In re Williams

• Decision Date: 24 June 2016
• Docket Number: No. 16-13013-J,16-13232-J,16-13013-J
• Parties: In re: Dennis D. Williams, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

826 F.3d 1351

In re: Dennis D. Williams, Petitioner.

No. 16-13013-J

16-13232-J

United States Court of Appeals, Eleventh Circuit.

June 24, 2016

Danli Song, Rosemary Cakmis, Donna Lee Elm, Conrad Benjamin Kahn, Federal Public Defender's Office, Orlando, FL, for Petitioner.

Arthur Lee Bentley, III, David Paul Rhodes, U.S. Attorney's Office, Tampa, FL, for Successive Habeas Respondent.

Dennis Williams, Coleman, FL, Pro Se.

Before HULL, MARCUS and JULIE CARNES, Circuit Judges.

BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Dennis D. Williams has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; 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). “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); see also Jordan v. Sec'y, Dep't of Corr. , 485 F.3d 1351, 1357–58 (11th Cir. 2007) (explaining that this Court's determination that an applicant has made a prima facie showing that the statutory criteria have been met is simply a threshold determination).

Williams has filed two applications—one through counsel and one pro se —indicating that he wishes to raise one claim in a second or successive § 2255 motion. Because the applications raise substantially the same claim, we consider them together. In the applications, Williams asserts that his claim relies upon a new rule of constitutional law, citing Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), in which the Supreme Court held that the residual clause of the violent felony definition in the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague and that imposing an increased sentence under that provision, therefore, violates due process. He also cites Welch v. United States , 578 U.S. ––––, 136 S.Ct. 1257, 194 L. Ed. 2d 387 (2016), in which the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Specifically, Williams argues that the district court enhanced his sentence pursuant to the residual clause of the ACCA and, as a result, violated his due process rights. He also argues that his sentence was enhanced under the career-offender guideline, and that he was subject to a mandatory life sentence under 21 U.S.C. §§ 841(b)(1)(A) and 851 and 18 U.S.C. § 3559(c), and that the ruling in Johnson should be extended to render those enhancements unconstitutionally vague.

The ACCA defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is commonly called the “residual clause.” United States v. Owens , 672 F.3d 966, 968 (11th Cir. 2012).

Section 4B1.1 of the Sentencing Guidelines provides that a defendant is classified as a career offender if (1) he was at least 18 years old at the time of the offense of conviction; (2) the offense of conviction was either a crime of violence or a controlled substance offense; and (3) he had at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). The guidelines define “crime of violence” as any offense under federal or state law that is punishable by imprisonment for more than one year and:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a).

Under the federal “three-strikes” statute, 18 U.S.C. § 3559(c), a person who is convicted of a “serious violent felony” shall receive a mandatory sentence of life imprisonment if he has previously been convicted of two or more “serious violent felonies,” or one or more “serious violent felonies” and one or more serious drug offenses. 18 U.S.C. § 3559(c) ; see United States v. Fulford , 267 F.3d 1241, 1247 (11th Cir. 2001). For purposes of § 3559(c), “serious violent felony” includes various enumerated crimes as well as

any other offense punishable by a maximum term of imprisonment of 10 years or more that has an element the use, attempted use, or threatened use of physical force against the person of another or that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.

18 U.S.C. § 3559(c)(2)(F).

According to 21 U.S.C. § 841(b)(1)(A)(ii), a person who manufactures, distributes, dispenses, or possesses with intent to distribute 5 kilograms or more of a mixture or substance containing cocaine shall be sentenced to a term of imprisonment of 10 years to life. 21 U.S.C. § 841(b)(1)(A)(ii) ; see also id. § 841(a)(1). Such a person shall be subject to a mandatory life sentence if he commits the offense “after two or more prior convictions for a felony drug offense have become final,” and the government files an information setting forth the prior convictions pursuant to § 851. 21 U.S.C. §§ 841(b)(1)(A), 851(a).

On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson , 576 U.S. at ––––, 135 S.Ct. at 2557–58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes of the ACCA's definition of a violent felony. Id. at ––––, 135 S.Ct. at 2563.

Thereafter, in September 2015, we issued a decision in United States v. Matchett , 802 F.3d 1185, 1193–96 (11th Cir. 2015), holding that the vagueness doctrine, upon which the Supreme Court invalidated the ACCA's residual clause in Johnson, did not similarly apply to advisory Sentencing Guidelines. We explained that the vagueness doctrine applies both to statutes that define elements of crimes and to statutes fixing sentences, but noted that “the advisory guidelines do neither.” Id. at 1194. We then emphasized that, because the pre-Guidelines sentencing scheme that gave plenary discretion to sentencing judges did not violate the notice requirement of the Due Process Clause, advisory guidelines that merely “inform a sentencing judge's discretion also cannot violate the notice requirement.” Id. at 1194–95. Finally, we explicitly rejected Matchett's policy-based argument that allowing the identically worded residual clause in § 4B1.2(a) to stand would upend the sentencing process by forcing sentencing courts to apply a clause that Johnson determined to lack precise meaning. Id. at 1195. We explained that

Although Johnson abrogated the previous decisions of the Supreme Court interpreting the residual clause of the Armed Career Criminal Act, sentencing courts interpreting the residual clause of the guidelines must still adhere to the reasoning of cases interpreting the nearly identical language in the Act. [Matchett's] policy concern is properly addressed to the United States Sentencing Commission....

Id. at 1195–96.

In its April 18, 2016, Welch opinion, the Supreme Court explained that, by striking down the ACCA's residual clause as void for vagueness, Johnson changed the ACCA's substantive reach and altered “the range of conduct or the class of persons that the [Act] punishes.” Id. at ––––, 136 S.Ct. at 1265 (brackets in original) (quotation omitted). Applying the retroactivity framework set forth in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, the Court further stated that Johnson was not a procedural decision because it “had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the [ACCA].” Id. Accordingly, the Court ruled that “Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on collateral review.” Id.

Thereafter, in In re Griffin , No. 16-12012, manuscript op. at 7-10 (11th Cir. May 25, 2016), we held that an applicant seeking leave to raise a Johnson -based challenge to his career offender enhancement, which was imposed when the Sentencing Guidelines were mandatory, did not make a prima facie showing that his claim satisfied the criteria of § 2255(h)(2) because he was not sentenced under the ACCA or beyond the statutory maximum for his crime. In doing so, we concluded that “logic and principles established in Matchett also govern ... when the Guidelines were mandatory.” Id. at 7. We reasoned that the Guidelines, whether advisory or mandatory, cannot be unconstitutionally vague because they do not establish the illegality of any conduct and are designed to limit and...