JOHN FORREST HAM, JR., Petitioner – Appellant, v. WARDEN M. BRECKON, Respondent – Appellee.
No. 20-6972
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
April 20, 2021
Before AGEE, THACKER, and QUATTLEBAUM, Circuit Judges.
PUBLISHED. Argued: January 28, 2021. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, Senior District Judge. (7:18-cv-00649-GEC-PMS)
Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Agee and Judge Quattlebaum joined.
ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. Kathryn Margaret
THACKER, Circuit Judge:
John Forrest Ham, Jr. (“Petitioner“) appeals the district court‘s dismissal of his
Petitioner claims that in his case, Mathis v. United States, 136 S. Ct. 2243 (2016), satisfies this requirement. Specifically, he argues Mathis changed “well-settled substantive law” regarding how a sentencing court should apply the categorical approach.2 Pet‘r‘s Br.
I.
A.
Procedural History
1.
Petitioner‘s Plea and Sentencing
On May 12, 2010, Petitioner pled guilty in the United States District Court for the District of South Carolina (“DSC“) to (1) being a felon in possession of a firearm, in violation of
Petitioner was sentenced on September 10, 2010, to a total term of 319 months, consisting of 235 months on the ACCA count and 180 months on the carjacking count, to
In the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years . . . .
[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year that . . . is burglary . . . .
Post-Conviction Litigation
a.
In July 2012, Petitioner filed his first
On August 9, 2013, seven weeks after Descamps was decided, the DSC dismissed Petitioner‘s first
b.
Three years later, the Supreme Court decided Mathis v. United States, 136 S. Ct. 2243 (2016). Petitioner thereafter filed a pro se
On March 2, 2018, the DSC dismissed the transferred
(1) at the time of sentencing, settled law of this circuit or the Supreme Court established the legality of the sentence; (2) subsequent to the prisoner‘s direct appeal and first § 2255 motion, the aforementioned settled substantive law changed and was deemed to apply retroactively on collateral review; (3) the prisoner is unable to meet the gatekeeping provisions of § 2255(h)(2) for second or successive motions; and (4) due to this retroactive change, the sentence now presents an error sufficiently grave to be deemed a fundamental defect.
Petitioner promptly filed a motion to alter or amend in the DSC, asking that court to reassess its order dismissing his
While the motion to reconsider was pending in the DSC, on December 31, 2018, Petitioner filed the instant pro se
Nonetheless, the WDVA dismissed the
c.
Petitioner timely noted this appeal from the WDVA‘s dismissal of his
B.
Legal Landscape -- Mathis and the Categorical Approach
Because Petitioner bases his Wheeler claim on Mathis, we start with an overview of that decision and its place in a succession of Supreme Court cases addressing the categorical approach.
1.
Taylor v. United States
In the seminal case of Taylor v. United States, 495 U.S. 575 (1990), the Supreme Court held that generally, in determining whether an offense qualifies as a “violent felony” under the ACCA, a federal sentencing court “must look only to the statutory definition” -- i.e., the elements of a defendant‘s prior offenses, and not to “the particular facts underlying those convictions.” 495 U.S. at 600. If the definition of the prior offense sweeps more broadly than the generic offense, then the prior offense fails to qualify as an ACCA predicate. See id. at 599. The Supreme Court referred to this framework as the “formal categorical approach.” Id. at 600. Taylor also recognized, however, that this approach “may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of [the generic offense].” Id. at 602. In such a case, Taylor explained a court may look beyond the
This process of looking behind statutory elements of the crime became known as the “modified categorical approach.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187 (2007) (quoting Conteh v. Gonzales, 461 F.3d 45, 54 (1st Cir. 2006)).
2.
Descamps v. United States
In 2013, the Supreme Court clarified that the modified categorical approach does not apply to statutes containing a single, indivisible set of elements. See Descamps, 570 U.S. at 258. Rather, the modified categorical approach only applies when an offense is divisible with alternative elements. See id. at 260. As an example, the Court explained that a statute that sets forth divisible, alternative elements would be a “burglary [statute that] involves entry into a building or an automobile.” Id. at 257 (emphasis in original).
3.
Mathis v. United States
Finally, in Mathis, the Supreme Court relied on Taylor and Descamps to clarify that where an offense of conviction enumerates various alternative factual means of satisfying one element of the crime, courts may not use the modified categorical approach. See 136 S. Ct. at 2248–49. Specifically, the Court addressed Iowa burglary, which prohibited unprivileged entry into an “occupied structure” -- defined to include “any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place.”
Importantly for the case at hand, Mathis made clear that it was not breaking new ground or changing any of its prior decisions regarding how to apply the categorical approach. Indeed, Mathis begins by noting, “For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense.” Mathis, 136 S. Ct. at 2247 (emphasis supplied). It then declined to make an “exception” to this established rule for the situation in which a defendant is convicted under a statute “that lists multiple, alternative means of satisfying one (or more) of its elements.” Id. at 2247–48. Mathis did not amend any elements of any state burglary statutes, nor did it render any such statutes indivisible that the Supreme Court had previously rendered divisible. It merely reiterated the “longstanding principle[]” that “[h]ow a given defendant actually perpetrated the crime . . . makes no difference” in analyzing a prior conviction under the categorical approach. Id. at 2251 (emphasis supplied).
Prong Two of the Wheeler Test5
This case boils down to an analysis of prong two of the Wheeler test. Prong two has two components. First, it requires the “settled substantive law” establishing the legality of the prisoner‘s sentence to have “changed.” United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018). Second, it requires this change to have been “deemed to apply retroactively on collateral review.” Id. Because we conclude Mathis did not change the settled substantive law, we need not reach the retroactivity question.
A.
Change in Settled Substantive Law
Wheeler prong two requires the petitioner to demonstrate that “the aforementioned settled substantive law changed,” 886 F.3d at 429, that is, “the ‘settled law of this circuit or the Supreme Court,‘” Young v. Antonelli, 982 F.3d 914, 918 (4th Cir. 2020) (quoting Wheeler, 886 F.3d at 429).
1.
Origin and Application
In this court‘s decision In re Jones, we held for the first time that a prisoner could pass through the savings clause and challenge his conviction if he could demonstrate that the “substantive law changed.” 226 F.3d 328, 334 (4th Cir. 2000). In Jones, the petitioner,
Because Jones could not meet the requirements for a second or successive
The petitioner in Wheeler was able to demonstrate a change in settled substantive law because at the time of his sentencing (where he received an enhanced sentence based on having a prior felony drug offense punishable by a prison term “exceeding one year,” 886 F.3d at 420), the settled substantive law in this circuit was that “to determine whether a conviction is for a crime punishable by a prison term exceeding one year, . . . we consider the maximum aggravated sentence that could be imposed for that crime upon a defendant with the worst possible criminal history,” United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005) (emphasis in original). However, after Wheeler‘s direct appeal and first
Likewise, in our few published decisions applying the Wheeler test, those petitioners who were granted entry through the savings clause presented substantive changes in the law.
For example, Braswell, like Wheeler, relied on the change in law set forth in Simmons. See 952 F.3d at 448. And, in Lester v. Flournoy, 909 F.3d 708, 712 (4th Cir. 2018), we concluded that the petitioner, Stoney Lester, satisfied prong two of Wheeler based on a change in this court‘s law regarding the crime of walkaway escape.7 First, the Supreme Court held that the Illinois crime of failure to report to a prison was not a violent felony for purposes of the ACCA in Chambers v. United States, 555 U.S. 122, 130 (2009). Then, based on Chambers, this court ruled that walkway escape, Lester‘s prior offense, was not a crime of violence for purposes of the (then mandatory) career offender Sentencing Guidelines, see United States v. Clay, 627 F.3d 959, 969 (4th Cir. 2010). We noted that after Chambers and Clay, Lester had “new precedents in hand.” Lester, 909 F.3d at 710; see also id. at 711 (suggesting Lester‘s petition was based on a “new statutory construction[]“); id. at 712 (referring to Chambers and Clay as “new authority“); cf. Young, 982 F.3d at 918–19 (holding that, although this court elected to change the law of this
2.
No Change in Supreme Court Law
Turning to the case at hand, we look to whether Mathis changed settled Supreme Court law with regard to application of the categorical approach. Petitioner submits that Descamps “clarif[ied] that the modified categorical approach only applies when an offense is divisible with alternative elements.” Pet‘r‘s Br. 12 (emphasis in original). But, Petitioner maintains, “it was not until Mathis that the Supreme Court gave further explanation of how to determine whether an offense had alternative elements, or alternative methods of committing a single offense.” Id. at 13 (emphases in original).
But even in Petitioner‘s view, Descamps and Mathis provided “clarif[ication]” and “further explanation” of prior Supreme Court case law. And all parties in this appeal agree that Mathis was merely restating an old rule. See Pet‘r‘s Br. 21–22 (“[T]he fact that Mathis itself explains that it was based on prior precedent demonstrates that it is an ‘old rule’ . . . .“); Gov‘t‘s Br. 12, 17 (”Mathis is an old rule . . . .” and Mathis “was not saying anything new.“); Amicus Br. 19 (”MATHIS IS AN OLD RULE THAT DOES NOT SATISFY WHEELER‘S SECOND PRONG.” (capitalization omitted)).
The parties are correct. Mathis made clear that the categorical approach has always required a look at the elements of an offense, not the facts underlying it. See Mathis, 136 S. Ct. at 2257 (“Whether or not [alternative means of commission are] made explicit, they
Even in Descamps, which was decided while Petitioner‘s first
For these reasons, Mathis did not change the settled substantive law of the Supreme Court with regard to when a court should apply the categorical or modified categorical approach. See Muhammad v. Wilson, 715 F. App‘x 251, 252–53 (4th Cir. 2017) (per
3.
No Change in Fourth Circuit Law
Primarily, however, Petitioner contends that he can satisfy the second prong of the Wheeler test because Mathis changed the settled substantive law of this court. As Petitioner‘s argument goes, before Mathis, courts in this circuit believed South Carolina third-degree burglary was divisible and therefore subject to the modified categorical approach, but after Mathis, those courts are now using the categorical approach. See Pet‘r‘s Br. 15–16; see also Gov‘t‘s Br. 17–18. Petitioner‘s argument, however, misses the mark.
a.
United States v. Hall
First, Petitioner points to our unpublished decision in United States v. Hall, 684 F. App‘x 333 (4th Cir. 2017) (per curiam), as evidence of the shift in this court‘s application of the categorical approach to South Carolina third degree burglary. See Pet‘r‘s Br. 15. Specifically, Hall concluded that South Carolina third degree burglary “cannot serve as a predicate felony under the ACCA” because, like the Iowa statute at issue in Mathis, “the South Carolina statute . . . is not divisible.” Id. at 335. And we said Mathis “is dispositive in this case.” Id.
But Hall cannot bear the weight Petitioner gives it. Hall was an unpublished, nonprecedential decision and cannot be faithfully read to demarcate a change in settled law.
b.
United States v. McLeod
Next, Petitioner relies on United States v. McLeod to demonstrate that this court was applying the modified categorical approach to South Carolina burglary after Descamps but before Mathis. See 808 F.3d 972, 974 (4th Cir. 2015). But this decision also does not help Petitioner.
In McLeod, this court applied the modified categorical approach to South Carolina second degree burglary (which contains the same definition of “building” as third degree burglary), saying that approach was “authorized by Taylor and Descamps.” 808 F.3d at 974 (citation omitted). It also explained the South Carolina burglary statute “defines the
But if, as Petitioner wishes, we read McLeod as standing for the proposition that this court viewed South Carolina burglary as a divisible offense necessitating the modified categorical approach, there has been no published circuit opinion abrogating that principle. Although Mathis‘s clarification of when to use the modified categorical approach may undercut McLeod‘s treatment of “structure, vehicle, watercraft, or aircraft” as “elements,” McLeod, a precedential panel decision, could not have been “changed” by Hall, a nonprecedential decision, to satisfy prong two of Wheeler. Wheeler, 886 F.3d at 429.
c.
Reading Indivisible Statutes
Petitioner also cites United States v. Kirksey, 138 F.3d 120 (4th Cir. 1998), for the proposition that at the time of Petitioner‘s sentencing, this court was applying the modified categorical approach to statutes without divisible elements -- in that case, Maryland common law assault. See Pet‘r‘s Br. 12. While that may be true for the particular Maryland offense at issue in Kirksey, we said nothing in that case about South Carolina burglary. In any event, we abrogated the approach taken in Kirksey years before Mathis. See United States v. Royal, 731 F.3d 333, 341 (4th Cir. 2013). In Royal, we looked to the elements of Maryland assault, the first of which was “the defendant caused offensive physical contact with, or harm to, the victim.” Id. We then explained that Maryland law did not require juries to be unanimous in finding either physical contact or harm; “it is enough that each
Petitioner claims Descamps “began to change” the categorical approach, undercutting the idea that Mathis itself changed the substantive law of this circuit. Pet‘r‘s Br. 12. In fact, Mathis itself cited with favor two of this court‘s decisions in describing how courts should differentiate between divisible and indivisible statutes. In the first instance, the Court set forth the circuit split that developed, in which some courts held that “ACCA‘s general rule -- that a defendant‘s crime of conviction can count as a predicate only if its elements match those of a generic offense -- gives way when a statute happens to list various means by which a defendant can satisfy an element.” Mathis, 136 S. Ct. at 2251. In a footnote, the Court cited Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) as properly rejecting that “exception.” See id. at 2251 n.1. Indeed, we stated in Omargharib that “a crime is divisible under Descamps only if it is defined to include multiple alternative elements (thus creating multiple versions of a crime), as opposed to multiple alternative means (of committing the same crime).” 775 F.3d at 198 (emphases in original).
Mathis positively cited another Fourth Circuit case for the proposition that “if a statutory list is drafted to offer illustrative examples, then it includes only a crime‘s means of commission.” 136 S. Ct. at 2256 (internal quotation marks omitted) (citing United States v. Cabrera-Umanzor, 728 F.3d 347, 353 (4th Cir. 2013)). The portion of Cabrera-Umanzor cited by Mathis addressed a Maryland sex abuse statute that required the State to prove that the defendant engaged in an act involving sexual molestation or exploitation of a minor with whom he held a certain familial or custodial relationship. See 728 F.3d at 353. Though the statute listed various types of crimes constituting sexual abuse (e.g., “incest, rape, or sexual offense in any degree“), this court held (and the Supreme Court presumably endorsed) that the listed crimes “are not elements of the offense, but serve only as a non-exhaustive list of various means by which the elements of sexual molestation or sexual exploitation can be committed.” Id.
Mathis
Unlike the decisions in Simmons, Chambers, Clay, Bailey, and Burrage, here, we cannot say Mathis changed this circuit‘s settled law. Instead, Mathis explained that courts must look to each individual state statute and/or law to apply the elements/means analysis:
This threshold inquiry—elements or means?—is easy in this case, as it will be in many others. Here, a state court decision definitively answers the question: The listed premises in Iowa‘s burglary law, the State Supreme Court held, are “alternative method[s]” of committing one offense, so that a jury need not agree whether the burgled location was a building, other structure, or vehicle. When a ruling of that kind exists, a sentencing judge need only follow what it says. Likewise, the statute on its face may resolve the issue. If statutory alternatives carry different punishments, then under Apprendi[8] they must be elements. Conversely, if a statutory list is drafted to offer “illustrative examples,” then it includes only a crime‘s means of commission. And a statute may itself identify which things must be charged (and so are elements) and which need not be (and so are means). Armed with such authoritative sources of state law, federal sentencing courts can readily determine the nature of an alternatively phrased list.
Mathis, 136 S. Ct. at 2256 (citations omitted); see also id. at 2257 (“Whether or not [alternative means of commission are] made explicit, they remain what they ever were -- just the facts, which ACCA (so we have held, over and over) does not care about.” (emphasis supplied)). We decline to hold that Mathis‘s explanation about how to determine whether parts of a statute are “elements or means” changed this circuit‘s
B.
Other Circuits’ Savings Clause Tests
Finally, Petitioner relies on cases from the three other circuits that provide relief from erroneous sentences via the savings clause. However, these cases are inapposite because they do not utilize a test like Wheeler. First, the Sixth Circuit employs a savings clause test requiring “(1) a case of statutory interpretation, (2) that is retroactive and could not have been invoked in the initial § 2255 motion, and (3) that the misapplied sentence presents an error sufficiently grave to be deemed a miscarriage of justice or a fundamental defect.” McCormick v. Butler, 977 F.3d 521, 525 (6th Cir. 2020). Rather than requiring a change in substantive law, as does Wheeler, the Sixth Circuit test merely requires the
Similarly the Seventh Circuit requires: “(1) the claim relies on a statutory interpretation case, not a constitutional case, and thus could not have been invoked by a successive § 2255 motion; (2) the petitioner could not have invoked the decision in his first § 2255 motion and the decision applies retroactively; and (3) the error is grave enough to be deemed a miscarriage of justice.” Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019) (internal quotation marks omitted). Again, unlike the Wheeler test, there is no requirement of a substantive change in law.
Finally, the Ninth Circuit requires only that the prisoner (1) “make[] a claim of actual innocence,” and (2) “not [have] had an unobstructed procedural shot at presenting that claim.” Allen v. Ives, 950 F.3d 1184, 1188 (9th Cir. 2020) (internal quotation marks omitted). A “procedural shot” could arguably be obstructed by case law misinterpreting Mathis, rather than having a law in place that is later substantively changed.
Therefore, because none of these out of circuit tests equate to Wheeler, we find Petitioner‘s reliance on them unconvincing.
III.
For these reasons, Mathis did not change the substantive law of the Supreme Court or this court. Because Petitioner cannot satisfy prong two of the Wheeler test, we affirm the district court.
AFFIRMED