IN RE: Dennis D. WILLIAMS, Petitioner.
No. 16-13013-J, 16-13232-J
United States Court of Appeals, Eleventh Circuit.
June 24, 2016
1351
Before HULL, MARCUS and JULIE CARNES, Circuit Judges.
In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013).
APPLICATION GRANTED.
Arthur Lee Bentley, III, David Paul Rhodes, U.S. Attorney‘s Office, Tampa, FL, for Successive Habeas Respondent.
Dennis Williams, Coleman, FL, Pro Se.
BY THE PANEL:
Pursuant to
- (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
- (2) a new rule of constitutional law, mаde retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
The ACCA defines the term “violent felony” as any crime punishablе by a term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Section 4B1.1 of the Sentencing Guidelines provides that a defendant is classified as a career offender if (1) he was at least 18 years old at the time of the offense of conviction; (2) the offense of conviction was either a crime of violence or a controlled substance offense; and (3) he had at least two prior felony convictions of either a crime of violence or a controlled substance offense.
- (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
- (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to anоther.
Under the federal “three-strikes” statute,
According to
On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at ---, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes of the ACCA‘s definition of a violent felony. Id. at ---, 135 S.Ct. at 2563.
Thereafter, in September 2015, we issued a decision in United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), holding that the vagueness doctrine, upon which the Supreme Court invalidated the ACCA‘s residual clause in Johnson, did not similarly apply to advisory Sentencing Guidelines. We explained that the vagueness doctrine applies both to statutes that define elements of crimes and to statutes fixing sentences, but noted that “the advisory guidelines do neither.” Id. at 1194. We then emphasized that, because the pre-Guidelines sentencing scheme that gave plenary discretion to sentencing judges did not violate the notice requirement of the Due Process Clause, advisory guidelines that merely “inform a sentencing judge‘s discretion also cannot violate the notice requirement.” Id. at 1194-95. Finally, we explicitly rejected Matchett‘s policy-based argument that allowing the identically worded residual clause in
Although Johnson abrogated the prеvious decisions of the Supreme Court interpreting the residual clause of the Armed Career Criminal Act, sentencing courts interpreting the residual clause of the guidelines must still adhere to the reasoning of cases interpreting the nearly identical language in the Act. [Matchett‘s] policy concern is properly addressed to the United States Sentencing Commission....
Id. at 1195-96.
In its April 18, 2016, Welch opinion, the Supreme Court explained that, by striking down the ACCA‘s residual clause as void for vagueness, Johnson changed the ACCA‘s substantive reach and altered “the range of conduct or the class of persons that the [Act] punishes.” Id. at ---, 136 S.Ct. at 1265 (brackets in original) (quotation omitted). Applying the retroactivity framework set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, the Court further stated that Johnson was not a procedural decision because it “had nothing to do with the range of permissible
Thereafter, in In re Griffin, No. 16-12012, manuscript op. at 7-10 (11th Cir. May 25, 2016), we held that an applicant seeking leave to raise a Johnson-based challenge to his career offender enhancement, which was imposed when the Sentencing Guidelines were mandatory, did not make a prima facie showing that his claim satisfied the criteria of
Furthermore, we concluded in Griffin that the Supreme Court‘s ruling in Welch did not “make[] Johnson retroactive for purposes of a second or successive § 2255 motion premised on the applicability of Johnson to a guidelines challenge, just because the guidelines challenge happens to be based on the residual clause.” Id. at 8. We reasoned that, whereas the “application of Johnson to the ACCA was a substantive change in the law because it altered the statutory range of permissible sentences,” a rule that extended Johnson to the residual clause of the career offender guideline would only establish that the guideline range had been incorrectly calculated within the statutory boundaries. Id. at 8-9. Thus, the extension of Johnson to a guidelines context would only create changes in “how the sentencing procedural process is to be conduct—changes that are not entitled to retroactive effect in cases on collateral review in a second or successive § 2255 motion.” Id. at 9.
Here, Williams was convicted by a jury in 2008 of conspiracy to possess with intent to distribute five or more kilograms of cocaine, in violation of
To the extent Williams relies on Johnson to invalidate his mandatory life sen-
To the extent Williams relies on Johnson to invalidate his sentence enhancement under the career-offender guidelines, his claim also fails. Even though the Supreme Court has held in Welch that Johnson applies retroactively to cases on collateral review, our binding precedent holds that Welch does not make Johnson retroactive for purposes of filing a successive § 2255 motion raising a Johnson-based challenge to the Sentencing Guidelines. See Griffin, No. 16-12012, manuscript op. at 8-9; Welch, 578 U.S. at ---, 136 S.Ct. at 1264-65. Furthermore, Williams cannot make a prima facie showing that Johnson applies to his career-offender claim in light of our holdings in Matchett and Griffin that the Sentencing Guidelines—whether advisory or mandatory—cannot be unconstitutionally vague. See Griffin, No. 16-12012, manuscript op. at 7; Matchett, 802 F.3d at 1195.
Finally, as fоr his claim that his ACCA-enhanced sentence on his conviction for Count 3 is invalid in light of Johnson, Williams has made a prima facie showing that he meets the statutory criteria, but we nevertheless deny his application. As the record shows, the district court did not identify which ACCA clause it used in counting Williams‘s three ACCA predicate convictions, and it is not clear that he has more than two prediсate convictions after Johnson. Accordingly, Williams has presented a prima facie showing that his designation as an armed career criminal under the ACCA, which subjected him to a mandatory minimum sentence of 15 years and a statutory maximum sentence of life imprisonment—which he received—for Count 3, falls within the scope of the rule announced in Johnson.
Importantly, however, Williams received a concurrent mandatory life sentence on Count 1 that was unrelated to his ACCA status. See
Based on the record, it appears that Williams‘s potential Johnson claim would impact only his sentence for Count 3. Although we have not directly applied harmless error or the concurrent sentence doctrine in the context of an application to file a second or successive § 2255 motion, see Bradley, 644 F.3d at 1293; Brown, 817 F.3d at 1284-85; Pacchioli, 718 F.3d at 1308; Streator, 431 F.2d at 568, we have said in the § 2255(h) context that “[a]n applicant must show a reasonable likelihood that he would benefit from the new rule he seeks to invoke in a second or successive petition.” In re Henry, 757 F.3d 1151, 1162 (11th Cir. 2014) (citing, inter alia, In re Vassell, 751 F.3d 267, 270-71 (4th Cir. 2014) (“[W]hile our primary consideration in reviewing a request for authorization in this kind of case is whether the applicant made the requisite prima facie showing about a new rule of constitutional law, nothing in either § 2255 or § 2244 requires us to ignore other сonsiderations and authorize the filing of a successive § 2256 motion that, for instance, would clearly be time-barred. The statute, we conclude, simply does not require such an exercise in futility.“)); accord In re Hires, 825 F.3d 1297, 1299, 2016 WL 3342668, at *2 (11th Cir. June 15, 2016) (“When a petitioner seeks leave to pursue a successive § 2255 motion under § 2255(h)(2), we have held that a petitioner must demonstrate a ‘reasоnable likelihood’ that they will benefit from a new, retroactive, and previously unavailable constitutional rule in order to make a prima facie showing that their application satisfies the requirements of §§ 2244(b) and 2255(h).“).
In this case, although Williams has made a prima facie showing under Johnson as to Count 3, he is unable to show that he would “benefit” from Johnson, since he received a concurrent mandatory life sentence on Count 1 that was unrelated to his ACCA status and is unaffected by Johnson. Nor has he made any showing of adverse collateral consequences in this instance. Because “nothing in either § 2255 or § 2244 requires us to ... authorize the filing of a successive § 2255 motion that ... would clearly be ... an exercise in futility,” In re Vassell, 751 F.3d at 271, we cannot grant Williams leave to file a second or successive § 2255 motion that can provide him no relief in the district court at this time.
Accordingly, Williams has not demonstrated that he will benefit from Johnson, and his applications for leave to file a second or successive § 2255 motion are hereby DENIED.