Senter v. United States, No. 18-11627

• Citation: 983 F.3d 1289
• Decision Date: 30 December 2020
• Docket Number: No. 18-11627
• Parties: Clifford SENTER, Petitioner - Appellant, v. UNITED STATES of America, Respondent – Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

983 F.3d 1289

Clifford SENTER, Petitioner - Appellant,

v.UNITED STATES of America, Respondent – Appellee.

No. 18-11627

United States Court of Appeals, Eleventh Circuit.

December 30, 2020

Deanna Lee Oswald, Alexandria Darby, Federal Public Defender - NAL, HUNTSVILLE, AL, Kevin L. Butler, Allison Case, Federal Public Defender, BIRMINGHAM, AL, for Petitioner - Appellant.

Michael B. Billingsley, Praveen S. Krishna, U.S. Attorney Service - Northern District of Alabama, U.S. Attorney's Office, BIRMINGHAM, AL, for Respondent - Appellee.

Before NEWSOM and BRANCH, Circuit Judges, and BAKER,^* District Judge.

BAKER, District Judge:

Clifford Senter, a federal prisoner, appeals from the district court's denial of his 28 U.S.C. § 2255 motion to vacate sentence. Before the district court, Senter argued, in relevant part, that he no longer qualified as an armed career criminal in light of Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), because his prior 1988 Alabama conviction for attempted first-degree robbery was not a crime in the state and as such had no state law elements. The district court rejected this portion of Senter's purported Johnson claim as an improper collateral attack on his state conviction. We granted a certificate of appealability to determine whether the district court violated Clisby v. Jones , 960 F.2d 925 (11th Cir. 1992) (en banc), by misapprehending and thereby failing to address his argument that he no longer qualified as an armed career criminal post- Johnson because his prior Alabama attempted first-degree robbery conviction contained no state law elements. However, a close review of the district court's opinion reveals that it correctly identified and sufficiently addressed Senter's claim. Therefore, after careful review and with the benefit of oral argument, we will affirm.¹

I

In 1999, a jury in the Northern District of Alabama found Senter guilty of armed bank robbery in violation of 18 U.S.C. § 2113(a), (d), and 2 (Count I); using and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count II); and possessing a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1) (Count III). Normally, a violation of 18 U.S.C. § 922(g)(1) carries a maximum penalty of ten years in prison. 18 U.S.C. § 924(a)(2). However, Senter's Presentence Investigation Report ("PSI") provided that under the Armed Career Criminal Act ("ACCA") Senter qualified for an enhanced sentence because he had three prior violent felony convictions. The PSI based its finding on Senter's three prior Alabama convictions: (1) a 1988 second-degree robbery; (2) a 1988 attempted first-degree robbery; and (3) a 1992 third-degree robbery.

At the time of Senter's sentencing, a conviction could qualify as a violent felony conviction under three different ACCA definitional clauses. 18 U.S.C. § 924(e)(2)(B)(i)–(ii). A conviction could qualify as a violent felony under the ACCA's so-called "elements clause" if it had "as an element the use, attempted use, or threatened use of physical force against the person of another[,]" or it could qualify under the "enumerated clause" if it was for "burglary, arson, ... extortion [or] involve[d] use of explosives." 18 U.S.C. § 924(e)(2)(B)(i)–(ii) ; In re Hires , 825 F.3d 1297, 1298–99 (11th Cir. 2016). Finally, under the statute's "residual clause," a violent felony conviction also included "conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).

During the sentencing hearing, Senter made no objections to the PSI. The district court subsequently adopted the PSI and found that Senter was an armed career criminal. However, the district court did not specify whether the prior convictions qualified as violent felonies under the residual clause or instead under one of the ACCA's other definitional clauses. The district court applied the ACCA enhanced sentencing requirement and sentenced Senter to a term of three hundred months for Count I and three hundred and sixty months for Count III, to be served concurrently. Finally, for Count II, Senter received an additional sixty months to be served consecutively, for a total sentence of four hundred and twenty months. This Court affirmed Senter's conviction and sentence on direct appeal. United States v. Senter , 232 F.3d 214 (11th Cir. 2000) (mem.).

In 2015, the United States Supreme Court decided Johnson v. United States , holding "that imposing an increased sentence under the [ACCA's residual clause] violates the Constitution's guarantee of due process." Johnson , 576 U.S. at 606, 135 S.Ct. 2551. In June 2016, Senter, acting pro se , filed a § 2255 motion in the Northern District of Alabama, arguing that his "[e]nhanced sentence [was] void in light of Johnson ." After the district court appointed him counsel, Senter filed a Supplemental Brief. In it, he argued, among other things, that without the ACCA's residual clause his 1988 Alabama attempted robbery conviction did not count as a violent felony for purposes of the ACCA because attempted robbery is not a crime under Alabama law and thus has no elements.² Senter asserted that, without any elements, his attempted robbery conviction did not meet either of the remaining definitions of a violent felony because it did "not have as an element the use, attempted use, or threatened use of physical force against a person" or "the elements of burglary, arson, extortion [or] an element involving the use of explosives" as required by the ACCA.

On February 5, 2018, the district court issued a Memorandum of Opinion denying Senter's § 2255 motion. The district court characterized Senter's Supplemental Brief as "argu[ing] that his attempted first-degree robbery conviction is not a violent crime because attempted robbery has not been a criminal offense in Alabama since 1979" or, "[i]n other words, ... argu[ing] that his attempted robbery conviction is invalid as a matter of Alabama state law." The district court rejected this argument as an impermissible collateral attack on the validity of his state court conviction. The district court then dismissed Senter's § 2255 motion with prejudice.

This appeal followed.³

II

Senter argues that the district court violated Clisby v. Jones by failing to address his claim that his Alabama attempted robbery conviction was not a violent felony conviction for purposes of the ACCA post- Johnson because the crime does not exist under Alabama law and thus lacks any elements. Clisby requires a federal district court "to resolve all claims for relief raised in a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988), regardless whether habeas relief is granted or denied."⁴ Clisby , 960 F.2d at 936.

The district court classified Senter's claim as a collateral attack against his state sentence and dismissed it. Senter asserts that the district court "misconstrued" his claim, and thereby failed to address it in violation of Clisby .

A

In Custis v. United States , the Supreme Court examined "whether a defendant in a federal sentencing proceeding may collaterally attack the validity of previous state convictions that are used to enhance his sentence under the ACCA." Custis v. United States , 511 U.S. 485, 487, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). The Supreme Court ultimately held that the ACCA "does not permit [a defendant] to use the federal sentencing forum to gain review of his state convictions" unless the conviction involved a violation of the defendant's right to counsel. Id. at 497, 114 S.Ct. 1732. Instead, a defendant must challenge his state sentence either in state court or through federal habeas review via 28 U.S.C. § 2254. Id. If successful, the defendant could "then apply for reopening of any federal sentence enhanced by the state sentences." Id.

Several years later, in Daniels v. United States , the Supreme Court considered whether to extend Custis to federal movants who, through § 2255 motions, challenge their federal sentence by arguing that their prior state convictions—which had been used for federal sentence enhancement—were unconstitutionally obtained. Daniels v. United States , 532 U.S. 374, 376, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001). Applying reasoning similar to that used in Custis , the Supreme Court held that a movant could not collaterally attack a state court conviction in a § 2255 motion. Id. at 384, 121 S.Ct. 1578. Writing for the Court, Justice O'Connor noted that states have an interest in the finality of their judgments even in the context of their use for federal sentencing enhancements, because "if a state conviction were determined to be sufficiently unreliable that it could not be used to enhance a federal sentence, the State's ability to use that judgment subsequently for its own purposes would be, at the very least, greatly undermined." Id. at 379–80, 121 S.Ct. 1578. This broad interpretation of what constitutes a collateral attack aligned with the Supreme Court's prior statements regarding the reasoning behind the doctrine. See Parke v. Raley , 506 U.S. 20, 30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) ("Respondent, by definition, collaterally attacked his previous convictions; he sought to deprive them of their normal force and effect in a proceeding that had an independent purpose other than to overturn the prior judgments.") (citing Black's Law Dictionary 261 (6th ed. 1990) and Lewis v. United States , 445 U.S. 55, 58, 65, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) ).

Our own precedent also supports a broad interpretation of the parameters of a collateral attack. In United States v. Phillips , the district court determined during sentencing that the defendant qualified as a career offender under U.S.S.G. § 4B1.1. United States v. Phillips , 120 F.3d 227, 229 (11th Cir. 1997). However, the district court departed downward from the sentencing guidelines and sentenced the defendant as if he were not a career offender....