Charles Woods v. United States

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Charles WOODS, Petitioner v. UNITED STATES of America, Respondent.

No. 15-3531

United States Court of Appeals, Eighth Circuit

Nov. 20, 2015

804 F.3d 1152

proper if a police officer “has a reasonable suspicion supported by articulable facts that criminal activity may be afoot.”

United States v. Roberts, 787 F.3d 1204, 1209 (8th Cir.2015) (internal quotation marks omitted). Specifically, Vinson argues that Zabrocki lacked reasonable suspicion because the dispatcher had initially reported that the suspect vehicle was a white Buick. However, the vehicle matched the second police radio description of the suspect‘s vehicle (a white SUV) and Zabrocki had seen such a SUV driving away from the shooting scene three minutes after the initial report. These facts are similar to those in

United States v. Juvenile TK, 134 F.3d 899, 902 (8th Cir.1998), where we concluded that an officer had reasonable suspicion to stop a vehicle matching a police report because it was close to the scene of the crime and was observed five minutes after that report. We conclude that the stop of the SUV in this case was supported by the personal observations of Officer Zabrocki which provided her with reasonable suspicion of wrongdoing.

Vinson next argues that Officer Nicholas Carlson‘s seizure of the handgun underneath the front seat did not fall within the plain view exception to the Fourth Amendment‘s warrant requirement. An object may be seized by the police without a warrant under the plain view doctrine if “(1) the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed, (2) the object‘s incriminating character is immediately apparent, and (3) the officer has a lawful right of access to the object itself.”

United States v. Collins, 321 F.3d 691, 694 (8th Cir.2003) (internal quotation marks omitted). Vinson argues that after all the suspects exited the SUV, Carlson did not have authority to look inside it.

Once an officer has lawfully stopped a vehicle, however, he can approach it even if all the occupants have been removed.

United States v. Beatty, 170 F.3d 811, 814 (8th Cir.1999). Carlson did not violate the Fourth Amendment by bending down from outside the SUV‘s rear door to look inside after all the occupants had exited. Vinson additionally argues that Carlson‘s upper body had unlawfully entered the vehicle as he tried to look under the front seat without a warrant. We review the district court‘s finding that Carlson remained outside the vehicle for clear error. See

Neumann, 183 F.3d at 755. Our review of the record, including the video from the camera on the squad car dashboard, does not show Carlson entering the SUV at the time he looked through the rear back door to see under the front seat. The district court‘s finding that Carlson saw the handgun from a position outside the vehicle was not clearly erroneous. Thus, the district court did not err in concluding that Officer Carlson‘s seizure of the handgun underneath the front seat fell within the plain view exception to the warrant requirement.

For these reasons we affirm the judgment of the district court.

Laine Cardarella, Fed. Public Defender, Kansas City, MO, for petitioner.

Phillip Eugene (Gene) Porter, Asst. U.S. Atty., Kansas City, MO, for respondent.

Before BENTON, BYE, and SHEPHERD, Circuit Judges.

PER CURIAM.

Charles Woods seeks authorization to file a successive 28 U.S.C. § 2255 motion, asserting the Supreme Court established a new rule made retroactive when it held in

Johnson v. United States, 576 U.S. ---, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutional. The government joins his motion. We grant Woods authorization to file a successive § 2255 petition.

In October 2002, a jury convicted Woods of being a felon in possession of a firearm and a felon in possession of ammunition, both in violation of 18 U.S.C § 922(g)(1), and a felon in possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). While Woods‘s conviction under § 922(g)(1) would typically carry a maximum sentence of ten years, Woods had three convictions that qualified as “violent felonies” under the ACCA and was therefore subject to a fifteen-year mandatory minimum sentence under 18 U.S.C. § 924(e). The district court sentenced Woods to 235 months.

One of Woods‘s three ACCA predicate offenses was a conviction for attempted burglary, which at the time qualified as a violent felony under the ACCA‘s residual clause because it created a “serious potential risk of physical injury to another.” 18 U.S.C. § 924(e). In

Johnson, however, the Supreme Court held the ACCA‘s residual clause was unconstitutionally vague.

135 S.Ct. at 2557. The government concedes that under

Johnson, Woods‘s conviction for attempted burglary is no longer a predicate offense under the ACCA.

We may authorize a second or successive petition under § 2255 if the petition is based on “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). The petitioner must make a prima facie showing that his petition falls within the scope of § 2255(h)(2).

Johnson v. United States, 720 F.3d 720 (8th Cir.2013). A prima facie showing is “simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.”

Id. (quoting

Bennett v. United States, 119 F.3d 468, 469 (7th Cir.1997)).

Every circuit confronted with the issue of whether the Supreme Court‘s prior holdings have made

Johnson retroactive for purposes of § 2255(h)(2) has taken a different approach. See

Price v. United States, 795 F.3d 731, 734 (7th Cir.2015) (holding

Johnson announced a new substantive rule and prior Supreme Court holdings make it retroactive);

In re Gieswein, 802 F.3d 1143, 1148-49 (10th Cir.2015) (holding the Supreme Court has not held in a case or a combination of cases that the rule in

Johnson is retroactive to cases on collateral review, and therefore it has not “made”

Johnson retroactive);

In re Rivero, 797 F.3d 986, 989 (11th Cir.2015) (holding Supreme Court “made” new substantive rules retroactive in

Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), but finding

Johnson did not announce a new substantive rule under

Summerlin);

Pakala v. United States, 804 F.3d 139, 140 (1st Cir.2015) (per curiam) (noting the circuit split, declining to address the issue, and finding petitioner made prima facie showing of retroactivity where government conceded retroactivity).

In this Circuit, we have previously accepted the government‘s concession of retroactivity of a new Supreme Court rule as a sufficient prima facie showing to allow a second or successive § 2255 petition.

Martin v. Symmes, 782 F.3d 939, 945 (8th Cir.2015);

Johnson, 720 F.3d at 721 (“The government here has conceded that Miller is retroactive and that Mr. Johnson may be entitled to relief under that case, and we therefore conclude that there is a sufficient showing here to warrant the district court‘s further exploration of the matter.“). This is the approach the First Circuit has taken as well.

Pakala, 804 F.3d 139, 140.

Here, the United States concedes that

Johnson is retroactive, and it joins Woods‘s motion. Based on the government‘s concession, we conclude that Woods has made a prima facie showing that his motion contains “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). Therefore, we grant Woods authorization to file a successive § 2255 motion.

Case Details

Case Name: Charles Woods v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 20, 2015

Citation: 805 F.3d 1152

Docket Number: 15-3531

Court Abbreviation: 8th Cir.