Elliott v. United States

• Decision Date: 14 July 2022
• Docket Number: 1:20-CV-0101-SWS,Criminal Case 1:15-CR-042-SWS
• Parties: JOEL S. ELLIOTT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of Wyoming

JOEL S. ELLIOTT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 1:20-CV-0101-SWS

Criminal Case No. 1:15-CR-042-SWS

United States District Court, District of Wyoming

July 14, 2022

ORDER DENYING SUCCESSIVE MOTION UNDER 28 U.S.C § 2255

Scott W. Skavdahl United States District Judge

On December 23, 2021, the Tenth Circuit Court of Appeals granted the Petitioner/Defendant Elliott a certificate of appealability and vacated this Court's January 13, 2021 order denying his second and successive motion under 28 U.S.C. § 2255. (See Order and Judgment, ECF No 60-1.) The appellate court further remanded this matter for consideration of Defendant's § 2255 motion in light of the Supreme Court's decision in Borden v. United States, 141 S.Ct. 1817 (2021). (Id.) This Court subsequently set a schedule for supplemental briefing from the parties. (See ECF No 66.) Having considered the additional briefing and for the reasons discussed below, the Court finds Borden does not provide a basis for granting the Defendant's successive § 2255 motion.

PROCEDURAL HISTORY

This matter came before the Court on Elliott's second or successive motion under 28 U.S.C. § 2255 to vacate or set aside his conviction and sentence (See ECF No 1) (CR Case ECF No. 211).

In October of 2015, Elliott was convicted of arson of a building owned or possessed by an entity receiving federal funds, in violation of 18 U.S.C. § 844(f), and using a firearm (destructive device) during and in relation to a crime of violence pursuant to 18 U.S.C. § 924(c). Elliott was also convicted of possessing an unregistered firearm and false declaration before a Grand Jury. He was sentenced to 444 months of imprisonment. (See Judgment, CR Case ECF No. 149.)

Elliott appealed his conviction, raising issues regarding the government's use of an undercover informant and the building occupant's receipt of federal funds. The Court of Appeals affirmed. See United States v. Elliott, 684 Fed.Appx. 685, 698 (10th Cir. 2017) (Elliott I). Elliott then filed his first § 2255 motion, arguing his trial counsel was constitutionally ineffective and the government violated the requirements of Brady v. Maryland, 373 U.S. 83 (1963). (CR Case ECF No. 204; CV Case No. 1:18-CV-0012-SWS.) This Court denied that motion, and the Court of Appeals denied Elliott's request for a COA to appeal that denial. See United States v. Elliott, 753 Fed.Appx. 624, 626 (10th Cir. 2018) (Elliott II).

Next, Elliott filed a Rule 60 motion, which this Court denied and declined to reconsider. (See Case No. 1:18-CV-0012-SWS, ECF Nos. 31, 36, 39, 41.) The Court of Appeals determined Elliott's Rule 60 motion and motion to reconsider were actually unauthorized second or successive § 2255 motions and remanded for this Court to dismiss them for lack of jurisdiction. United States v. Elliott, 807 Fed.Appx. 801, 804 (10th Cir. 2020) (Elliott III). Elliott subsequently asked the appellate court for authorization to file a second or successive § 2255 motion based on, among various other grounds, United States v. Davis, 139 S.Ct. 2319 (2019). (See CR Case ECF No. 209.) The Court of Appeals authorized the successive motion pursuant to § 2255(h)(2), but only insofar as it challenged his § 924(c) conviction and sentence under Davis. (See CR Case ECF No. 210.)

The bulk of Elliott's 444-month sentence was attributable to his § 924(c) conviction, which required a mandatory 360-month sentence to run consecutively with any other sentences. In Davis, the Supreme Court declared § 924(c)(3)(B) - one of two clauses defining a “crime of violence” - void for vagueness. 139 S.Ct. at 2324. Thus, the Court of Appeals “allowed Elliott to ask [this Court] whether his arson conviction qualifies as a crime of violence under § 924(c)(3)(A) - the clause that remained intact.”^[1]United States v. Elliott, No. 21-8016 (10th Cir. July 14, 2021) (Order Denying Certificate of Appealability at 3, vacated Dec. 23,2021).

Though Elliott raised various other issues in his successive motion, this Court addressed only the authorized Davis question. (See Order Denying Successive Motion Under 28 U.S.C. § 2255 at 2 n.2, ECF No. 23.) The Court first determined that employing fire or explosives to destroy or damage property necessarily involves the use of “physical force.” (Id. at 6-7.) In addition, the Court concluded the property at issue in § 844(f) is necessarily the property of another; that is so because it has as an element a requirement that the property damaged or destroyed by the arson be “in whole or in part owned or possessed by, or leased to, the United States” or one of its entities, or by an institution or organization receiving federal financial assistance. (Id. at 9.) Ultimately, this Court held, “[b]ecause Defendant's predicate federal felony - arson of a building owned or possessed by an entity receiving federal funds - separately satisfies § 924(c)(3)'s elements clause definition for the term ‘crime of violence,' ‘any Davis infirmity in [Defendant's] conviction is harmless.'” (Id. at 11) (citation omitted).

In reaching its conclusion, the Court did not much focus on § 844(f)'s mens rea requirement that a defendant have acted “maliciously.”^[2] The Court noted that the court of appeals had previously concluded the “maliciousness” element of the federal arson statutes could be satisfied by proof the defendant acted either intentionally or recklessly. (Id. at 6 n.3) (citing United States v. Wiktor, 146 F.3d 815, 818 (10th Cir. 1998)). And the Court further noted the Tenth Circuit had more recently held, based on the Supreme Court's decision in Voisine v. U.S, 136 S.Ct. 2272 (2016), an offense which can be committed with a “recklessness” mens rea can serve as a qualifying “crime of violence” under the elements clause, 18 U.S.C. § 924(c)(3)(A). (Id.) (citing United States v. Mann, 899 F.3d 898, 902-08 (10th Cir. 2018)). Accordingly, the Court denied Defendant's successive § 2255 motion, denied him a COA, and further denied his motion to reconsider. (See id; ECF Nos. 31, 44.) Elliott thereafter sought a COA from the Tenth Circuit Court of Appeals.

The appellate court initially denied Elliott a COA on July 14, 2021, agreeing with this Court's finding that the arson statute (§ 844(f)(1)) “necessarily has as an element physical force ‘against the . . . property of another.'” (ECF No. 58 at 6) (citing § 924(c)(3)(A)). However, upon panel rehearing, the Court of Appeals vacated its earlier order in light of Borden v. United States. See United States v. Elliott, No. 21-8016, 2021 WL 6110395 (10th Cir. Dec. 23, 2021). In ultimately granting Elliott a COA, the appellate court explained:

At the time of the district court's ruling, this court had held that an offense that can be committed with a mens rea of recklessness can serve as a qualifying crime of violence under 18 U.S.C. § 924(c)(3)(A). See United States v. Mann, 899 F.3d 898, 902-08 (10th Cir. 2018). This court had likewise held that an offense committed with a mens rea of recklessness can serve as a qualifying “violent felony” under § 924(e)(2)(B) of the Armed Career Criminal Act. See United States v. Pam, 867 F.3d 1191, 1207-08 (10th Cir. 2017), abrogated by Borden, 141 S.Ct. at 1817. This caselaw is relevant because the federal arson statute that served as a predicate for Elliott's § 924(c) conviction is violated if a defendant “maliciously damages or destroys, or attempts to damage or destroy,” certain types of property “by means of fire or an explosive.” 18 U.S.C. § 844(f)(1) (emphasis added). And this court has defined the term “maliciously” in this statute to include both intentional and reckless behavior. United States v. Wiktor, 146 F.3d 815, 818 (10th Cir. 1998).

The district court applied Mann in denying Elliott's § 2255 motion on January 13, 2021. See R., Vol. 4 at 154 & n.3. It affirmatively stated that “an offense that can be committed with a ‘recklessness' mens rea can serve as a qualifying ‘crime of violence' under ...§ 924(c)(3)(A).” Id. at 154 n.3. Five months later, the Supreme Court held in Borden that a criminal offense requiring only a mens rea of recklessness cannot count as a violent felony under the elements clause of the Armed Career Criminal Act, § 924(e)(2)(B)(i). 141 S.Ct. at 1821-22, 1825. The Court focused on the meaning of “against another” within the phrase the “use of physical force against the person of another” in the definition of “violent felony” in § 924(e)(2)(B)(i). It reasoned that “ ‘against another[ ]' ... demands that the perpetrator direct his action at, or target, another individual” and “[r]eckless conduct is not aimed in that prescribed manner.” 141 S.Ct. at 1825. The language in § 924(e)(2)(B)(i) closely resembles the language in § 924(c)(3)(A), except the former states “against the person of another” while the latter states “against the person or property of another.”

Having considered this recent legal development, we now conclude that “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further,” Slack [v. McDaniel, 529 U.S. [473, 484 (2000)] (internal quotation marks omitted). Because Elliott has made a substantial showing of the denial of a constitutional right, a COA should issue.

Elliott, No. 21-8016,2021 WL 6102495, at *1-2 (10th Cir. Dec. 23,2021).

BACKGROUND

On June 4, 2014, the Defendant caused an explosion and fire in a building owned by Sheridan County, Wyoming and used by the Sheridan County Attorney's Office. Elliott I, 684 Fed.Appx. at 686, 696-97. At the time, Sheridan County was the recipient of federal funds. Id. at 696. As a result of his conduct, Defendant was charged...