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Williams v. United States

United States Court of Appeals, Sixth Circuit

June 11, 2019

Brian D. Williams, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          On 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 Judge.

          Before: MERRITT, MOORE, and ROGERS, Circuit Judges.

          OPINION

          KAREN NELSON MOORE, CIRCUIT JUDGE.

          This 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.

         I. BACKGROUND

         A. Williams's Conviction for Ohio Felonious Assault

         In 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:

         No 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.

         Ohio 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.[1] The Government does not dispute this characterization of the Shepard documents.

         B. Williams's Sentencing as an Armed Career Criminal

         In 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).

         At the time, the ACCA defined "violent felony" to include any felony punishable by over one year of imprisonment that either:

(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).

         C. Prior § 2255 Petitions and Intervening Legal Developments

         Williams 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).

         In 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).

         In 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.

         In 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).

         In 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).

         D. Johnson II and the § 2255 Petition at Issue Here

         In June 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.

         That 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.

         II. DISCUSSION

         This 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.

         A. AEPDA

         The 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).

         One 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).

         Section 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 ...

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