Williams v. United States, 061119 FED6, 17-3211

Docket Nº:17-3211
Opinion Judge:KAREN NELSON MOORE, CIRCUIT JUDGE.
Party Name:Brian D. Williams, Petitioner-Appellant, v. United States of America, Respondent-Appellee.
Judge Panel:Before: MERRITT, MOORE, and ROGERS, Circuit Judges. MERRITT, Circuit Judge, concurring.
Case Date:June 11, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Brian D. Williams, Petitioner-Appellant,

v.

United States of America, Respondent-Appellee.

No. 17-3211

United States Court of Appeals, Sixth Circuit

June 11, 2019

On Remand from the En Banc Court of the United States Court of Appeals for the Sixth Circuit. United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:06-cr-00244-1; 1:16-cv-00520-Solomon Oliver Jr., District Judge.

Before: MERRITT, MOORE, and ROGERS, Circuit Judges.

OPINION

KAREN NELSON MOORE, CIRCUIT JUDGE.

This case returns to us on remand from our en banc court in light of the en banc court's decision in United States v. Burris, 912 F.3d 386 (6th Cir. 2019) (en banc). Since we last addressed Petitioner-Appellant Brian Williams's collateral attack on his federal sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e); see Williams v. United States, 875 F.3d 803 (6th Cir. 2017), and while granting Williams's petition for rehearing en banc, 882 F.3d 1169 (6th Cir. 2018), our court has raised concerns regarding Williams's ability to raise a cognizable motion for relief under 28 U.S.C. § 2255 in light of various provisions constraining collateral review. In this opinion, per the en banc court's remand, we address those concerns in light of the comprehensive argument before the en banc court and then proceed to address the merits of Williams's motion in light of Burris. Because Williams qualifies for review under § 2255 and because no ACCA provision justifies his sentence, we VACATE Williams's sentence and REMAND for resentencing.

I. BACKGROUND

A. Williams's Conviction for Ohio Felonious Assault

In early 2000, Williams was indicted for, pleaded guilty to, and was convicted of attempted felonious assault in violation of Ohio Rev. Code § 2903.11(A). R. 39-3 (State Indictment and Journal Entry) (Page ID #227-28); R. 48-1 (State Sentencing Tr. at 7-8, 11) (Page ID #389-90, 393). Ohio Rev. Code § 2903.11(A) provides:

No person shall knowingly do either of the following: (1) Cause serious physical harm to another . . .;

(2) Cause or attempt to cause physical harm to another . . . by means of a deadly weapon or dangerous ordnance.

Ohio law in turn defines "serious physical harm," as included in § 2903.11(A)(1), to include "[a]ny mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment." Ohio Rev. Code § 2901.01(A)(5)(a). As Williams points out, none of the Shepard documents surrounding that conviction, see Shepard v. United States, 544 U.S. 13, 26 (2005), makes clear which of the two prongs of § 2903.11(A) Williams was convicted of having violated. Appellant's Br. at 16.[1] The Government does not dispute this characterization of the Shepard documents.

B. Williams's Sentencing as an Armed Career Criminal

In 2006, Williams was indicted for, pleaded guilty to, and was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) in the U.S. District Court for the Northern District of Ohio. R. 1 (Indictment) (Page ID #3-4); R. 19 (Judgment at 1) (Page ID #39). The ACCA applied then (and continues to apply) to anyone convicted of violating § 922(g) who "has three previous convictions . . . for a violent felony." 18 U.S.C. § 924(e)(1). The probation department recommended that Williams be sentenced as an armed career criminal under the ACCA, and the sentencing judge, Judge Dowd, agreed. See R. 18 (Sentencing Mem. Op. at 4) (Page ID #37); R. 25 (Sentencing Tr. at 2) (Page ID #116); Presentence Report ("PSR") at 1, 7-8. Williams's 2000 conviction for attempted felonious assault under Ohio Rev. Code § 2903.11(A) was one of the three prior convictions on which the probation department-and, ultimately, Judge Dowd-based this conclusion. See PSR at 1, 7-8; see also R. 1 (Indictment) (Page ID #3-4).

At the time, the ACCA defined "violent felony" to include any felony punishable by over one year of imprisonment that either: (i) has as an element the use, attempted use, or threatened use of physical force against the person of another ["elements clause"]; or

(ii) is burglary, arson, or extortion, involves use of explosives ["enumerated-crimes clause"], or otherwise involves conduct that presents a serious potential risk of physical injury to another ["residual clause"] . . . .

18 U.S.C. § 924(e)(2)(B). The parties agree that neither Judge Dowd nor probation specified the grounds on which Williams's 2000 conviction qualified as an ACCA predicate and that nothing else in the sentencing record sheds further light. See Appellant's Br. at 41; Appellee's Br. at 5, 53. Williams was sentenced to 180 months in prison. R. 19 (Judgment at 2) (Page ID #40).

C. Prior § 2255 Petitions and Intervening Legal Developments

Williams soon began seeking postconviction relief. In 2007, he moved pro se to vacate his sentence under 28 U.S.C. § 2255, claiming ineffective assistance of counsel, lack of federal jurisdiction for failure to satisfy the interstate-commerce element, and double jeopardy. R. 21 (2007 Mot. to Vacate at 4-7) (Page ID #55-58). The district court denied his motion. R. 29 (Dist. Ct. Op. & Order) (Page ID #185-87).

In 2010, Williams again moved pro se to vacate his sentence under § 2255. In that motion, he maintained that § 924(e)(1) did "not apply to him," arguing that at least one of his prior convictions did not "fit the criteria for application [of the] 924(e)(1) enhancement" and citing the Supreme Court's recent ruling that the ACCA's "phrase 'physical force' means violent force." See R. 31 (2010 Mot. to Vacate at 1-2) (Page ID #191-92); Curtis Johnson v. United States ("Johnson I"), 559 U.S. 133, 140 (2010). Williams also argued that the sentence imposed on him violated United States v. Booker, 543 U.S. 220 (2005), and his right to a jury trial. R. 31 (2010 Mot. to Vacate at 2-3) (Page ID #192-93). The district court transferred the motion to this court for authorization to file a second or successive motion, R. 32 (Transfer Order) (Page ID #195), and we denied Williams's request, R. 33 (2010 CA6 Order) (Page ID #196-97).

In 2012, a panel of our court ruled in United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), that felonious assault under Ohio Rev. Code § 2903.11(A) qualifies as a violent felony under the ACCA's elements clause. Id. at 402. The following year, a separate panel ruled that aggravated assault under Ohio Rev. Code § 2903.12(A), which is functionally "identical" to the felonious assault statute, Anderson, 695 F.3d at 402, qualifies as a violent felony under the ACCA's residual clause. United States v. Perry, 703 F.3d 906, 910 (6th Cir. 2013). Our court did not cite Anderson in that decision.

In 2013, Williams again sought authorization from our court to file a second or successive motion under § 2255, "seeking to pursue the following grounds for relief: (1) ineffective assistance of counsel during plea bargaining; and (2) the unconstitutional application of 18 U.S.C. § 922(g)(1) to his case." R. 34 (2013 CA6 Order) (Page ID #199-200). We again denied his request. Id. (2013 CA6 Order at 2) (Page ID #200).

In 2014, Williams filed a third pro se motion in the district court under § 2255. R. 35 (2014 Mot. to Vacate at 1) (Page ID #201). In that motion, Williams argued that Descamps v. United States, 570 U.S. 254 (2013), was retroactive and had established that his having been sentenced under the ACCA was "in conflict with the jury trial right as explained in Apprendi v. New Jersey, 530 U.S. 466 (2000)." R. 35 (2014 Mot. to Vacate at 1) (Page ID #201). The district court denied his motion. R. 36 (Dist. Ct. Order at 2) (Page ID #206).

D. Johnson II and the § 2255 Petition at Issue Here

In June 2015, in Samuel Johnson v. United States ("Johnson II"), 135 S.Ct. 2551 (2015), the Supreme Court ruled that the residual clause of the ACCA was unconstitutionally vague. Id. at 2557. In March 2016, this time represented by counsel, Williams moved (again in the district court) to vacate his sentence under § 2255 in light of the Supreme Court's due-process-based ruling in Johnson II. R. 39 (2016 Mot. to Vacate at 1, 3) (Page ID #210, 212). That April, the Supreme Court clarified that Johnson II was "a substantive decision and so has retroactive effect . . . in cases on collateral review." Welch v. United States, 136 S.Ct. 1257, 1265 (2016). The district court, meanwhile, transferred Williams's § 2255 motion to this court, R. 42 (Transfer Order) (Page ID #240-41), and this court, noting that "much has changed in the four years since we decided Anderson," granted Williams authorization, R. 43 (2016 CA6 Order at 4, 6) (Page ID #245, 247). Both we and the district court, however, rejected...

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