Mays v. United States

• Decision Date: 29 March 2016
• Docket Number: No. 14–13477.,14–13477.
• Citation: 817 F.3d 728
• Parties: Courtney MAYS, Petitioner–Appellant, v. UNITED STATES of America, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

817 F.3d 728

Courtney MAYS, Petitioner–Appellant,

v.UNITED STATES of America, Respondent–Appellee.

No. 14–13477.

United States Court of Appeals, Eleventh Circuit.

March 29, 2016.

Kevin L. Butler, Allison Case, Federal Public Defender, Birmingham, AL, Deanna Lee Oswald, Federal Public Defender–NAL, Huntsville, AL, for Petitioner–Appellant.

Ramona Albin, Enid Dean Athanas, Michael B. Billingsley, Joyce White Vance, U.S. Attorney's Office, Birmingham, AL, for Respondent–Appellee.

Before WILSON, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:

Courtney Mays appeals the district court's denial of his first and only 28 U.S.C. § 2255 motion to vacate his sentence. Mays was convicted of two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was then sentenced pursuant to 18 U.S.C. § 924(e)(1) of the Armed Career Criminal Act (ACCA). Relying on Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Johnson v. United States, 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Mays asserts his sentence under § 924(e)(1) is illegal. Specifically, he argues that, in light of Descamps and Johnson, he does not have the number of qualifying prior convictions required to trigger a § 924(e)(1) sentence and, therefore, his sentence under the section is unlawful. We agree and find that Mays's sentence is illegal. Although Descamps and Johnson were decided after Mays's conviction and sentence became final, we hold that both cases apply retroactively in the first post-conviction context. Accordingly, we reverse the district court's denial of Mays's motion and remand for resentencing.

I. SENTENCING UNDER THE ACCA

To provide the legal context for Mays's appeal, we begin with a brief discussion of Descamps, Johnson , and the relevant portions of § 924(e). Under § 924(e)(1), "a person who violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony or a serious drug offense is subject to additional fines and a fifteen-year minimum sentence (and has an enhanced guidelines sentence under U.S.S.G. § 4B1.4 )."¹ United States v. Petite, 703 F.3d 1290, 1293 (11th Cir.2013) (internal quotation marks omitted); see also 18 U.S.C. § 924(e)(1). The ACCA defines a violent felony as "any crime punishable by imprisonment for a term exceeding one year" that: (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another"; (2) "is burglary, arson, or extortion [or] involves use of explosives"; or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). These three "clauses" are known as the "elements clause," the "enumerated clause," and the "residual clause," respectively.

The Court in Descamps addressed our approach to determining whether a crime constitutes a violent felony under the enumerated clause. The enumerated clause only includes prior convictions for "generic" versions of the offenses it lists. See Descamps, 133 S.Ct. at 2281. There are two approaches for determining whether an offense is generic: the "categorical approach" and the "modified categorical approach." See id. Under the categorical approach, we "compare the elements of the statute forming the basis of the defendant's conviction with the elements of the generic crime." Id. (internal quotation marks omitted). "The prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense." Id. In contrast, under the modified categorical approach, we may look beyond the statutory elements of the prior conviction and consider a "limited class of documents, such as indictments and jury instructions," to determine whether the conviction was for a generic offense. See id. In Descamps, the Supreme Court held that this analysis can only be performed if the statute in question is "divisible," meaning that it "sets out one or more elements of the offense in the alternative." See id. at 2281–82.

In Johnson, the Supreme Court considered a constitutional challenge to the residual cause and determined that the clause is unconstitutionally vague. Johnson, 135 S.Ct. at 2557. As such, a defendant cannot be sentenced pursuant to § 924(e)(1) unless he has at least three prior convictions that each meet the criteria of either the elements clause or the enumerated clause. See id. at 2563.

II. BACKGROUND

Mays was sentenced to two concurrent terms of 15 years' imprisonment pursuant to § 924(e)(1). The sentencing court imposed a § 924(e)(1) sentence based on two prior convictions for possession of marijuana for other than personal use under Alabama Code § 13A–12–213(a)(1) and one prior conviction for third degree burglary under Alabama Code § 13A–7–7. The marijuana convictions were found to be serious drug offenses and the burglary conviction was determined to be a violent felony.

In July 2012, Mays filed a pro se § 2255 motion for habeas relief, arguing that he received ineffective assistance of counsel during his direct appeal. Soon thereafter, the Supreme Court decided Descamps. In August 2013, Mays filed a notice with the district court alleging he was wrongfully sentenced pursuant to § 924(e)(1). Specifically, he asserted that, under Descamps, his burglary conviction was not a violent felony. He also generally claimed that his sentence is illegal because he does not have at least three prior qualifying convictions under § 924(e)(1).² The Government responded that Mays was procedurally barred from making such an argument by § 2255's period of limitations. See 28 U.S.C. § 2255(f)(3). The Government also argued that Mays's burglary conviction is a violent felony under the residual clause and, therefore, Descamps —which had no effect on the residual clause—did not render Mays's sentence illegal.

The district court accepted the Government's period of limitations defense and dismissed Mays's challenge to his sentence as time-barred. The court also denied Mays's ineffective assistance of counsel claim. This court granted a certificate of appealability (COA) on three issues: (1) whether the district court erred by denying Mays's ineffective assistance of counsel claim; (2) whether the district court erred in dismissing Mays's claim that his sentence is illegal under Descamps ; and (3) whether the district court abused its discretion by denying Mays's motion to reconsider.

Mays was appointed counsel prior to filing his brief on appeal. A few months after Mays submitted his brief, the Supreme Court decided Johnson, which prompted him to file a notice of supplemental authority. In the notice, Mays stated, inter alia, that Johnson disposed of the Government's argument that his burglary conviction is a violent felony under the residual clause. Following this notice, the Government and Mays submitted a joint motion for resentencing. In the motion, the Government agreed to withdraw its period of limitations defense against Mays's challenge to his sentence, and Mays agreed to dismiss his ineffective assistance of counsel claim. The Government also conceded that, in light of Johnson, it believes Mays's sentence under § 924(e)(1) is unlawful.

After receiving Mays's notice of supplemental authority and the parties' joint motion for resentencing, we requested supplemental briefing on several issues related to Johnson 's application to this case. In its responding supplemental briefing, the Government stated that it is waiving non-retroactivity as a defense to Mays's Descamps and Johnson arguments. The Government also reiterated its withdrawal of its period of limitations defense to Mays's challenge to his sentence.

III. DISCUSSION

The dispositive issue before us is whether Mays's § 924(e)(1) sentence is unlawful. This issue turns on two questions of law: whether (1) Descamps and (2) Johnson apply retroactively to Mays despite being decided after his conviction and sentence became final. If both Descamps and Johnson apply retroactively to Mays—a first time habeas petitioner—then his burglary conviction is not a qualifying conviction under § 924(e)(1), and his sentence is illegal because he does not have at least three qualifying convictions. Accordingly, in considering the legality of Mays's sentence, we focus our analysis on resolving these Descamps and Johnson "retroactivity" questions. However, we first briefly discuss a threshold procedural issue: the scope of the COA.

A. Scope of the COA

All three issues included in the COA are now moot. Mays has withdrawn his ineffective assistance of counsel claim, thereby mooting the first COA issue. Furthermore, the "time-barred" issue that the district court relied on in denying Mays's challenge to his sentence is moot because the Government has waived its period of limitations defense. See Bryant v. Warden, FCC Coleman–Medium, 738 F.3d 1253, 1261 (11th Cir.2013) ("[T]he procedural-default rule is not jurisdictional [in the post-conviction context], but is an affirmative defense that is subject to waiver by the government."). Therefore, the second and third COA issues are also moot. Nonetheless, as noted above, the core issue raised by Mays before the district court—whether his sentence is legal—remains. Given this issue is not included in the COA, we must consider whether the circumstances warrant expanding the COA to include it.

We find that expansion of the COA is clearly warranted. "On exceptional occasions," we may expand a COA sua sponte to include issues that "reasonable jurists would find ... debatable." See Dell v. United States, 710 F.3d 1267, 1272–73 (11th Cir.2013) ; Thomas v. Crosby, 371 F.3d 782, 796 (11th Cir.2004) ("[O]ur cases establish the power of our court to add issues to a COA sua sponte."); Hodges v. Att'y Gen., 506 F.3d 1337, 1341–42 (11th Cir.2007). "Exceptional occasions" include cases where we request supplemental briefing on issues not included in the COA. See Dell, 710 F.3d...