United States v. Hanner
| Decision Date | 22 April 2022 |
| Docket Number | 20-30420 |
| Citation | 32 F.4th 430 |
| Parties | UNITED STATES of America, Plaintiff—Appellee, v. Sheldon W. HANNER, Defendant—Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Carol Mignonne Griffing, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA, for Plaintiff—Appellee.
Dustin Charles Talbot, Federal Public Defender's Office, Middle & Western Districts of Louisiana, Lafayette, LA, Roberta Mae Fontenot, Esq., Assistant Federal Public Defender, Federal Public Defender's Office Middle & Western Districts of Louisiana, Baton Rouge, LA, for Defendant—Appellant.
Before Southwick, Haynes, and Higginson, Circuit Judges.
Sheldon Hanner, federal prisoner # 13875-035, appeals the district court's order denying his second 28 U.S.C. § 2255 motion. In 2008, Hanner, who had previously been convicted of aggravated burglary, manslaughter, and second degree battery, was convicted of being a felon in possession of a firearm and sentenced to 300 months imprisonment under the Armed Career Criminal Act (ACCA), which mandates a 15-year minimum prison sentence for certain persons with three previous "violent felony" convictions. See 18 U.S.C. § 924(e). After Hanner's sentence was upheld both on direct appeal and in an initial § 2255 proceeding, Hanner moved this court for authorization to file a second § 2255 motion, arguing that given the Supreme Court's decision in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), his aggravated burglary conviction does not qualify as a "violent felony" for purposes of ACCA. We granted the motion, expressly mentioning only Hanner's aggravated burglary and second degree battery convictions in our order. However, after the proceeding was transferred to the district court, Hanner argued for the first time that Johnson also applies to his manslaughter conviction, and his appeal raises this issue exclusively. Because Hanner neither asked for nor received authorization to raise this issue in his second § 2255 motion, we VACATE the district court's order in part and DISMISS Hanner's motion to the extent that it raises this issue. The district court's order is otherwise AFFIRMED.
In 2008, a jury convicted Sheldon W. Hanner of being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1). Pursuant to the Armed Career Criminal Act, which mandates a 15-year minimum sentence for § 922(g) defendants who have, inter alia, three previous "violent felony" convictions, see 18 U.S.C. § 924(e), the presentence report (PSR) assessed Hanner a total offense level of 34 and a statutory sentencing range of 15 years to life imprisonment. The PSR cited a 1978 Louisiana aggravated burglary conviction, a 1984 Louisiana manslaughter conviction, and 1995 Louisiana second degree battery conviction as predicates for the ACCA enhancement.
Hanner objected to the PSR's use of his manslaughter conviction as an ACCA predicate. The sentencing court overruled his objection, though without specifying which of § 924(e)(2)(B)'s three clauses it was relying on to conclude that Hanner's manslaughter conviction qualifies as a "violent felony" for purposes of the statute.1 Hanner was then sentenced to 300 months imprisonment and five years of supervised release.
We affirmed Hanner's conviction on direct appeal. United States v. Hanner , 354 F. App'x 7, 9 (5th Cir. 2009). Hanner did not challenge his sentence in that appeal. See id. at 8-9. However, he subsequently filed a 28 U.S.C. § 2255 motion arguing that his appellate counsel rendered ineffective assistance for failing to pursue the claim that his conviction for manslaughter was not a "violent felony." The district court denied the motion, and we affirmed, concluding that Hanner's manslaughter conviction qualifies as a "violent felony" under § 924(e)(2)(B)'s "elements clause" and therefore that Hanner's appellate counsel did not render ineffective assistance. United States v. Hanner , 549 F. App'x 289, 291-93 (5th Cir. 2013).
After the denial of Hanner's initial § 2255 motion, the Supreme Court held in Johnson v. United States that § 924(e)(2)(B)'s "residual clause" is unconstitutionally vague. 576 U.S. 591, 593-97, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (quoting 18 U.S.C. § 924(e)(2)(B)(ii) ). Hanner subsequently moved this court for authorization to file a successive § 2255 motion,2 arguing that, in light of Johnson , his prior conviction for aggravated burglary no longer qualifies as an ACCA predicate. We issued an unpublished order tentatively granting the motion, explaining as follows:
In this case, an ACCA enhancement was applied, in part, based on Hanner's Louisiana convictions for aggravated burglary and second degree battery. We cannot determine from the available record whether the district court's enhancement of Hanner's sentence under § 924(e) implicates the ACCA's residual clause. Therefore, Hanner has made a sufficient showing of possible merit to warrant a fuller exploration by the district court. Accordingly, IT IS ORDERED that the motion for authorization is GRANTED. Our grant of authorization is tentative in that the district court must dismiss the § 2255 motion without reaching the merits if it determines that Hanner has failed to make the showing required to file such a motion.
In re Hanner , No. 16-30589 (5th Cir. July 15, 2016) (internal quotation marks and citations omitted). We then directed the Clerk to transfer the motion and related pleadings to the district court. Id.
In the district court, Hanner argued that all three of his prior convictions—his manslaughter conviction as well as his aggravated burglary and second degree battery convictions—do not qualify as ACCA predicates in light of Johnson. The district court initially concluded that Hanner had made the requisite showing to reach the merits of his § 2255 motion. However, after the Government filed a motion to reconsider, the court vacated its earlier order and issued a new order denying Hanner's motion. The district court explained that However, because the Fifth Circuit had "determined that the manslaughter conviction was indeed a crime of violence" on Hanner's initial § 2255 appeal, the district court concluded that "the issue of whether the manslaughter charge qualified [as a ‘violent felony’] has been foreclosed" and that "any inquiry into whether [the sentencing] court thought, or not, about whether this offense was under the ‘residual clause’ is moot." Alternatively, the district court determined that even if it the issue were not foreclosed, "Hanner has not met the burden of proof necessary to allow for any change in the sentence previously imposed," reasoning that "if it is unclear from the record whether [the sentencing court] relied on the residual clause, Hanner—who bears the burden of proof—loses."
Hanner filed a notice of appeal and moved for a certificate of appealability (COA).3 The district court granted Hanner a COA on the following two issues:
Then, after the parties had filed their initial briefs in this court, we requested that they file supplemental briefs addressing whether the district court lacked jurisdiction over Hanner's claim regarding his manslaughter conviction, given that the order granting Hanner permission to file a successive § 2255 motion expressly mentioned only Hanner's aggravated burglary and second-degree battery convictions.
On appeal, Hanner argues that the sentencing court likely relied on § 924(e)(2)(B)'s residual clause when determining that his 1984 manslaughter conviction qualifies as a "violent felony" for purposes of ACCA, in violation of Johnson , and that the district court erred by considering factual and legal developments that had occurred after the original sentencing hearing when denying his § 2255 motion. The district court concluded that this issue of whether Hanner was sentenced under the residual clause was foreclosed by our decision in Hanner's initial § 2255 appeal, see Hanner , 549 F. App'x at 291-93 (), and, alternatively, that Hanner had not met his burden of proof on this issue.
As a threshold matter, we must determine whether the district court had jurisdiction to consider the arguments that Hanner raised regarding his manslaughter conviction. "We must always be sure of our appellate jurisdiction and, if there is doubt, we must address it, sua sponte if necessary." Castaneda v. Falcon , 166 F.3d 799, 801 (5th Cir. 1999). "If the district court lacked jurisdiction, our jurisdiction extends not to the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit." United States v. Key , 205 F.3d 773, 774 (5th Cir. 2000) (cleaned up).
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