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Sixth Circuit Announces § 2244(B)(1) Doesn’t Apply to Successive § 2255 Petitions and Rules That If the District Court Relied on Residual Clause of ACCA When Determining Prior Conviction Qualified as Predicate Felony, Then Sentence Cannot Stand

by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit announced that limitation of 28 U.S.C. § 2244(b)(1) doesn’t apply to successive § 2255 petitions and ruled that if it is appears more likely than not that the district court relied on the residual clause of 18 USC § 924(e) (“ACCA”) when determining a prior conviction qualified as a predicate violent felony, then the sentence cannot stand.

In 2000, Brian Williams was convicted of felonious assault in violation of Ohio Rev. Code § 2903.11(A), which provides, “No person shall knowingly do either of the following: (1) Cause serious physical harm to another ...; (2) Cause or attempt to cause physical harm to another ... by means of a deadly weapon or dangerous ordnance.” None of the Shepard documents made clear which subsection Williams was convicted of violating. (Shepard documents include the indictment, transcripts of sentencing hearing/colloquy, and plea agreement. Shepard v. United States, 544 U.S. 13 (2005))

Then in 2006, Williams was convicted of being a felon in possession of a firearm. The trial court counted the felonious assault conviction as one of the qualifying three prior violent felony convictions necessary to impose upon Williams an enhanced sentence of 180 months in prison under the ACCA.

Over the next few years, Williams filed three pro se 28 U.S.C. § 2255 petitions, which were denied. In the second and third petitions, he alleged one of his prior convictions did not qualify as a predicate offense under the ACCA.

Then, in March 2016, Williams, with an attorney’s assistance, filed a fourth § 2255 petition alleging the sentencing judge relied on the ACCA’s residual clause when determining the felonious assault qualified as a predicate violent felony conviction. The district court denied the petition, which was affirmed by a panel of the Sixth Circuit. However, on rehearing en banc, the case was remanded to the panel.

First, the panel had to determine if it had jurisdiction to address the merits of Williams’ petition. The Court observed, “A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(1). And “[a] second or successive [§ 2255] motion must be certified as provided in section 2244 ... to contain — (1) newly discovered evidence ... or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).

Even though § 2255 requires the Court to refer to § 2244(b)(1) when the petition is a successive one, the Court determined that the limitation of § 2244(b)(1) applies only to § 2254 habeas petitions filed by prisoners in state custody. It doesn’t apply to Williams because he was a federal prisoner filing a § 2255 petition.

The Court acknowledged that Charles v. Chandler, 180 F.3d 753 (6th Cir. 1999), and In re Liddell, 722 F.3d 737 (6th Cir. 2013) suggest otherwise, but the Court determined those decisions aren’t binding upon it in the present case because neither decision actually held that § 2244(b)(1) applies to § 2255 petitions—they merely suggested as much in nonbinding dictum. But dictum does not bind future panels. In re Campbell, 874 F.3d 454 (6th Cir. 2017).

In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court of the United States (“SCOTUS”) ruled that the residual clause of the ACCA is unconstitutionally vague. SCOTUS instructed that Johnson is “a substantive decision and so has retroactive effect ... in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257 (2016). Thus, Williams’ successive petition raised a claim that gave the Court jurisdiction per § 2255(h)(2).

Formerly, the Sixth Circuit held that Ohio Rev. Code 2903.11(A)(1) satisfies the elements clause of the ACCA, but that holding was recently overruled. Compare United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), with United States v. Burris, 912 F.3d 386 (6th Cir. 2019).

In order to prevail on his Johnson/Welch claim, a defendant must show it was “more likely than not that the district court relied only on the residual clause in sentencing him.” Dimott v. United States, 881 F.3d 232 (1st Cir. 2018).

When determining whether a sentencing judge found a prior felony to be a qualifying predicate under the ACCA’s residual clause, the reviewing court considers five sources of evidence, including case precedent at the time of sentencing. Dimott. Ohio’s aggravated assault statute is functionally identical to the felonious assault statute. Anderson. The aggravated assault statute does not qualify under the elements clause but does qualify under the residual clause of the ACCA. United States v. Calloway, 189 F. App’x 486 (6th Cir. 2006).

The panel observed that since the Shepard documents provide no clarity on whether Williams was convicted under subsection (A)(1) or (A)(2), the sentencing judge relied on the Calloway decision when determining Williams’ felonious assault is a qualifying predicate. That is, the felonious assault is functionally identical to aggravated assault, and at the time of Williams’ sentencing, the Calloway precedent had held aggravated assault qualifies under the residual clause. Therefore, it is more likely than not that the judge relied only on the residual clause when sentencing Williams. The Court concluded Williams’ sentence could not stand because the residual clause was struck down by SCOTUS. Accordingly, the Court vacated his sentence and remanded for resentencing. See: Williams v. United States, 927 F.3d 427 (6th Cir. 2019). 

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