United States v. Cory Devon Wash.

• Decision Date: 15 May 2018
• Docket Number: No. 17-6079,17-6079
• Citation: 890 F.3d 891
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cory Devon WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

890 F.3d 891

UNITED STATES of America, Plaintiff-Appellee,

v.Cory Devon WASHINGTON, Defendant-Appellant.

No. 17-6079

United States Court of Appeals, Tenth Circuit.

May 15, 2018

Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Mark A. Yancey, United States Attorney; Ashley Altshuler, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, BALDOCK, and HOLMES, Circuit Judges.

BALDOCK, Circuit Judge.

In 2011, Defendant Cory Devon Washington pleaded guilty in the Western District of Oklahoma to two firearm-related offenses. The district court sentenced him to fifteen years' imprisonment under the Armed Career Criminal Act (ACCA). After Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), invalidated the ACCA's residual clause, Defendant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Notably, this motion was his second § 2255 motion. The district court dismissed the motion because Defendant did not establish the sentencing court relied on the residual clause for any of his ACCA predicate offenses. Exercising jurisdiction under 28 U.S.C. § 2253(a), we affirm.

I.

In June 2011, pursuant to a plea agreement, Defendant pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and one count of possessing an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5845(f). Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces a minimum of fifteen years' imprisonment if the defendant has three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). At the time of Defendant's sentencing, a violent felony was defined 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" (the elements clause); (2) "is burglary, arson, or extortion, involves use of explosives" (the enumerated offense clause); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause). § 924(e)(2)(B).

Defendant's presentence investigation report (PSR) recommended an enhanced sentence under the ACCA based on three prior felony convictions: (1) a juvenile adjudication for pointing a weapon; (2) assault and battery with a dangerous weapon; and (3) burglary in the second degree. Defendant objected to the PSR's recommended sentence, arguing only that the juvenile adjudication for pointing a weapon did not qualify as a predicate offense under the ACCA. Defendant argued the adjudication arose from a misdemeanor charge, it was not a conviction, and it was ultimately dismissed. At a sentencing hearing in December 2011, the district court rejected all three arguments and held Defendant's juvenile adjudication qualified as an ACCA predicate offense. Pursuant to the ACCA, the district court imposed the mandatory minimum sentence of 180 months' imprisonment. We affirmed on direct appeal.¹ United States v. Washington , 706 F.3d 1215 (10th Cir. 2012). In 2014, Defendant filed a § 2255 motion to vacate, set aside, or correct his sentence, alleging ineffective assistance of counsel. The district court denied this motion, and Defendant did not appeal.

In 2015, the Supreme Court's decision in Johnson struck the ACCA's residual clause as unconstitutionally vague but left the elements clause and enumerated offense clause intact. 135 S.Ct. at 2563. The Supreme Court later held Johnson is retroactive in cases on collateral review, allowing defendants previously sentenced under the ACCA's residual clause to challenge their sentences. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). After the Supreme Court decided Johnson and Welch , Defendant obtained authorization from us to file a second or successive § 2255 motion. In his motion, Defendant argued Johnson rendered his ACCA sentencing enhancement unconstitutional as to his three prior convictions. The district court disagreed and held Defendant did not raise Johnson -based claims but rather raised Mathis -based claims, which were barred.² The court then dismissed this second or successive motion pursuant to § 2244. Defendant filed a motion for a certificate of appealability, which the district court denied. Defendant then filed a timely notice of appeal. We granted a certificate of appealability on two issues: (1) whether Defendant's motion satisfied the requirements of § 2244(b); and if so, (2) whether, on the merits, the district court unconstitutionally enhanced Defendant's sentence under the ACCA.

II.

Defendants who file a second or successive § 2255 motion must pass through two gates before a court may consider the merits of the motion. See 28 U.S.C. § 2255(h) ; United States v. Murphy , 887 F.3d 1064, 1067–68 (10th Cir. 2018) ; see also Case v. Hatch , 731 F.3d 1015, 1026–29 (10th Cir. 2013) (adopting the same gatekeeping process but in the context of second or successive § 2254 motions). At the first gate, a defendant initially must obtain authorization from the court of appeals to file the second or successive § 2255 motion in the district court. Case , 731 F.3d at 1026 ; § 2244(b)(3). To obtain this authorization, a defendant must make a prima facie showing that his motion relies on:

(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.

§ 2255(h).³ The court of appeals must make this determination within thirty days, usually with only the defendant's application (and no response from the government) before it. § 2244(b)(3)(D); Case , 731 F.3d at 1028. In light of these limitations, the court of appeals' grant of authorization is only a "preliminary determination" indicating the claim has "possible merit to warrant a fuller exploration by the district court." Case , 731 F.3d at 1028 (quoting Bennett v. United States , 119 F.3d 468, 469 (7th Cir. 1997) ).

Only after a defendant has made this prima facie showing and obtained authorization may the defendant file a second or successive § 2255 motion. Murphy , 887 F.3d at 1067–68 ; Case , 731 F.3d at 1029. Then, to pass through the second gate, a defendant must "back up the prima facie showing ... with actual evidence to show he can meet this standard." Case , 731 F.3d at 1027. If the defendant cannot make this showing, the district court must dismiss the motion without reaching the merits of the defendant's claim. § 2244(b)(4); Case , 731 F.3d at 1029. In this case, Defendant passed through the first gate. But at the second gate, the district court found Defendant did not show his motion relied on a new rule of constitutional law and dismissed without reaching the merits. We review the district court's determination de novo . Murphy , 887 F.3d at 1068.

As explained above, Johnson clearly announced a new rule of constitutional law, made retroactive on collateral review. See Welch , 136 S.Ct. at 1268. The only question is whether Defendant's claim relies on Johnson —that is, whether the district court enhanced Defendant's sentence by relying on the ACCA's residual clause to do so. Vital to answering this question is the burden of proof and the burden of persuasion. Of course, before a defendant can be convicted of a crime, the government bears the burden at trial of producing "proof of a criminal charge beyond a reasonable doubt." In re Winship , 397 U.S. 358, 361–62, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Then, the defendant may often seek direct review of his conviction. See Fed. R. Crim. P. 32(j)(1). "When the process of direct review ... comes to an end, a presumption of finality and legality attaches to the conviction and sentence." Brecht v. Abrahamson , 507 U.S. 619, 633, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Barefoot v. Estelle , 463 U.S. 880, 887, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) ); see also Case , 731 F.3d at 1027 (noting one of AEDPA's purposes is the interest in finality); Williams v. United States , 401 U.S. 667, 690–91, 91 S.Ct. 1171, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring) (explaining the importance of finality in the criminal context). In light of this presumption of finality and legality, if the defendant pursues collateral relief, the burden is on the defendant to establish his claim by a preponderance of the evidence. See Miles v. Dorsey , 61 F.3d 1459, 1472 (10th Cir. 1995) ; Beeler v. Crouse , 332 F.2d 783, 783 (10th Cir. 1964) (per curiam).

Defendant asks us to lower his burden on collateral review for equitable reasons, arguing he only needed to show "the district court could have relied on the residual clause." Op. Br. at 10. Defendant notes that in many ACCA cases, including his own, the record is often silent as to which of the three ACCA clauses the district court used to sentence a defendant. Accordingly, Defendant argues we should follow the rule first articulated in Stromberg v. California , 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Stromberg held that where a general jury verdict rests on one of three possible grounds and one of those grounds is unconstitutional, the conviction must be set aside. 283 U.S. at 369–70, 51 S.Ct. 532. We decline to extend the Stromberg rule, which has historically only applied to general jury verdicts, to the case before us. See Zant v. Stephens , 462 U.S. 862, 881, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) (stating the cases...