UNITED STATES of America, v. Ralph T. WILSON, Defendant.
Criminal No. 96-0157 (ESH)
United States District Court, District of Columbia.
Signed 04/18/2017
249 F.Supp.3d 308
ELLEN SEGAL HUVELLE, United States District Judge
IV. CONCLUSION
Based upon the reasons contained in this Opinion, it is this 13th day of April, 2017, hereby ORDERED, that the entry of Judgment is to be corrected to add the following:
- The $162,500 in arbitral fees that the Arbitral Tribunal awarded to Leidos;
- The post-award pre-judgment interest at the six percent simple interest rate which the Arbitral Tribune awarded Leidos, totaling € 8,115,607.64, plus $ 34,031.51;
- Conversion of the total Judgment amount into United States dollars using the exchange rate in effect on the date of the arbitral award; and
- Correction of the Final Judgment to the amount of $62,731,104.80, reflecting the total amounts awarded to Leidos in the Final Award, post-award pre-judgment interest awarded to Leidos in the Final Award, and conversion into United States Dollars; and
- The post-judgment interest at the statutory rate mandated by
28 U.S.C. § 1961 on the money judgment.
ELLEN SEGAL HUVELLE, United States District Judge
Defendant Ralph T. Wilson has filed a motion pursuant to
BACKGROUND
On November 26, 1997, defendant entered a plea of guilty to one count of possession of a firearm by a convicted felon after having been previously convicted of three crimes involving a violent felony or a serious drug offense, in violation of
At the time defendant was sentenced, the ACCA defined a “violent felony” as: 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; or
- is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physiсal injury to another.
Defendant had one year from the date of Johnson 2015 to file a
On June 28, 2016, the FPD filed defendant‘s abridged
Mr. Wilson did not appear on the United States Sentencing Commission‘s list of those sentenced under the ACCA and counsel was unaware of his ACCA sentence until receiving a telephone call on June 28, 2016 alerting counsel to this case. While counsel has not received all documents needed to properly assess this case, counsel is filing this motion to preserve Mr. Wilson‘s ability to challenge his ACCA sentence. After receipt of documents confirming the viаbility of Mr. Wilson‘s challenge, this motion will be supplemented by October 26, 2016, in accordance with the June 2, 2016, Standing Order.
(Id. at 1.) Defendant‘s fully briefed motion was timely filed on October 26, 2016. (See Def.‘s Supp. Mot. to Vacate Judgment Under 28 U.S.C. § 2255, ECF No. 51 (“Def.‘s Supp. Mot.“).) On December 30, 2016, the government filed an opposition (United States’ Opp‘n to Def.‘s Mot. & Supp. Mot., ECF No. 53 (“Gov‘t Opp‘n“)), and defendant filed a reply on January 31, 2017. (Def.‘s Reply Mem. in Support of Mot. & Supp. Mot., ECF No. 57 (“Def.‘s Reply“)).
ANALYSIS
Defendant‘s
I. LEGAL STANDARD
A federal prisoner may petition a district court to vacate, set aside, or correct his sentence on the grounds “that the sentence was imposed in violation of the Constitution or laws of the United States, ... or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”
II. PROCEDURAL ISSUES
The government argues that defendant‘s claim should be rejected without reaching the merits either because it is untimеly or because it was “procedurally defaulted.”
A. Timeliness
The government argues that defendant‘s claim is not a timely Johnson 2015 claim for three reasons: (1) the record does not establish that the sentencing court actually relied on the residual clause; (2) the claim is really based on an earlier Supreme Court case, Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (”Johnson 2010“), not Johnson 2015; and (3) even if the claim is based on Johnson 2015, it was filed one-day late.
1. Actual Reliance on Residual Clause
The government first argues that defendant‘s motion is untimely because defendant “has not carried his burden of showing that the district court actually relied on the residual clause to find that his prior convictions for [Maryland Robbery and DC ADW] qualified as violent felonies.” (Gov‘t Opp‘n at 8-9 (emphаsis added).) According to the government, unless defendant can make this showing, he cannot pursue a claim based on Johnson 2015, and the statute of limitations for any other claim expired long ago. Defendant does not dispute that the record in this case does not indicate whether the sentencing court actually relied on the residual clause, but argues that proof of actual reliance is not necessary to bring a claim based on Johnson 2015.
The government‘s position has been rejected by virtually every court to have considered the question, including by two other judges in this district.9 See United States v. Booker, No. 04-cr-0049, 240 F.Supp.3d 164, 167-70, 2017 WL 829094, at *3-*4 (D.D.C. Mar. 2, 2017) (Friedman, J.) (“The Court declines to impose the government‘s reliance requirement because [defendant] has done all that is required of him: shown that the sentencing judge might have relied on the now unconstitutional residual clause.“); United States v. Brown, No. 09-0358, 249 F.Supp.3d 287, 291, 2017 WL 1383640 (D.D.C. Apr. 12, 2017) (Sullivan, J.) (same); see also United States v. Winston, 850 F.3d 677, 682 (4th
The reasoning of these other courts is persuasive. Several point out that the situation is closely analogous to a claim of unconstitutional jury instructions, where a “‘general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground.‘” See Ladwig, 192 F. Supp. 3d at 1158 (quoting Zant v. Stephens, 462 U.S. 862, 881, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)). In addition, “judges are not required by law to state at sentencing whether they are relying on the residual clause or the elements clause,” and “there was no practical reason for judges to make this distinction at sentencing prior to June 26, 2015, when the Supreme Court decided that the residual clause was void for vagueness.” Booker, 240 F.Supp.3d at 168, 2017 WL 829094, at *3; see also Brown, 249 F.Supp.3d at 291-92. Under those circumstances, to penalize defendant for the absence of a clear record would impose an unfair burden. Shabazz, 2017 WL 27394, at *5 (“requiring a petitioner to make an affirmative showing on a record that is not only more than ten years old, but was made at a time when I had no reason to identify on which ACCA clause his sentence relied would be inequitable and would render 2015 Johnson relief virtually impоssible to obtain“); Winston, 850 F.3d at 682 (“We will not penalize a [defendant] for a court‘s discretionary choice not to specify under which clause of Section
Accordingly, the Court concludes that defendant may bring a Johnson 2015 claim without establishing that the sentencing judge actually relied on the residual clause.
2. Johnson 2010
The government next argues that defendant‘s claim is untimely because it is not really based on the Supreme Court‘s Johnson 2015 decision, but rather on an earlier decision, Johnson 2010, for which the one-year filing deadline expired long ago.
Johnson 2010 concerned the meaning of the term “physical force” in the “elements” clause of the ACCA,
However, the fact that Johnson 2010 is relevant to the merits of defendant‘s claim does not mean that his claim cannot be basеd on Johnson 2015. To the contrary, “[i]t is only as a result of 2015 Johnson‘s voiding of the residual clause that [defendant] could reasonably argue that he is no longer eligible for the ACCA enhancement.” Diaz, 2016 WL 4524785, at *5 (internal quotation marks and citation omitted); see also, e.g., Booker, 240 F.Supp.3d at 169, 2017 WL 829094, at *4 (relevance of Johnson 2010 “does not convert [defendant‘s] Johnson [2015] motion into a habeas motion based on older cases“); Brown, 249 F.Supp.3d at 292 (same); Shabazz, 2017 WL 27394, at *4 (“Although [defendant‘s] Elements Clause argument engages with the 2010 Johnson holding, the availability of that argument in this case is wholly a product of the new rule announced in 2015 Johnson.“); United States v. Winston, 207 F.Supp.3d 669, 673 n.1 (W.D. Va. 2016) (“Government‘s procedural attack on Defendant‘s petition as focusing solely on Johnson [(2010)] is likely better understood as a substantive argument that—even after receiving the benefit of Johnson [(2015)]—Defendant has not suffered prejudice, because his сonviction nonetheless falls within the [elements] clause.“); Ladwig, 192 F. Supp. 3d at 1159-60 (“Only with Johnson [2015]‘s invalidation of the residual clause could [defen-
3. Equitable Tolling
The government‘s last challenge to the timeliness of defendant‘s motion is based on the fact that the one-year period for filing claims based on Johnson 2015 expired on Monday, June 27, 2016, but defendant‘s motion was not filed until the following day, Tuesday, June 28, 2016. Defendant acknowledged from the outset that the motion was filed one day late (sеe Def.‘s Mot. at 1), but asserts that the circumstances warrant equitable tolling (Def.‘s Supp. Mot. at 8). The government recognizes that equitable tolling is available, but takes the position, albeit only in a footnote, that “it is not clear that defendant is entitled to equitable tolling here.” (Gov‘t Opp‘n at 10 n.7.)
A defendant is “entitled to equitable tolling” if he can show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649-51, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Given the circumstances in the present case, the Court finds that equitable tolling is appropriate. Once the Supreme Cоurt decided Welch in March 2016, opening the door for collateral attacks based on Johnson 2015, very little time remained for a defendant to file a
B. Procedural Default
Even if defendant‘s motion is timely, the government argues that his claim is barred by the procedural default rule because he did not challenge the constitutionality of the residual clause before the sentencing court or on direct appeal.
“The general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (“Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.‘” (internal citations omitted)); United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). “The procedural-default rule is neither a statutory
nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law‘s important interest in the finality of judgments.” Massaro, 538 U.S. at 504.
Defendant concedes that his claim was not previously raised, but he argues that he has established both cause excusing his procedural default and “actual prejudice” resulting from the errors of which he complains. The Court agrees.
A defendant can show cause where a claim is “so novel that its legal basis [was] not reasonably available to counsel.” Bousley, 523 U.S. at 622. That is certainly the case here where, as the D.C. Circuit recently noted, “no one ... could reasonably have anticipated Johnson [2015].” Redrick, 841 F.3d at 480. Thus, the Court finds, as have a number of other courts, that “[u]ntil the Supreme Court announced its new rule in Johnson, [defendant] did not have a reasonable basis upon which to challenge the constitutionality of ACCA‘s residual clause.” Booker, 240 F.Supp.3d at 170, 2017 WL 829094, at *5 (internal quotations omitted); Brown, 249 F.Supp.3d at 292-93 (same); see also Carpio v. United States, No. C16-0647, 218 F.Supp.3d 1182, 1194-95, 2016 WL 6395192, at *8 (W.D. Wash. Oct. 28, 2016) (before Johnson 2015 “the Supreme Court had twice rejected a constitutional challenge to the residual clause“); United States v. Sabetta, 221 F.Supp.3d 210, 225-26, 2016 WL 6157454, at *11 (D.R.I. 2016) (same).10
To establish prejudice, a defendant “must at least demonstrate that ‘there is a reasonable probability that, but for [the errors], the result of the proceeding would have been different.‘” United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The Court may “assume for purposes of [the prejudice] analysis that there was [] error.” Id. at 1145. Here, the prejudice from the alleged error is clear: the ACCA subjected defendant to a 15-year mandatory minimum; absent the ACCA, the statutory maximum sentence for his offense would have been 10 years. See Brown, 249 F.Supp.3d at 293-94; see also United States v. Hope, No. CR 07-91, 2017 WL 1164352, at *2 (D. Mont. Mar. 28, 2017) (“a claim that the ACCA‘s now-invalid residual clause was used to a defendant‘s detriment at sentencing (by substituting a fifteen-year mandatory minimum for a ten-year maximum penalty) would be an error of a magnitude that would undoubtedly lead to actual prejudice to the defendant“); Carpio, 218 F.Supp.3d at 1194-95, 2016 WL 6395192, at *8 (same).
Since defendant has established both cause and prejudice, his claim is not barred by the procedural default rule.
III. MERITS
Having concluded that defendant‘s claim is timely and not barred by the procedural default rule, the Court will proceed to consider it on the merits. Defendant argues that his ACCA sentence is unlawful
To determine whether a prior conviction qualifies as a “violent felony” under the elements clause, courts use what is known as the “categorical approach.” Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). The “categorical approach” means that cоurts look at the “elements” of the generic offense rather than the particular facts underlying a conviction. Id.; Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 2253, 195 L.Ed.2d 604 (2016); United States v. Sheffield, 832 F.3d 296, 314 (D.C. Cir. 2016) (courts look at “‘how the law defines the offense and not in terms of how an individual defendant might have committed it on a particular occasion‘” (quoting Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008))). Thus, irrespective of a defendant‘s actual criminal conduct, a prior conviction will qualify as a violent felony under the elements clause only if the generic offense “has as an element the use, attempted use, or threatened use of physical force against the person of anоther.”
The first step in determining whether a state law offense is a violent felony under the elements clause is to look at the state‘s definition of the offense. In Maryland, robbery is defined as “the fеlonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or by putting him in fear.”11 See Coles v. Maryland, 374 Md. 114, 821 A.2d 389, 394 (2003); West v. Maryland, 312 Md. 197, 539 A.2d 231, 233 (1988). Although “force” is not expressly part of this definition, it is well-established that “[t]he hallmark of robbery, which distinguishes it from theft, is the presence of force or threat of force, the latter of which also is referred to as intimidation.” Coles, 821 A.2d at 395; see also Spencer v. Maryland, 422 Md. 422, 30 A.3d 891, 898 (2011) (“Common law robbery has a long history of requiring the State to prove either the use of force or the threat of force in order to distinguish robbery from the lesser offense of larceny, or theft.“); Md. Pattern Jury Instructions-Criminal § 4.28 Robbery (“In order to convict the defendant of robbery, the State
But that is only the first step of the analysis. The next question is whether the force required to commit Maryland Robbery is the equivalent of the force required by
Under Maryland law, a robbery committed by use of force means that the “the taking must be accompanied or preceded by actual violence directed at the victim.” Raiford v. Maryland, 52 Md.App. 163, 447 A.2d 496, 499 (1982), aff‘d in part, rev‘d in part on other grounds, 296 Md. 289, 462 A.2d 1192 (1983). “Actual violence includes both injury to the person and the overcoming of any resistance offered by the victim.” Id. “[T]he mere force that is required to take possession, when there is no resistance, is not enough, i.e., the force must be more than is needed simply to move the property from its original to another position.” West, 539 A.2d at 234 (quoting Cooper v. Maryland, 9 Md.App. 478, 265 A.2d 569, 571 (1970)). But “if [the victim] resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance.” West, 539 A.2d at 234 (quoting Cooper, 265 A.2d at 571); see also Facon, 796 A.2d at 119 (“the degree of force necessary to constitute a robbery is immaterial ‘so long as it is sufficient to compel the victim to part with his property‘” (quoting West, 539 A.2d at 234)), rev‘d on other grounds, 375 Md. 435, 825 A.2d 1096 (2003).
The government is correct that Maryland Robbery cannot be accomplished simply by taking property by sudden or stealthy seizure or snatching. Seе, e.g., West, 539 A.2d at 235 (no robbery under Maryland law where the “only force applied was that necessary to take the pocketbook from her hand” and the victim was not aware her purse had been stolen until she saw the defendant running away). Yet, that does not answer the critical question: whether the level of force required to overcome resistance, under Maryland law, is necessarily the same level of force required by
Based on these decisions, the Court concludes that the force required to overcome resistance and support a conviction for Maryland Robbery does not necessarily rise to the level of violent force capable of causing physical injury. Accordingly, a prior conviction for Maryland Robbery is not a qualifying conviction under the elements clause.12 Without the Maryland Robbery conviction, defendant does not have three qualifying prior convictions, and his ACCA sentence is unlawful.
CONCLUSION
For the reasons stated above, the Court concludes that defendant has shown that his “sentence was in excess of the maximum authorized by law.”
Eduardo UNTALASCO, Plaintiff, v. LOCKHEED MARTIN CORPORATION, Defendant.
No. 16-cv-0672 (KBJ)
United States District Court, District of Columbia.
Signed 04/18/2017
ELLEN SEGAL HUVELLE
United States District Judge