JAMES STEINER v. UNITED STATES OF AMERICA
No. 17-15555
United States Court of Appeals, Eleventh Circuit
October 16, 2019
D.C. Docket Nos. 2:14-cv-01256-WKW-TFM; 2:09-cr-00113-WKW-TFM-2
[PUBLISH]
Appeal from the United States District Court for the Middle District of Alabama
(October 16, 2019)
Before WILSON and NEWSOM, Circuit Judges, and PROCTOR,* District Judge.
James Steiner appeals the district court‘s denial of his
Steiner also argues that his conviction is unconstitutional because the underlying crime of violence—aiding and abetting a carjacking—no longer qualifies as a crime of violence after United States v. Davis, 588 U.S. ___, 139 S. Ct. 2319, 2336 (2019) (holding that the residual clause in
Steiner further argues that the district court erred by denying his claim that counsel was ineffective for failing to object to the jury charge, which lacked an instruction on advance knowledge. But because advance knowledge was not a requirement of a conviction for aiding and abetting a
Finally, Steiner asserts that the district court failed to grant or deny a certificate of appealability (COA) regarding his claim that the jury instructions themselves were erroneous under Rosemond. He asks us to remand this matter to the district court for the limited purpose of ruling on that issue. We decline to do so because the district court‘s order regarding a COA effectively denied a COA regarding Steiner‘s jury-instruction claim.
I. Background
A grand jury charged Steiner and one of his co-conspirators, Wayne Ware, with (1) conspiracy to commit carjacking, in violation of
At trial, the testimony of Walker and two victims established the following.1 Steiner, Walker, Wilson, and Ware met up on the evening of the carjacking. At some point that evening, Ware suggested they “go hit a lick,” which Walker understood to mean “go try to get some money” by robbing someone. No one objected to Ware‘s suggestion. Instead, the group got into Walker‘s Chevy Blazer and drove off in search of a target. Before they left, Walker saw Ware load two firearms into the vehicle—a pistol and an AK-47. Ware did not attempt to conceal the guns from the others. But, importantly, there was no evidence presented at trial that Steiner observed Ware loading the guns into the car. When they left, Steiner drove, Walker sat in the front passenger seat, and Wilson and Ware sat in the backseat.
That same evening, Megan Patterson was driving around in her Chevy Impala with three friends, Melissa Nolan, S.H., and S.R.2 Around 11:30 p.m., they stopped briefly at a gas station to purchase some items. When they left, Patterson was driving, Nolan was in the front passenger seat,
Shortly thereafter, Steiner drove up very fast behind the Impala with his bright lights on, passed the Impala, pulled in front of it, and slammed on the brakes. Patterson was unable to stop in time and hit the Blazer. Steiner, Walker, Wilson, and Ware got out of the Blazer and began approaching the Impala. Wilson and Ware brandished the guns and began firing them.3
Patterson observed that one gun was a pistol and one was a “long gun” with a “banana clip.” She immediately ducked, reversed her car into a ditch, and hit a tree. S.H. and S.R. managed to get out of the car and escape into the woods. But Patterson did not get out of the car for fear of being shot, and Nolan could not get out of the car because her door was blocked.
Steiner and his co-conspirators approached the Impala and demanded Patterson‘s and Nolan‘s money and purses. Patterson and Nolan handed the items over. The four men then returned to the Blazer, only to discover it would not start. Patterson and Nolan saw the four men talking amongst themselves. Meanwhile, Nolan called her mom, but the call was cut short when Steiner and the others returned a few moments later and asked Patterson and Nolan for their cell phones and keys. One of the men told Patterson to get out of the car and tried to drive the Impala out of the ditch, but it was stuck. Someone then told Patterson to get back in the car and Nolan to lie down in the ditch. Steiner and the others began trying to lift the car out of the ditch.
While they were trying to free the car, a man named Corey Burkett drove down the road. Steiner, Walker, Wilson, and Ware ran into the woods and warned Patterson and Nolan not to try anything. However, Patterson motioned for Burkett to stop. Burkett began to slow down, but then he quickly drove away when one of the men shot at his vehicle. Steiner and the others returned from the woods, resumed trying to free the car, and managed to get it out of the ditch. They ordered Patterson to lie down in the ditch by Nolan and drove off in the Impala, with Steiner driving.
Soon after Steiner drove off, a police officer started pursuing the Impala. Steiner began to slow down because, according to Walker, he was considering telling the police what happened. But the others told Steiner to keep going, and he did. He eventually lost the police. The men abandoned the car, ran into the woods, and called someone to give them a ride home. The victims reported the carjacking that evening, and Steiner, Walker, Wilson, and Ware were arrested within a few days.
After the close of evidence, the district court instructed the jury. The jury charge included an instruction on aiding and abetting the using or carrying of a firearm during and in relation to a crime of violence. But, because Rosemond had not yet been decided, the court did not instruct the jury that it must find that Steiner had advance knowledge that a co-conspirator would use or carry a firearm during the carjacking. Steiner‘s counsel did not object to the lack of an instruction. The jury found Steiner guilty on all three counts
Steiner appealed his convictions and sentences. He argued, in relevant part, that there was insufficient evidence to support his conviction for aiding and abetting a
In 2014, the Supreme Court issued its decision in Rosemond. Subsequently, Steiner filed the present
Steiner amended his motion in January 2016 to include a claim under Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 2563 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act is unconstitutionally vague. Specifically, he argued that his conviction for aiding and abetting a
The district court denied Steiner‘s
Next, the district court found that Steiner‘s jury-instruction and ineffective-assistance-of-counsel claims were untimely for the same reason his direct Rosemond claim was untimely. The court also found that the jury-instruction claim was procedurally barred because Steiner had not raised it on direct appeal and counsel could not be deemed ineffective for failing to
Steiner appealed and moved for a COA on all four claims. The district court granted a COA on the following issues: (1) whether Steiner‘s
On appeal, Steiner recasts his Johnson claim as a claim under the Supreme Court‘s recent decision in Davis. See Davis, 139 S. Ct. at 2336. In addition to arguing the issues specified in the COA, Steiner argues that the district court erred by failing to address his jury-instruction claim in the order granting a COA. He requests that we remand to the district court for the limited purpose of addressing that issue.
II. Standards of Review
In evaluating the district court‘s denial of a motion to vacate under
We also review de novo whether the evidence was sufficient to sustain a jury‘s verdict in a criminal trial. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). In doing so, we “view the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government‘s favor.” United States v. Christo, 129 F.3d 578, 579 (11th Cir. 1997) (per curiam).
The relevant question when a state prisoner seeks federal habeas relief based on insufficient evidence is whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We have not explicitly established that we apply this standard when reviewing a federal prisoner‘s insufficient-evidence claim in the context of a
Additionally, ineffective-assistance-of-counsel claims are mixed questions of law and fact that we review de novo. Osley v. United States, 751 F.3d 1214, 1222 (11th Cir. 2014). Similarly, we review de novo whether a prior conviction is a crime of violence under
III. Analysis
A. The Rosemond Claim
The first question we address is whether Steiner is entitled to relief under Rosemond. In order to reach this question, we must first decide whether Rosemond applies retroactively to cases on collateral
1. Rosemond Applies Retroactively on Collateral Review
Ordinarily, movants must file their
In determining retroactivity under
If we determine that the Supreme Court has announced a new rule, we “must then determine whether that new rule satisfies an exception to the general prohibition against the retroactive application of new rules on collateral review.” Id. at 1208. There are two exceptions to this general prohibition: new substantive rules and “watershed rules of criminal procedure.” Schriro, 542 U.S. at 351-52. Relevant to this appeal, new substantive rules include “decisions that narrow the scope of a criminal statute by interpreting its terms” and “constitutional determinations that place particular conduct or persons covered by the statute beyond the [government‘s] power to punish.” Id.
Rosemond involved a dispute regarding the intent requirement of
We conclude that Rosemond announced a new rule because it produced a result that was not dictated by pre-existing precedent. See Teague, 489 U.S. at 301. Before Rosemond, the law of this Circuit, and others, did not require the government to prove that the defendant had advance knowledge that a co-conspirator would be armed. See Williams, 334 F.3d at 1232. Indeed, Rosemond addressed a split among the circuits regarding the requirements for aiding and abetting a
We also conclude that the new rule announced in Rosemond is substantive, as it narrowed the scope of aiding and abetting a
Before Rosemond, “accomplice liability was possible even if the defendant learned of a coconspirator‘s use of the gun while the crime was underway—as long as the defendant continued to participate after learning about the gun.” Id.; see also Williams, 334 F.3d at 1232 (stating the requirements for accomplice liability pre-Rosemond). Rosemond, however, limited aiding and abetting
Our statement in Quartavious Davis that Rosemond “clarified” the elements of aiding and abetting a
2. Sufficient Evidence Supported Steiner‘s § 924(c) Conviction
The final and determinative question we must answer to decide Steiner‘s Rosemond claim is whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Steiner had advance knowledge that his co-conspirators would use or carry a firearm during and in relation to the carjacking. See Jackson, 443 U.S. at 324; Rosemond, 572 U.S. at 67. On appeal, Steiner contends that the government presented no evidence at trial showing he had either (1) advance knowledge his co-conspirators would take firearms to the scene of the carjacking or (2) a reasonable opportunity to withdraw from the crime after it began. We disagree.
To be sure, the evidence at trial suggesting that Steiner had knowledge of the firearms before arriving at the scene of the robbery and eventual carjacking was thin. One of Steiner‘s co-conspirators, Walker, testified that he, Steiner, Wilson, and Ware agreed to “go hit a lick,” i.e., they agreed to rob someone together. He also testified that Ware alone loaded the two guns into the Blazer—although one gun was an AK-47 with a long magazine, and Ware made no effort to conceal the guns from the others as he did so. Finally, Walker testified that Ware rode in the backseat of the Blazer, directly behind Steiner in the driver‘s seat. The government presented no evidence directly showing that the group agreed to or discussed bringing firearms to commit the robbery, that the guns were located in a part of the Blazer where Steiner would likely see them, or that Steiner was otherwise aware of the guns before his co-conspirators initially brandished and fired them.
But Rosemond recognizes that a jury may infer a defendant‘s advance knowledge from the defendant‘s actions after a crime is underway. See 572 U.S. at 78 n.9. And we agree with the district court that the evidence of Steiner‘s continued participation in the offense after Wilson and Ware first fired the guns supports finding that he had advance knowledge. Specifically, after Wilson and Ware initially fired the guns, Steiner and his co-conspirators discovered that the Blazer would not start, paused to converse amongst themselves, and decided to take Patterson‘s Impala. Steiner then participated in freeing the Impala from the ditch and hiding in the woods when Burkett drove down the road. Indeed, Walker testified that it was Steiner who ultimately
Conversely, the Court in Rosemond explained that advance knowledge is not present when a defendant only learns of a gun‘s presence when he no longer has a “realistic opportunity to quit the crime.” Id. at 78. Here, Steiner had limited options for extracting himself from the situation, given that the Blazer was immobilized on a secluded road near the woods when his co-conspirators first fired the guns. Nonetheless, the robbery-turned-carjacking spanned a significant amount of time. The men had time to step away for a discussion about taking the Impala, during which Nolan had time to call her mom. They had time to begin removing the car from the ditch, stop and hide in the woods from Burkett, and return to the Impala and free it from the ditch. Additionally, two people from the victim‘s car successfully escaped into the very woods in which Steiner hid from Burkett. Based on this evidence, a reasonable jury could infer that Steiner still had an opportunity to “quit the crime” after he learned of the guns’ presence. See id. Therefore, sufficient evidence supported his conviction for aiding and abetting a
One further point bears mentioning. Our statement on direct appeal regarding Steiner‘s awareness of the guns is not relevant to our decision today regarding his advance knowledge. On direct appeal, we addressed whether sufficient evidence supported Steiner‘s conviction for aiding and abetting a
B. The Davis Claim
Steiner separately challenges his conviction for aiding and abetting a
As explained above,
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
We have previously held that carjacking qualifies as a crime of violence under
C. The Ineffective-Assistance-of-Counsel Claim
We also agree with the district court‘s conclusion that Steiner‘s counsel was not ineffective for failing to object to the jury instructions as erroneous under Rosemond.
To show that counsel was ineffective, a defendant must show that (1) his counsel‘s performance was deficient, and (2) the performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney‘s failure to anticipate a change in the law does not constitute ineffective assistance. See Rambaran v. Sec‘y, Dep‘t of Corr., 821 F.3d 1325, 1334 (11th Cir. 2016) (explaining that “we have held many times that reasonably effective representation cannot and does not include a requirement to make arguments based on predictions of how the law may develop” (alterations accepted)).
Here, Steiner stood trial in 2009—approximately five years before Rosemond—and the district court instructed the jury in a manner consistent with the requirements
D. The Certificate-of-Appealability Issue
Finally, Steiner takes issue with the district court‘s silence regarding his jury-instruction claim in its order specifically granting a COA on the three claims discussed above. Steiner asks us to construe this silence as a failure to grant or deny a COA on the jury-instruction claim and remand to the district court so that it may rule on a COA as to that claim. We decline to do either.
Ordinarily, we do not address issues not specified in the COA. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (per curiam). But we do remand on a limited basis for a district court to rule on the propriety of a COA where it has not already done so. See, e.g., Perez v. Sec‘y, Fla. Dep‘t of Corr., 711 F.3d 1263, 1264 (11th Cir. 2013) (remanding to the district court to rule on a COA regarding the denial of a
That is not the case here. The district court specified the three claims on which it was granting a COA. The court was not required to state its reasons for denying a COA on the jury-instruction claim. See Fed. R. App. P. 22(b)(1) (2009 Amendments) (removing the requirement that a district court judge‘s denial of a COA must be accompanied by an explanation). Of course, after the district court‘s denial, Steiner could have moved this court to expand the COA to address this issue, but he did not. See Jones v. United States, 224 F.3d 1251, 1256 (11th Cir. 2000) (expanding the COA to include a previously uncertified issue following the movant‘s explicit request to expand the COA). Accordingly, we will not remand to the district court to rule on a COA as to the jury-instruction claim.
IV. Conclusion
In sum, we hold today that Rosemond announced a new substantive rule that applies retroactively on collateral review. However, Steiner does not benefit from that new rule because the evidence at trial was such that a rational trier of fact could conclude beyond a reasonable doubt that he had advance knowledge that his co-conspirators would use or carry firearms during the carjacking. We also conclude that Davis does not affect Steiner‘s conviction for aiding and abetting a
AFFIRMED.
PROCTOR, District Judge, Concurring:
I concur fully in the panel‘s well-reasoned opinion. I write separately to clarify one point related to Steiner‘s Rosemond1 claim.
The facts related to the 924(c) offense are straightforward. Steiner and his confederates planned to “hit a lick” - that is, commit a robbery. And that is exactly what they did. They spotted four young victims at a gas station, followed their car, forced them to stop on a road, and robbed them at gunpoint. After accomplishing the robbery, and as they attempted to flee the scene, Steiner and his cohort ran into a problem. Their car would not start. After huddling together, the compatriots agreed to enter into another (and separate) criminal scheme – to take the victims’ car at gunpoint. Steiner actively participated in the carjacking. Among other things, it was Steiner who drove the stolen the car away from the scene.
The carjacking was an offense which was separate and apart from the robbery. Indeed, Walker, a cooperating witness, testified at trial that the carjacking was not part of the original robbery scheme. And importantly, the carjacking offense was not initiated until after the armed robbery was essentially completed and a getaway car was unexpectedly needed. Then, and only then, was the carjacking plan hatched. By that point, Steiner was fully aware that others in his group possessed firearms (and had discharged them during the earlier robbery). This is important because it demonstrates that Steiner was aware of the presence and use of weapons at the scene before he agreed to “take[] a motor vehicle.”
Based upon this evidence, a reasonable jury could infer that Steiner had full knowledge of the presence of the weapons at the time he agreed to participate in the carjacking offense. The same reasonable jury could also infer that he was fully aware that the weapons would be used in the carjacking. Rosemond is of no help to him, and there was more than sufficient evidence to support his conviction on the section 924(c) charge.
I would affirm on that basis.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
Notes
Some have challenged this court‘s prior ruling that published panel orders in the second or successive context bind all panels of this court. See In re Williams, 898 F.3d 1098, 1099-1105 (11th Cir. 2018) (Wilson, J., concurring). However, St. Hubert binds us because neither this court sitting en banc nor the Supreme Court has overruled it. See United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (“We may disregard the holding of a prior opinion only where that holding is overruled by the Court sitting en banc or by the Supreme Court.” (internal quotation mark omitted)). Accordingly, In re Colon and St. Hubert foreclose Steiner‘s additional arguments.