UNITED STATES OF AMERICA v. AARON LEWIS, JR.
No. 17-7033
United States Court of Appeals, Tenth Circuit
September 13, 2018
PUBLISH
Elisabeth A. Shumaker, Clerk of Court
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. Nos. 6:16-CV-00169-JHP and 6:10-CR-00065-JHP-1)
Submitted on the briefs: Aaron Lewis, Jr., pro se.
Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
Petitioner Aaron Lewis, Jr., a federal prisoner acting pro se, seeks a certificate of appealability to appeal the district court‘s denial of his
In 2010, Petitioner pled guilty to being a felon in possession of a firearm, in violation of
At the time of sentencing, the ACCA defined “violent felony” via three possible clauses:
any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
- has as an element the use, attempted use, or threatened use of physical force against the person of another [use of force or elements clause]; or
- is burglary, arson, or extortion, involves use of explosives [enumerated clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . [residual clause].
In a
Petitioner has also adequately shown both cause and prejudice. His ”Johnson claim was not reasonably available” during the time when he could have filed a direct appeal, and this “is sufficient to establish cause.” Snyder, 871 F.3d at 1127-28; see also United States v. Driscoll, 892 F.3d 1127, 1131 (10th Cir. 2018). Moreover, if Petitioner is correct regarding his Johnson claim, he would no longer have the requisite number of predicate convictions for the ACCA sentencing enhancement. Given that a “sentence that is not authorized by law is certainly an ‘actual and substantial disadvantage’ of ‘constitutional dimensions,‘” Snyder, 871 F.3d at 1128 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)), Petitioner has demonstrated actual prejudice resulting from the alleged Johnson error, Driscoll, 892 F.3d at 1131-32. Thus, Petitioner‘s claim overcomes any procedural default. See Snyder, 871 F.3d at 1127-28; Driscoll, 892 F.3d at 1132.
Notwithstanding this preliminary analysis, we will only issue a COA “if the applicant has made a substantial showing of the denial of a constitutional right.”
Petitioner‘s only argument is that his 1991 conviction for Kansas burglary no longer qualifies a valid ACCA predicate, post-Johnson. The sentencing court did not articulate which of the three
When Petitioner was convicted of violating the Kansas burglary statute in 1991, this statute provided:
Burglary is knowingly and without authority entering into or remaining within any: (1) Building, mobile home, tent or other structure, with intent to commit a felony or theft therein; or (2) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony or theft therein. Burglary as described in subsection (1) is a class D felony. Burglary as described in subsection (2) is a class E felony.
Both subsections of this statute appear to go beyond the generic burglary definition by including tents or other places besides buildings. See United States v. Scoville, 561 F.3d 1174, 1178 (10th Cir. 2009) (holding that an Ohio trespassing statute went beyond generic burglary because it included “watercraft and tents“). Under the “relevant background legal environment” at the time of sentencing, it “would have been permissible for the district court to examine the underlying charging documents and/or jury instructions to determine if [Petitioner] was charged only with burglary of buildings.” Snyder, 871 F.3d at 1130; see also, e.g., Taylor, 495 U.S. at 602; Shepherd v. United States, 544 U.S. 13, 16 (2005) (“[A] later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.“); Scoville, 561 F.3d at 1178 (applying modified categorical approach to state statute that included unlawful entry into tents, vehicles, and buildings in order to determine whether defendant was charged with entering a building). The charging documents in this case readily answer this question. According to the information, Petitioner “unlawfully, feloniously, willfully, knowingly and without authority enter[ed] into and remain[ed] within a building . . . with the intent to commit a theft therein, contrary to K.S.A. 21-3715, (Burglary), a class D felony.” (R. Vol. I at 41.) Thus, based on the charging documents, “there would
However, after reviewing the district court‘s order and the relevant case law, we acknowledge that reasonable jurists could debate whether the district court erred in declining to retroactively apply Mathis v. United States, 136 S. Ct. 2243 (2016), on collateral review. Slack, 529 U.S. at 484; see United States v. Taylor, 672 F. App‘x 860, 864-65 (10th Cir. 2016) (“Because Mathis did not announce a new rule, [Petitioner] cannot rely on it in a
The applicability of Mathis and other post-sentencing law depends on the stage of Johnson review that the court is undertaking. As we previously stated in United States v. Wilfong, 2018 WL 1617654 (10th Cir. 2018):
[T]he two parts of our Johnson analysis present different inquiries. The first question asks, as a matter of historical fact, whether the sentencing court relied on the residual clause in imposing the ACCA sentence. . . . Our sole objective at that first stage of the analysis is to determine what the sentencing court did—even if that decision would be erroneous under current law. The answer to this question determines whether the movant is entitled to seek relief under Johnson at all. In contrast, the second part of our analysis tasks us with deciding whether an identified error is harmless as a matter of law. That is, we must decide whether the sentencing court‘s reliance on the now-invalidated residual clause prejudiced the movant. Our determination is not what the sentencing court did; it is whether the classification of the movant as an armed career criminal is correct. The government bears the burden of proof on this issue. . . . [W]e do not defer to the sentencing court‘s classification of offenses as violent felonies on harmless error review [because] unlike the sentencing court‘s historical basis for its imposition of an ACCA statute, our analysis of the correctness of the ACCA sentence occurs under current law.
Wilfong, 2018 WL 1617654, at *5 (emphases in original) (internal citations omitted); see also Driscoll, 892 F.3d at 1132, 1136. At the first stage, we are concerned with
We grant COA now because we recognize that our cases have not always explicitly signaled which stage of Johnson review we are undertaking when applying Mathis upon collateral review. Where a sentencing court does not indicate whether or not it relied on the now-unconstitutional residual clause, our collateral review must “loo[k] to the relevant background legal environment at the time of sentencing” to make an initial determination of whether the movant has established a Johnson error. Snyder, 871 F.3d at 1129. As Snyder makes clear: “[T]he relevant background legal environment is, so to speak, a ‘snapshot’ of what the controlling law was at the time of sentencing and does not take into account post-sentencing decisions that may have clarified or corrected pre-sentencing decisions.” Id. (emphasis added). Mathis and other current, post-sentence cases are only applicable at the harmless error stage of review, once the movant has established the existence of a Johnson error. To the extent that any of our recent case law applying Mathis can be read as doing so during the initial, historical analysis of whether a Johnson error occurred,, it is not controlling, as this circuit follows the earlier, settled precedent. See, e.g., United States v. Sabillon-Umana, 772 F.3d 1328, 1334 n.1 (10th Cir. 2014).
Having granted the COA, we nevertheless deny Petitioner‘s appeal on the merits. Though Petitioner asserted a timely Johnson claim, he has not successfully established a Johnson error, meaning that our analysis never progresses beyond the initial, historical evaluation of the sentencing court‘s decision. Petitioner was sentenced in 2010. Mathis was decided in 2016. Because Mathis is a “post-sentencing decision” that was not part of the “controlling law . . . at the time of sentencing,” we do not apply it on collateral review at this stage of the analysis.
We therefore GRANT Petitioner‘s request for a certificate of appealability, and