot count as a violent felony under the residual clause, but the Court did not count this conviction as a violent felony under the residual clause. Rather, because burglary is a listed offense, 18 U.S.C. § 924(e)(2)(b)(ii), the Court treated that conviction as a violent felony under the enumerated clause. Such determinations are "not affected by Johnson." In re: Thomas, 2016 WL 3000325 at *3.
It is true that, in light of Descamps, Howard and Mays, sentencing courts can no longer treat third-degree burglary under Alabama law as a violent felony under the enumerated clause. The defendant, however, cannot raise such an objection on a second or successive petition. To fall within Section 2255(h)(2), Descamps must be a "new rule of constitutional law" that the Supreme Court has "made retroactive to cases on collateral review." 28 U.S.C. § 2255(h)(2). According to Mays, Descamps "did not announce a new rule." 817 F.3d at 734. And it was the Eleventh Circuit in Mays, rather than the Supreme Court in Descamps, that declared that Descamps "appl[ies] retroactively in the first post-conviction context." Id. at 730.
The Eleventh Circuit, in its published Thomas opinion, has recently resolved this very point. There, the defendant's critical third conviction was for breaking and entering under Florida law, which was deemed a burglary. The Court agreed that Johnson and Welch would permit a second or successive petition had the district court relied on the residual clause in categorizing the burglary conviction as a violent felony, but it had not; instead, it had relied on the enumerated clause. The defendant could not obtain leave to file a second or successive motion based on Descamps because "Descamps did not announce a new rule of constitutional law as required under § 2255(h)(2)." 2016 WL 3000325 at *3; accord In re: Griffin, ___ F.3d ___, 2016 WL 3003393 at *6 (11 Cir. 2016).
The panel has instructed the Court to determine, "fresh" and "de novo," whether the defendant has satisfied the requirements of Section 2255(h)(2). (Doc. 62 at 8-9). The panel has also reminded the Court that "[a] district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section." 28 U.S.C. § 2244(b)(4).
For the reasons set forth above, the motion to vacate is denied, and any claim presented therein based on Descamps is dismissed.
DONE and ORDERED this 9 day of June, 2016.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE