Williams v. United States
| Decision Date | 27 November 2017 |
| Docket Number | Criminal No. DKC 10-0109,Civil Action No. DKC 15-0606 |
| Parties | MARCO A. WILLIAMS v. UNITED STATES OF AMERICA |
| Court | U.S. District Court — District of Maryland |
Presently pending and ready for resolution are the motion to vacate under 28 U.S.C. § 2255 filed by Petitioner Marco Williams ("Petitioner"), (ECF No. 109), and the motion for leave to file a surreply filed by Respondent United States of America ("Respondent"). (ECF No. 136). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to vacate will be denied and the motion for leave to file a surreply will be granted.
On February 25, 2013, Petitioner pled guilty to two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Because Petitioner had prior Maryland convictions for attempted second degree murder, assault with intent to maim, and distribution of cocaine, he was sentenced to 216 months imprisonment as an armed career criminal under 18 U.S.C. § 924(e).
On March 3, 2015, Petitioner filed a motion to vacate under 28 U.S.C. § 2255. (ECF No. 109). Petitioner argues that he does not meet the statutory definition for an armed career criminal because his Maryland convictions for assault with intent to maim and attempted second-degree murder are not violent felonies. (ECF No. 124, at 1-2).1
Local Rule 105.2(a) states that, "[u]nless otherwise ordered by the Court, surreply memoranda are not permitted to be filed." The court may permit a surreply when a party would not otherwise have an opportunity to respond to arguments raised for the first time in the opposing party's reply. See Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003).
In his reply brief, Petitioner provided a different interpretation of a case that Respondent discussed in its response brief. As the surreply addresses the new legal theory identified for the first time in the reply brief, it will be accepted.
Respondent argues that the petition is procedurally barred because Petitioner did not raise the argument on direct appeal. (ECF No. 134, at 2-3). Although Petitioner concedes not raising the argument on direct appeal, Petitioner claims the failure to raise the argument can be excused because of the new rule of law announced in Johnson v. United States, 135 S.Ct. 2251 (2015). (ECF No. 135, at 12-13).
For habeas petitions, the general rule is that "claims not raised on direct appeal may not be raised on collateral review[.]" Massaro v. United States, 538 U.S. 500, 504 (2003). "The Supreme Court [of the United States] has recognized an equitable exception to the bar, however, when a habeas applicant can demonstrate cause and prejudice[.]" United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010). To demonstrate cause, the petitioner must show a reason for a procedural default based "on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel." United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). The petitioner must also demonstrate that he suffers "actual prejudice" if his claim is not reviewed. Brown v. Lee, 319 F.3d 162, 169 (4th Cir. 2003). The cause and prejudice exception to procedural default is designed "to induce litigants to present their contentions to the right tribunal atthe right time." Massaro, 538 U.S. at 504 (quoting Guinan v. United States, 6 F.3d 468, 474 (7th Cir. 1993)(Easterbrook, J., concurring)).
18 U.S.C. § 924(e)(1)(B). Despite having declined to do so only four years earlier, in 2015, the United States Supreme Court held the residual clause unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2556-58 (2015). The decision in Johnson "was not dictated by precedent existing at the time."
Welch v. United States, 136 S.Ct. 1257, 1264 (2016)(quoting Teague v. Lane, 489 U.S. 288, 301 (1989)).
Prior to Johnson, to be a violent, non-enumerated felony, the identified crime only had to have a likelihood of harm. James v. United States, 550 U.S. 192, 209 (2007), overruled by Johnson v. United States, 135 S.Ct. 2551 (2015)( ). Post-Johnson, to be a violent, non-enumerated felony, the "minimum conduct necessary for a violation of the state statute" must "necessarily require[] the use, attempted use or threatened use of 'physical force[.]'" United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016).
Petitioner's argument is that the minimum conduct necessary to sustain the prior Maryland convictions for assault with intent to maim and second-degree attempted murder do not satisfy the force clause. (ECF No. 124, at 4-5). This argument "was not reasonably available to counsel" at the time of sentencing because both offenses contained a probability of harm, and, thus, satisfied the residual clause. McCarver v. Lee, 221 F.3d 583, 591 (4th Cir. 2000); see Sykes v. United States, 564 U.S. 1 (2011), overruled by Johnson v. United States, 135 S.Ct. 2551 (2015)( intentional vehicular flight satisfied the residual clause because the ordinary violation of the law wouldcreate a risk of injury). Because Petitioner advances a novel argument made possible by a change in the law, Petitioner has demonstrated cause for not raising the claim on direct appeal. See Mikalajunas, 186 F.3d at 493.
Petitioner has also demonstrated prejudice. Petitioner's sentence is longer because the two prior offenses were counted as violent felonies. In short, because Petitioner's argument became viable due to the Supreme Court's decision in Johnson, Petitioner has demonstrated cause for not raising the argument earlier and prejudice if the argument is not considered. Therefore, the petition is not procedurally-barred. See, e.g., United States v. O'Shea, No. 02-10285-MLW, 2017 WL 2701751, at *3-5 (D.Mass. June 22, 2017)( the failure to raise on direct review an argument that an offense failed to satisfy the ACCA's force clause excused because of the Supreme Court's decision in Johnson); United States v. Hodges, 251 F.Supp.3d 1026, 1032 (W.D.Va. 2017)(same); United States v. Wilson, 249 F.Supp.3d 305, 315 (D.D.C. 2017)(same); Carpio v. United States, 218 F.Supp.3d 1182, 1194-95 (W.D.Wash. 2016)(same).
Under the ACCA, to determine whether a prior conviction satisfies the definition of "violent felony," courts "utilize the categorical approach, which focuses solely on the elements of the offense, rather than on the facts of the case." UnitedStates v. McNeal, 818 F.3d 141, 152 (4th Cir. 2016). Courts first determine the elements of the offense, and then, for the force clause, determine whether an element of the offense includes "use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i); see United States v. Winston, 850 F.3d 677, 683-85 (4th Cir. 2017)( Virginia's common law robbery did not categorically satisfy the ACCA's force clause).
Petitioner contends that although the prior convictions for assault with intent to maim and second-degree attempted murder may have a violent ends, the offenses do not, in all their applications, require the use of force as a means to accomplish that ends, and, therefore are not categorically violent felonies. (ECF No. 124, at 5). Respondent responds that to accomplish such an end, force must be employed, and, thus, the prior convictions are violent felonies. (ECF No. 134, at 8-10).
Petitioner's argument relies on the decision of the United States Court of Appeals for the Fourth Circuit in United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012). In Torres-Miguel, the Fourth Circuit found that an offense which had as an element "resulting in death or great bodily injury," Cal.Penal Code § 422(a), did not categorically require the use of physical force because an offense "may result in death or serious injury without involving use of physical force." Torres-Miguel, 701F.3d at 168 (emphasis in the original). However, this distinction "between indirect and direct application of force . . . no longer remains valid," In re Irby, 858 F.3d 231, 238 (4th Cir. 2017) because, in United States v. Castleman, the Supreme Court of the United States made explicit that it did not matter whether an injury resulted from direct or indirect means, so long as an offender caused a violent result, the force used was categorically violent. 134 S.Ct. 1405, 1415 (2014); see United States v. Burns-Johnson, 864 F.3d 313, 318 (4th Cir. 2017)("Castleman abrogates our statement in Torres-Miguel that the use of poison would not constitute the use of force[.]"); United States v. Reid, 861 F.3d 523, 529 (4th Cir. 2017)("While the holding of Torres-Miguel may still stand following the Supreme Court's decision in Castleman, its reasoning can no longer support an argument that the phrase 'use of physical force' excludes indirect applications.")
Nevertheless, Petitioner...
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