In re Clayton

• Decision Date: 18 July 2016
• Docket Number: No. 16-14556-J,16-14556-J
• Citation: 829 F.3d 1254
• Parties: In re: Charles Clayton, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

829 F.3d 1254

In re: Charles Clayton, Petitioner.

No. 16-14556-J

United States Court of Appeals, Eleventh Circuit.

Date Filed: July 18, 2016

Michael Caruso, Federal Public Defender, Elizabeth Rainbow Willard, Federal Public Defender's Office, Miami, FL, for Petitioner.

Wifredo A. Ferrer, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Successive Habeas Respondent.

Before: MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

ORDER:

Charles Clayton seeks permission to file a 28 U.S.C. § 2255

motion based on Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Because Mr. Clayton previously filed a § 2255 motion, his new motion must be “certified as provided in section 2244 by a panel of the appropriate court of appeals to contain ... 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)(2). “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C). Mr. Clayton was sentenced in 2010 using United States Sentencing Guidelines § 4B1.1. This court has held that Johnson does not apply to sentences that were based on USSG § 4B1.1. See United States v. Matchett , 802 F.3d 1185, 1196 (11th Cir. 2015). Mr. Clayton has therefore not made “a prima facie showing” that his motion will meet § 2255(h)'s requirements for second or successive § 2255 motions. 28 U.S.C. § 2244(b)(3)(D).

APPLICATION DENIED.

MARTIN

, Circuit Judge, with whom JILL PRYOR, Circuit Judge, joins, concurring in result:

Six years ago Charles Clayton was sentenced to 30 years in prison for possessing a kilogram of cocaine with intent to distribute. The criminal law he violated required a sentence of at least 10 years. But beyond the statute, Mr. Clayton faced the United States Sentencing Guidelines, which call for longer prison sentences for defendants who had been convicted of certain crimes earlier in their lives. Specifically, Mr. Clayton was sentenced based on a guideline that sets a longer sentence for defendants whose earlier crime “involves conduct that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2)

. After Mr. Clayton was sentenced in 2010, the Supreme Court told us that these identical 13 words in the Armed Career Criminal Act (ACCA) are so vague as to violate the Due Process Clause of our Constitution. See Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

Since Johnson was decided, prisoners sentenced based on these words in the Sentencing Guidelines have come into federal courts seeking the same relief Johnson has given to prisoners sentenced based on the same words in the statute. Every other court of appeals has either held or assumed that Johnson makes the language in § 4B1.2(a)(2) of the Sentencing Guidelines unconstitutional.¹ Our court alone has held otherwise. See United States v. Matchett , 802 F.3d 1185 (11th Cir. 2015)

. Over nine months ago Mr. Matchett asked this court to rehear his case, but we have yet to rule on his petition for rehearing. Because no ruling has issued on his petition and because the Supreme Court has now granted certiorari in a case that will evaluate this court's ruling in Matchett ,² I will write in Mr. Clayton's case to highlight the problems Matchett has caused people like him since it issued on September 21, 2015.

While I'm at it, Mr. Clayton's case also gives an opportunity to describe other ways our court has limited the reach of Johnson for people who may be serving unlawful sentences imposed in the federal courts of Alabama, Florida, and Georgia. Generally a person who finds himself serving an illegal sentence can seek relief by filing what is known as a § 2255

motion. Mr. Clayton filed a § 2255 motion in 2013. The statute governing § 2255 motions, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), restricts a prisoner's ability to file more than once. Specifically, AEDPA allows a prisoner who already filed one § 2255 motion to file another (what the statute refers to as a “second or successive” motion) only if he first applies for and gets permission from the court of appeals. Mr. Clayton filed one of these applications. When courts of appeals get these applications AEDPA directs us to “certif[y]” whether the applicant made “a prima facie showing” that his § 2255 motion will “contain ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. §§ 2244(b)(3)(C), 2255(h). In the last couple of months, this court has received hundreds of these applications from prisoners who want relief based on the Supreme Court's ruling in Johnson .

In deciding these applications, we have been doing far more than what the statute directs. The judges of this court, myself included, have been combing through sealed records from the prisoner's original sentence hearing and going ahead to make a decision about whether the prisoner will win if we let him file his § 2255

motion in district court. We are making these decisions “without briefing or argument from a lawyer.” In re McCall , 826 F.3d 1308, 1311, 2016 WL 3382006, at *2 (11th Cir. June 17, 2016) (Martin, J., concurring). Most troubling of all, none of these decisions can be appealed, even if it turns out we decided wrong. See 28 U.S.C. § 2244(b)(3)(E).

I.

I first address this court's Matchett ruling, which has had the effect of locking prisoners into harsh sentences that I understand every other circuit to be reexamining. Matchett affects a lot of people. In fiscal year 2014 alone, 2,269 people in this country were sentenced using USSG § 4B1.1

, known as the “career offender” guideline.³ No matter how short a sentence the guidelines might otherwise call for a defendant to get, if he is designated as a career offender then he is placed in the worst class of offenders and the judge is expected to impose the maximum sentence. See United States v. LaBonte , 520 U.S. 751, 754, 117 S.Ct. 1673, 1675, 137 L.Ed.2d 1001 (1997) ( “Pursuant to that Guideline, each defendant who qualifies for career offender status is automatically placed in criminal history ‘Category VI,’ the highest available under the Guidelines.”). To be clear, this drastic increase is required by statute. See 28 U.S.C. § 994(h) (“The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants ... convicted of two or more prior felonies, each of which is ... a crime of violence.”).

The guidelines define the term “crime of violence” from 28 U.S.C. § 994(h)

in three ways, one of which uses the 13 words the Supreme Court ruled unconstitutional in Johnson . See USSG § 4B1.2. The term “crime of violence” is also used in several other places in the Sentencing Guidelines, so these 13 words can trigger higher sentences by way of those provisions as well. See, e.g. , id. § 2K1.3 (the guidelines section for crimes involving explosives); id. § 2K2.1 (the section for firearm crimes, which can double a defendant's guidelines range based on one “crime of violence” or triple or quadruple it based on two⁴ ); id. § 2S1.1 (the section for laundering crimes); id. § 7B1.1 (the section for probation and supervised release violations).

Since 2005, the Sentencing Guidelines are no longer mandatory, meaning that sentencing judges can now impose sentences above or below the sentence called for by the guidelines. Still, experience has shown us that sentencing judges rarely use their discretion to impose sentences up to the level called for by the career offender penalty (§ 4B1.1

) when that penalty doesn't apply.⁵ Although I am sure he would prefer otherwise, Mr. Clayton's case is a good example of the enormous impact § 4B1.1 can have. Mr. Clayton received a § 4B1.1 sentence based on a 1994 Florida conviction. Back in 1994, the Florida court punished Mr. Clayton for this crime by giving him a sentence of probation and a $250 fine. When Mr. Clayton was sentenced in federal court sixteen years later, this same Florida conviction had a far more harsh effect. Without that 1994 crime, Mr. Clayton's sentencing range would have been 120 to 150 months in prison. But because the 1994 conviction required that he be sentenced as a career offender, his sentencing range became 360 months to life. The judge sentenced Mr. Clayton to 360 months.

A.

In explaining why the Supreme Court's holding in Johnson doesn't apply to the guidelines, the Matchett panel looked to the Seventh Circuit's ruling in United States v. Tichenor , 683 F.3d 358 (7th Cir. 2012)

. Quoting Tichenor , the panel said: “Since the Guidelines are merely advisory, defendants cannot rely on them to communicate the sentence that the district court will impose. Defendants' inability to look to the Guidelines for notice underscores why ... they cannot bring vagueness challenges against the Guidelines.” 802 F.3d at 1194 (quoting Tichenor , 653 F.3d at 365). But this view of the guidelines is at odds with how the Supreme Court views them, and in any event, it is perilous to now deduce this principle from Tichenor . A year after Tichenor was decided, the Supreme Court applied the Ex Post Facto Clause to the Sentencing Guidelines. See Peugh v. United States , –––U.S. ––––, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). Like the vagueness doctrine, the Ex Post Facto Clause imposes a constitutional requirement of “fair notice.” Weaver v. Graham , 450 U.S. 24, 30, 101 S.Ct. 960, 965, 67 L.Ed.2d 17 (1981).

Even though the guidelines are now advisory, Peugh reminded us that they “remain the starting point for every sentencing calculation in the federal system.” 133 S.Ct. at 2083

. In fact, “[18 U.S.C.] § 3553(a) explicitly directs sentencing courts to consider the...