Senter v. United States, No. 18-11627

• Decision Date: 13 November 2020
• Docket Number: No. 18-11627
• Parties: Clifford SENTER, Petitioner - Appellant, v. UNITED STATES of America, Respondent - Appellee
• Court: U.S. Court of Appeals — Eleventh Circuit

980 F.3d 777

Clifford SENTER, Petitioner - Appellant,

v.UNITED STATES of America, Respondent - Appellee,

No. 18-11627

United States Court of Appeals, Eleventh Circuit.

November 13, 2020

Deanna Lee Oswald, Alexandria Darby, Federal Public Defender-NAL, Huntsville, AL, Kevin L. Butle, 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 petition for a writ of habeas corpus. 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 failing to address Senter's claim 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 has no state law elements. After careful review and with the benefit of oral argument, we vacate and remand.

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 counted 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 the conviction was for "burglary, arson, ... extortion [or] involves 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, the district court 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.

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 petition 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 sentence enhancement because attempted robbery is not a crime under Alabama law and thus has no elements.¹ 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. He also argued in the alternative that, "even if the Court can attribute elements to a non-existent crime, an attempt does not require as an element the use, attempted use, or threatened use of physical force against a person."

On February 5, 2018, the district court issued a Memorandum of Opinion denying Senter's petition. The district court characterized Senter's Supplemental Brief as trying to "argue[ ] that ... because attempted robbery has not been a criminal offense in Alabama since 1979,........ his attempted robbery conviction is invalid as a matter of Alabama state law." The district court rejected this argument as a collateral attack on the validity of his state court conviction. The district court also dismissed Senter's alternative argument, reasoning that "an attempt to commit robbery necessarily includes, at a minimum, an attempt to use force," and "an attempt to use force is sufficient to bring a crime within the elements clause portion of the violent-felony definition." The district court then dismissed Senter's § 2255 petition with prejudice.

This appeal followed.²

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 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." Clisby , 960 F.2d at 936. We have also applied the principle announced in Clisby to claims raised in a § 2255 motion. See Rhode v. United States , 583 F.3d 1289, 1291 (11th Cir. 2009) (per curiam) ("[T]he district court was required to comply with Clisby and resolve all claims for relief raised in [petitioner's] § 2255 motion."); see also Gay v. United States , 816 F.2d 614, 616 n.1 (11th Cir. 1987) ("[T]he principles developed in habeas cases also apply to § 2255 motions."). Under this analysis, a claim for relief "is any allegation of a constitutional violation." Clisby , 960 F.2d at 936. If a district court fails to resolve all of a petitioner's claims, we "will vacate the district court's judgment without prejudice and remand the case for consideration of all remaining claims." Id. at 938. As we have previously explained, "[p]olicy considerations clearly favor the contemporaneous consideration of allegations of constitutional violations grounded in the same factual basis: a one-proceeding treatment of a petitioner's case enables a more thorough review of his claims, thus enhancing the quality of the judicial product." Id. at 936 (internal quotations omitted).

The district court interpreted Senter's argument concerning his 1988 attempted robbery conviction as a collateral attack against his state court conviction and rejected the claim on those grounds. The district court was correct that, as a general matter, a defendant cannot attack his previous state convictions through a § 2255 petition. See Daniels v. United States , 532 U.S. 374, 376, 121 S.Ct. 1578, 149 L.Ed.2d 590 (2001) (As a general rule, a petitioner "may not ... challenge his federal sentence through a motion under 28 U.S.C. § 2255 ... on the ground that his prior convictions were unconstitutionally obtained."); United States v. Jackson , 57 F.3d 1012, 1018 (11th Cir. 1995) ("Generally, we do not allow a defendant to collaterally attack in the sentence proceeding convictions being used to enhance his sentence."). However, here, the district court mischaracterized Senter's argument. In his Supplemental Brief supporting his § 2255 motion, Senter did not argue that, under state law, his attempted robbery conviction is itself constitutionally infirm because Alabama law does not recognize this offense. Instead, he argued that, under federal law, his attempted robbery conviction cannot meet the requirements of a violent felony conviction under either of the remaining ACCA definitional clauses, because attempted robbery does not exist under Alabama law and, therefore, does not have any elements. Thus, the district court violated Clisby by misconstruing Senter's argument and not resolving his actual claim for relief.

Despite the district court's Memorandum of Opinion explicitly rejecting Senter's request for relief as a collateral attack, the Appellee argues that the district court resolved the request "by concluding that the elements clause covered his attempted-robbery offense." The district court did state that "Alabama robbery includes force against the person of another as an element. Thus, an attempt to commit robbery necessarily includes, at a minimum, an attempt to use force." However, the district court was clear that this was in response to Senter's alternative argument that "attempted first-degree robbery does not qualify as a violent felony under the ACCA because ‘an attempt does not require as an element the use, attempted use, or threatened use of physical force against a person.’ " The district court never in the...