UNITED STATES оf America, Plaintiff-Appellee, v. Robert A. JENKINS, Jr., Defendant-Appellant.
No. 13-6506
United States Court of Appeals, Sixth Circuit.
Oct. 27, 2014.
770 F.3d 507
Two responses. First, this argument does not solve the рroblem identified above—that AEDPA deference applies to the Ohio Supreme Court‘s adjudication on the merits of the Atkins claim. Frazier cannot show that the state court‘s ruling was unreasonable, as the majority surely agrees because it rejects that claim even without applying deference.
Second, the majority placеs more weight on Sawyer and Herrera than they can bear. The death-row inmate in Sawyer sought to avoid procedural default of potential Brady and Strickland clаims by arguing that, but for the alleged violations, he could have introduced evidence negating a state-law element of death-penalty eligibility. The Supreme Court agreеd with his logic but held that he failed his own test. Sawyer, 505 U.S. at 352, 112 S.Ct. 2514. That test, the Court later explained, requires the petitioner to “seek excusal of a procedural error [i.e., a procedural default] so that he may bring an independent constitutional claim challenging his conviction or sentence.” Herrera, 506 U.S at 404, 113 S.Ct. 853 (emphasis added). That is not this case. Frazier offers а gateway claim of actual innocence (that he was actually innocent of the death sentence given his mental acuity) but no “independent constitutional сlaim” attached to it. Without the one, he cannot bring the other. Otherwise, the concept of procedural default would never apply to Atkins claims—a remarkable irony given the Court‘s decision to delegate to state courts the best way to implement and enforce Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (“[W]e leave to the States the task of developing аppropriate ways to enforce the constitutional restriction upon their execution of sentences.” (internal quotation marks omitted)), and a remarkable irony given the “well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federаl courts,” Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
For these reasons, I join all but Section III.A of the majority opinion.
ON BRIEF: Deanna L. Dennison, Covington, KY, for Appellant. Charles P. Wisdom, Jr., Neeraj K. Gupta, United States Attorney‘s Offiсe, Lexington, KY, for Appellee.
OPINION
SUTTON, Circuit Judge.
When Robert Jenkins pleaded guilty to being a felon in possession of a firearm, that was the least of his problems. This was not his first encounter with the criminal laws, and the Armed Career Criminal Act (ACCA) does not take kindly to recidivists. It imposes a mandatory minimum fifteen-year sentence on anyone previously convicted of three or more violent felonies that occurred “on occasions different from one another.” Kentucky previously convicted him of robbing nine different homes during аn alcohol-and-drug-induced crime spree that, depending on whom you believe, lasted one day or four days. The district court determined that Jenkins’ nine robberies, involving homes separated by one to two miles apiece, amounted to distinct violent felonies. We affirm.
In 2012, Robert Jenkins pleaded guilty to violating the federal felon-in-possession statute. See
The Armed Career Criminal Act enhances punishments for anyone convicted of three or more violent felonies that occurred “on occasions different from one another.”
Unhappily for Jenkins, these questions do not help his cause. Each burglary began when he broke in and ended when he left with the stolen goods. He could have called it a night after leaving each house, but instead traveled “a mile оr two” to continue his spree someplace else. And each burglary violated a different victim‘s home. Sealed R. 64 at 6. The district court correctly ruled that Jenkins had previously committed three (indeed nine) violent crimes. See United States v. Carnes, 309 F.3d 950, 955-56 (6th Cir.2002) (treating two burglaries of “adjacent homes” as separate offenses). It matters not whether Jenkins or the Government is right about the number of days this crime spree lasted. Even under Jenkins’ version of
Jenkins claims that the phrase “committed on occasions different from one another” is unconstitutionally vague. But the Due Process Clause does not force Congress to legislate in “encyclopedic[] terms.” Sykes v. United States, — U.S. —, 131 S.Ct. 2267, 2277, 180 L.Ed.2d 60 (2011). “[G]eneral,” “qualitative,” or “normative” terms suffice, id., so long as they are “sufficient[ly] definite[] that ordinary people can understand what conduct is prohibited” and sufficiently constrained that the possibility of “arbitrary and discriminatory enforcement” is limited, Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Fоr some time, our court and others have consistently held that “crimes occurring at separate times, at separate locations, and against separate victims” are separate criminal episodes, providing ample notice to the citizenry of the consequences of such crimes, whether serially committed or not. United States v. Michel, 446 F.3d 1122, 1136 (10th Cir.2006) (listing cases). Having sequentially burglarized nine separate houses, Jenkins cannot credibly claim that he was ambushed by the district court‘s decision to apply the Act agаinst him. No due process violation occurred.
Jenkins separately questions our decision in Hill, invoking our unpublished decision in United States v. Mann and some of the criticisms leveled against Hill in it. 552 Fed.Appx. 464 (6th Cir.2014). This is more molehill than mountain. All Hill does is sharpen the inquiry by focusing the court on the kinds of questions that have come up in prior ACCA cases. It does not purport to be an exclusive list of questions or otherwise require courts to ignore other circumstances that might affect the “occasions different from one anothеr” analysis. Dictum in United States v. Jones, to the effect that an affirmative answer to any one Hill question requires the conclusion the crimes are distinct, is just that: dictum. 673 F.3d 497, 503 (6th Cir.2012). Thus, when deciding whether criminal conduct amounts to two crimes or one, it is well to use the Hill questions—all based on prior decisions from our court—as informative standards, not hidebound rules.
By any standard, Jenkins comes up short, as this robbery spree bears little resemblance tо crimes treated as occurring on the same occasion. We have combined two crimes when one did not end before the other began. See United States v. Thomas, 211 F.3d 316, 321 (6th Cir.2000); United States v. Murphy, 107 F.3d 1199, 1210 (6th Cir.1997). But that did not happen here. We have combined two crimes when they took place “at the same location” and “within moments” of each other. United States v. Graves, 60 F.3d 1183, 1187 (6th Cir.1995); see also Mann, 552 Fed.Appx. at 470. But that did not happen here. And we have combined two crimes when the Government provided no evidence to show that they did not overlap. See Barbour, 750 F.3d at 540-42. But that did not happen here. The district court properly treated Jenkins as an armed career criminal.
For these reasons, we affirm.