875 F.3d 803 (6th Cir. 2017), 17-3211, Williams v. United States

Docket Nº:17-3211
Citation:875 F.3d 803
Opinion Judge:ROGERS, Circuit Judge.
Party Name:BRIAN D. WILLIAMS, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee
Attorney:Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant. Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant. Robert E. Bulford, UNITED STATES ATTORNEY'...
Judge Panel:Before: MERRITT, MOORE, and ROGERS, Circuit Judges. ROGERS, J., delivered the opinion of the court in which MOORE, J., joined in the result. MOORE, J. (pp. 6-9), delivered a separate opinion concurring in the judgment. MERRITT, J. (pp. 10-11), delivered a separate dissenting opinion. KAREN NELSON...
Case Date:November 15, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 803

875 F.3d 803 (6th Cir. 2017)

BRIAN D. WILLIAMS, Petitioner-Appellant,

v.

UNITED STATES OF AMERICA, Respondent-Appellee

No. 17-3211

United States Court of Appeals, Sixth Circuit

November 15, 2017

Argued: October 5, 2017.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:06-cr-00244-1; 1:16-cv-00520--Solomon Oliver Jr., District Judge.

In re Williams, (6th Cir., Oct. 27, 2016)

ARGUED:

Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant.

Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

ON BRIEF:

Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant.

Robert E. Bulford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: MERRITT, MOORE, and ROGERS, Circuit Judges. ROGERS, J., delivered the opinion of the court in which MOORE, J., joined in the result. MOORE, J. (pp. 6-9), delivered a separate opinion concurring in the judgment. MERRITT, J. (pp. 10-11), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

In this case the district court denied Brian Williams' motion to vacate his sentence under 28 U.S.C. § 2255. Williams received an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (" ACCA" ), and he petitioned for relief in light of the Supreme Court's decision in United States v. Johnson, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II " ), which struck down the residual clause of the ACCA as unconstitutional. Because binding circuit precedent establishes that Williams necessarily qualified for the enhancement under the ACCA elements clause, he is not entitled to relief.

On July 28, 2006, Williams pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Williams had three prior convictions--one for attempted felonious assault in violation of Ohio Revised Code § § 2903.11 and 2923.02, one for domestic violence in violation of Ohio Revised Code § 2919.25, and one for assault on a peace officer in violation of Ohio Revised Code § 2903.13--which subjected him to a mandatory-minimum sentence of 180 months' imprisonment under the ACCA. Williams did not take a direct appeal, but he has twice filed petitions under § 2255. Each was ultimately denied.

In Johnson II the Supreme Court held the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), unconstitutional. 135 S.Ct. at 2563. In Welch v. United States, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson II had announced a new substantive rule of constitutional law that courts must apply retroactively to cases on collateral review. Id. at 1268. Based on Johnson II and Welch, Williams filed this § 2255 motion, his third, seeking to vacate his sentence, arguing that after Johnson II his three convictions no longer count as predicate offenses under the ACCA. The district court transferred this case to us on April 19 so that we could decide whether to allow Williams' successive § 2255 petition.

On October 27, 2016, a panel of this court authorized the district court to consider whether Williams' conviction for Ohio felonious assault still qualifies as a violent felony under the ACCA. In re Brian D. Williams, No. 16-3411, (6th Cir. Oct. 27, 2016).1 We recognized our decision in United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), as a binding precedent which held that committing felonious assault in Ohio necessarily requires the use of physical force and is therefore a predicate offense under the ACCA elements clause, id. at 402, but also noted that " much has changed in the four years since we decided Anderson." We suggested but expressly did not hold that, because a conviction for felonious assault could be based on a showing of purely mental injury, the offense might not necessarily entail the use of physical force required by the elements clause. We instructed the district court to consider whether, in light of intervening Supreme Court precedents, Anderson still controlled Williams' case.

The district court determined that Williams' conviction for attempted felonious assault remained a qualifying predicate offense under the elements clause. The district court reasoned that Anderson was still controlling precedent that " squarely foreclose[d] Williams's claim." The district court denied Williams' motion to vacate his sentence but issued a certificate of appealability. Williams now appeals.

The district court was correct. As long as Anderson remains binding precedent, Williams is not entitled to relief. Because there is no tenable basis for this panel to overrule Anderson, the district court was correct to deny Williams' motion.

Williams bases his § 2255 motion on Johnson II, but his case is not affected by that holding. Section 2255 motions based on Johnson II are appropriate where " the sentencing court may have relied on the residual clause in imposing [the defendant's] sentence." In re Rogers, 825 F.3d 1335, 1338 (11th Cir. 2016) (quoting In re Adams, 825 F.3d 1283, 1286 (11th Cir. 2016)). But when binding precedent clearly establishes that a violent felony used to enhance the movant's sentence under the ACCA qualifies as a predicate offense under a separate provision of the ACCA, like the elements clause, the holding of Johnson II is not implicated because the enhancement would survive without the residual clause. That is the case here: Anderson, a published and binding circuit precedent, unambiguously held that the Ohio felonious assault statute, Ohio Rev. Code § 2901.01(A)(5), qualifies as a violent felony under the elements clause. See 695 F.3d at 402. As long as Anderson remains binding, Williams appropriately received an enhanced sentence irrespective of the now-unconstitutional residual clause.

Williams' motion therefore rises or falls with Anderson, but his arguments to overrule that case are not persuasive. Because Anderson is a published decision, we are bound by it unless the Supreme Court or our court sitting en banc has issued a new inconsistent decision. See

Hinchman v. Moore, 312 F.3d 198, 203 (6th Cir. 2002) (citing Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689...

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