Brian D. Williams, Petitioner-Appellant,
United States of America, Respondent-Appellee.
Remand from the En Banc Court of the United States Court of
Appeals for the Sixth Circuit. United States District Court
for the Northern District of Ohio at Cleveland. Nos.
1:06-cr-00244-1; 1:16-cv-00520-Solomon Oliver Jr., District
Before: MERRITT, MOORE, and ROGERS, Circuit Judges.
NELSON MOORE, CIRCUIT JUDGE.
case returns to us on remand from our en banc court in light
of the en banc court's decision in United States v.
Burris, 912 F.3d 386 (6th Cir. 2019) (en banc). Since we
last addressed Petitioner-Appellant Brian Williams's
collateral attack on his federal sentence under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e); see Williams v. United States, 875 F.3d 803
(6th Cir. 2017), and while granting Williams's petition
for rehearing en banc, 882 F.3d 1169 (6th Cir. 2018), our
court has raised concerns regarding Williams's ability to
raise a cognizable motion for relief under 28 U.S.C. §
2255 in light of various provisions constraining collateral
review. In this opinion, per the en banc court's remand,
we address those concerns in light of the comprehensive
argument before the en banc court and then proceed to address
the merits of Williams's motion in light of
Burris. Because Williams qualifies for review under
§ 2255 and because no ACCA provision justifies his
sentence, we VACATE Williams's sentence
and REMAND for resentencing.
Williams's Conviction for Ohio Felonious Assault
early 2000, Williams was indicted for, pleaded guilty to, and
was convicted of attempted felonious assault in violation of
Ohio Rev. Code § 2903.11(A). R. 39-3 (State Indictment
and Journal Entry) (Page ID #227-28); R. 48-1 (State
Sentencing Tr. at 7-8, 11) (Page ID #389-90, 393). Ohio Rev.
Code § 2903.11(A) provides:
person shall knowingly do either of the following:
(1) Cause serious physical harm to another . . .;
(2) Cause or attempt to cause physical harm to another . . .
by means of a deadly weapon or dangerous ordnance.
law in turn defines "serious physical harm," as
included in § 2903.11(A)(1), to include "[a]ny
mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric
treatment." Ohio Rev. Code § 2901.01(A)(5)(a). As
Williams points out, none of the Shepard documents
surrounding that conviction, see Shepard v. United
States, 544 U.S. 13, 26 (2005), makes clear which of the
two prongs of § 2903.11(A) Williams was convicted of
having violated. Appellant's Br. at 16. The Government
does not dispute this characterization of the
Williams's Sentencing as an Armed Career
2006, Williams was indicted for, pleaded guilty to, and was
convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) in the U.S. District
Court for the Northern District of Ohio. R. 1 (Indictment)
(Page ID #3-4); R. 19 (Judgment at 1) (Page ID #39). The ACCA
applied then (and continues to apply) to anyone convicted of
violating § 922(g) who "has three previous
convictions . . . for a violent felony." 18 U.S.C.
§ 924(e)(1). The probation department recommended that
Williams be sentenced as an armed career criminal under the
ACCA, and the sentencing judge, Judge Dowd, agreed.
See R. 18 (Sentencing Mem. Op. at 4) (Page ID #37);
R. 25 (Sentencing Tr. at 2) (Page ID #116); Presentence
Report ("PSR") at 1, 7-8. Williams's 2000
conviction for attempted felonious assault under Ohio Rev.
Code § 2903.11(A) was one of the three prior convictions
on which the probation department-and, ultimately, Judge
Dowd-based this conclusion. See PSR at 1, 7-8;
see also R. 1 (Indictment) (Page ID #3-4).
time, the ACCA defined "violent felony" to include
any felony punishable by over one year of imprisonment that
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another
["elements clause"]; or
(ii) is burglary, arson, or extortion, involves use of
explosives ["enumerated-crimes clause"], or
otherwise involves conduct that presents a serious potential
risk of physical injury to another ["residual
clause"] . . . .
18 U.S.C. § 924(e)(2)(B). The parties agree that neither
Judge Dowd nor probation specified the grounds on which
Williams's 2000 conviction qualified as an ACCA predicate
and that nothing else in the sentencing record sheds further
light. See Appellant's Br. at 41; Appellee's
Br. at 5, 53. Williams was sentenced to 180 months in prison.
R. 19 (Judgment at 2) (Page ID #40).
Prior § 2255 Petitions and Intervening Legal
soon began seeking postconviction relief. In 2007, he moved
pro se to vacate his sentence under 28 U.S.C. § 2255,
claiming ineffective assistance of counsel, lack of federal
jurisdiction for failure to satisfy the interstate-commerce
element, and double jeopardy. R. 21 (2007 Mot. to Vacate at
4-7) (Page ID #55-58). The district court denied his motion.
R. 29 (Dist. Ct. Op. & Order) (Page ID #185-87).
2010, Williams again moved pro se to vacate his sentence
under § 2255. In that motion, he maintained that §
924(e)(1) did "not apply to him," arguing that at
least one of his prior convictions did not "fit the
criteria for application [of the] 924(e)(1) enhancement"
and citing the Supreme Court's recent ruling that the
ACCA's "phrase 'physical force' means
violent force." See R. 31 (2010 Mot.
to Vacate at 1-2) (Page ID #191-92); Curtis Johnson v.
United States ("Johnson I"), 559 U.S.
133, 140 (2010). Williams also argued that the sentence
imposed on him violated United States v. Booker, 543
U.S. 220 (2005), and his right to a jury trial. R. 31 (2010
Mot. to Vacate at 2-3) (Page ID #192-93). The district court
transferred the motion to this court for authorization to
file a second or successive motion, R. 32 (Transfer Order)
(Page ID #195), and we denied Williams's request, R. 33
(2010 CA6 Order) (Page ID #196-97).
2012, a panel of our court ruled in United States v.
Anderson, 695 F.3d 390 (6th Cir. 2012), that felonious
assault under Ohio Rev. Code § 2903.11(A) qualifies as a
violent felony under the ACCA's elements clause.
Id. at 402. The following year, a separate panel
ruled that aggravated assault under Ohio Rev. Code §
2903.12(A), which is functionally "identical" to
the felonious assault statute, Anderson, 695 F.3d at
402, qualifies as a violent felony under the ACCA's
residual clause. United States v. Perry, 703 F.3d
906, 910 (6th Cir. 2013). Our court did not cite
Anderson in that decision.
2013, Williams again sought authorization from our court to
file a second or successive motion under § 2255,
"seeking to pursue the following grounds for relief: (1)
ineffective assistance of counsel during plea bargaining; and
(2) the unconstitutional application of 18 U.S.C. §
922(g)(1) to his case." R. 34 (2013 CA6 Order) (Page ID
#199-200). We again denied his request. Id. (2013
CA6 Order at 2) (Page ID #200).
2014, Williams filed a third pro se motion in the district
court under § 2255. R. 35 (2014 Mot. to Vacate at 1)
(Page ID #201). In that motion, Williams argued that
Descamps v. United States, 570 U.S. 254 (2013), was
retroactive and had established that his having been
sentenced under the ACCA was "in conflict with the jury
trial right as explained in Apprendi v. New Jersey,
530 U.S. 466 (2000)." R. 35 (2014 Mot. to Vacate at 1)
(Page ID #201). The district court denied his motion. R. 36
(Dist. Ct. Order at 2) (Page ID #206).
Johnson II and the § 2255 Petition at Issue Here
2015, in Samuel Johnson v. United States
("Johnson II"), 135 S.Ct. 2551 (2015), the
Supreme Court ruled that the residual clause of the ACCA was
unconstitutionally vague. Id. at 2557. In March
2016, this time represented by counsel, Williams moved (again
in the district court) to vacate his sentence under §
2255 in light of the Supreme Court's due-process-based
ruling in Johnson II. R. 39 (2016 Mot. to Vacate at
1, 3) (Page ID #210, 212). That April, the Supreme Court
clarified that Johnson II was "a substantive
decision and so has retroactive effect . . . in cases on
collateral review." Welch v. United States, 136
S.Ct. 1257, 1265 (2016). The district court, meanwhile,
transferred Williams's § 2255 motion to this court,
R. 42 (Transfer Order) (Page ID #240-41), and this court,
noting that "much has changed in the four years since we
decided Anderson," granted Williams
authorization, R. 43 (2016 CA6 Order at 4, 6) (Page ID #245,
247). Both we and the district court, however, rejected
Williams's claim on the merits, reasoning that
Anderson had not been abrogated and thus remained
controlling, regardless of its ultimate wisdom. See
Williams, 875 F.3d at 807 (opinion of Rogers, J.);
id. (Moore, J., concurring in the judgment); R. 49
(Dist. Ct. Order at 14) (Page ID #410). Our court granted
rehearing en banc, 882 F.3d 1169 (6th Cir. 2018), and later
issued letters directing the parties to address in their
briefing the court's ability to entertain Williams's
clearly second-in-time-and potentially duplicative-motion for
postconviction relief under § 2255. See Doc. 33
(Letter of Mar. 9, 2018); Doc. 34 (Letter of Mar. 20, 2018).
Oral argument was heard by the en banc court on June 13,
2018, during which time we probed both parties further on the
issues raised by our briefing letters.
same day, we also heard oral argument en banc in
Burris, in which we probed in more detail whether
felonious assault under Ohio Rev. Code § 2903.11(A)(1)
qualifies as a violent felony under the ACCA or (for our
purposes identical) elements clause of the United States
Sentencing Guidelines ("Guidelines" or
"U.S.S.G"). Compare U.S.S.G. §
4B1.2(a)(1), with 18 U.S.C. § 924(e)(2)(B)(i).
In our recently released Burris decision, the en
banc court reasoned that Ohio Rev. Code § 2903.11(A)(1)
is a categorical mismatch with the ACCA's and
Guidelines' elements clauses, notwithstanding
Anderson. Following that decision, the en banc court
in this (Williams) case ruled that Anderson
has been overruled and remanded this case to our panel for
further proceedings in light of that determination. We thus
proceed to consider Williams's case.
case on remand requires us to consider (1) whether Williams
is entitled to consideration of his claims on collateral
review and, if he is, (2) whether he is in fact entitled to
relief. Answering both questions in the affirmative, we
VACATE Williams's sentence and
REMAND for resentencing.
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214
(codified as amended in scattered sections of the U.S. Code),
was enacted "to further the principles of comity,
finality, and federalism." Williams v. Taylor,
529 U.S. 420, 436 (2000). In order to do that, AEDPA plainly
"restrict[ed] the availability of relief to habeas
petitioners" in general, Felker v. Turpin, 518
U.S. 651, 664 (1996), and it "greatly restrict[ed] the
power of federal courts to award relief to state prisoners
who file second or successive habeas corpus
applications," Tyler v. Cain, 533 U.S. 656, 661
(2001). Nevertheless, despite its clear goals, "in a
world of silk purses and pigs' ears, the Act is not a
silk purse of the art of statutory drafting." Lindh
v. Murphy, 521 U.S. 320, 336 (1997).
provision, 28 U.S.C. § 2254, applies to prisoners in
state custody; another applies to prisoners in federal
custody, 28 U.S.C. § 2255. A third section, 28 U.S.C.
§ 2244, provides broader guidance. For one, that section
allows federal judges to dismiss duplicative habeas claims
brought by federal prisoners that have already been
adjudicated on the merits by a federal court, but it includes
the express caveat "except as provided in section
2255." Id. § 2244(a); see also In re
Hanserd, 123 F.3d 922, 930 (6th Cir. 1997). Second, it
states that "[a] claim presented in a second or
successive habeas corpus application under section 2254 that
was presented in a prior application shall be
dismissed." 28 U.S.C. § 2244(b)(1). Third, it
mandates that prisoners seeking to file a "second or
successive" habeas application first obtain "an
order authorizing the district court to consider the
application," id. § 2244(b)(3)(A), and it
sets out the procedures for obtaining such authorization,
id. § 2244(b)(3)(A)-(D). Fourth, it requires
district courts to "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."
Id. § 2244(b)(4).
2255, meanwhile, refers back to § 2244 in applying the
following provision to federal prisoners:
A second or successive motion must be certified as provided
in section 2244 by a panel of the appropriate court ...