ELLEN SEGAL HUVELLE, United States District Judge.
Defendant Ralph T. Wilson has filed a motion pursuant to 28 U.S.C. § 2255 to vacate and correct his sentence in light of the Supreme Court's decisions in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) and Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257,
On November 26, 1997, defendant entered a plea of guilty to one count of possession of a firearm by a convicted felon after having been previously convicted of three crimes involving a violent felony or a serious drug offense, in violation of 18 U.S.C. § 922(g)(1)
At the time defendant was sentenced, the ACCA defined a "violent felony" as:
Id. § 924(e)(2)(B). Subsection (i) is known as the "elements clause"; subsection (ii)'s
Defendant had one year from the date of Johnson 2015 to file a § 2255 motion for collateral relief based on that decision, see 28 U.S.C. § 2255(f),
On June 28, 2016, the FPD filed defendant's abridged § 2255 motion.
(Id. at 1.) Defendant's fully briefed motion was timely filed on October 26, 2016. (See Def.'s Supp. Mot. to Vacate Judgment Under 28 U.S.C. § 2255, ECF No. 51 ("Def.'s Supp. Mot.").) On December 30, 2016, the government filed an opposition (United States' Opp'n to Def.'s Mot. & Supp. Mot., ECF No. 53 ("Gov't Opp'n")), and defendant filed a reply on January 31, 2017. (Def.'s Reply Mem. in Support of Mot. & Supp. Mot., ECF No. 57 ("Def.'s Reply")).
Defendant's § 2255 motion claims that, in light of Johnson 2015 and Welch, striking
A federal prisoner may petition a district court to vacate, set aside, or correct his sentence on the grounds "that the sentence was imposed in violation of the Constitution or laws of the United States, . . . or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "If the court finds . . . that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).
The government argues that defendant's claim should be rejected without reaching the merits either because it is untimely or because it was "procedurally defaulted."
The government argues that defendant's claim is not a timely Johnson 2015 claim for three reasons: (1) the record does not establish that the sentencing court actually relied on the residual clause; (2) the claim is really based on an earlier Supreme Court case, Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("Johnson 2010"), not Johnson 2015; and (3) even if the claim is based on Johnson 2015, it was filed one-day late.
The government first argues that defendant's motion is untimely because defendant "has not carried his burden of showing that the district court actually relied on the residual clause to find that his prior convictions for [Maryland Robbery and DC ADW] qualified as violent felonies." (Gov't Opp'n at 8-9 (emphasis added).) According to the government, unless defendant can make this showing, he cannot pursue a claim based on Johnson 2015, and the statute of limitations for any other claim expired long ago. Defendant does not dispute that the record in this case does not indicate whether the sentencing court actually relied on the residual clause, but argues that proof of actual reliance is not necessary to bring a claim based on Johnson 2015.
The government's position has been rejected by virtually every court to have considered the question, including by two other judges in this district.
The reasoning of these other courts is persuasive. Several point out that the situation is closely analogous to a claim of unconstitutional jury instructions, where a "`general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground.'" See Ladwig, 192 F. Supp. 3d at 1158 (quoting Zant v. Stephens, 462 U.S. 862, 881, 103 S.Ct.2733, 77 L.Ed.2d 235 (1983)). In addition, "judges are not required by law to state at sentencing whether they are relying on the residual clause or the elements clause," and "there was no practical reason for judges to make this distinction at sentencing prior to June 26, 2015, when the Supreme Court decided that the residual clause was void for vagueness." Booker, 240 F.Supp.3d at 168, 2017 WL 829094, at *3; see also Brown, 240 F.Supp.3d at 169-70. Under those circumstances, to penalize defendant for the absence of a clear record would impose an unfair burden. Shabazz, 2017 WL 27394, at *5 ("requiring a petitioner to make an affirmative showing on a record that is not only more than ten years old, but was made at a time when I had no reason to identify on which ACCA clause his sentence relied would be inequitable and would render 2015 Johnson relief virtually impossible to obtain"); Winston, 850 F.3d at 682 ("We will not penalize a [defendant] for a court's discretionary choice not to specify under which clause of Section 924(e)(2)(B) an offense qualified as a violent felony.") Indeed, in defendant's case, he entered a plea of guilty pursuant to a plea agreement that did not even identify the three qualifying prior convictions. Finally, "[t]he government's position would create the absurd result that [one defendant] is not entitled to relief under Johnson, but a defendant who filed the same motion and had the same prior convictions would be entitled to relief if the sentencing judge years earlier had `thought to make clear that she relied on the residual clause.'" Booker, 240 F.Supp.3d at 169, 2017 WL 829094, at *4 (quoting In re Chance, 831 F.3d 1335, 1340 (11th Cir.
Accordingly, the Court concludes that defendant may bring a Johnson 2015 claim without establishing that the sentencing judge actually relied on the residual clause.
The government next argues that defendant's claim is untimely because it is not really based on the Supreme Court's Johnson 2015 decision, but rather on an earlier decision, Johnson 2010, for which the one-year filing deadline expired long ago.
Johnson 2010 concerned the meaning of the term "physical force" in the "elements" clause of the ACCA, § 924(e)(2)(B)(i). The Supreme Court held that "the phrase `physical force' means violent force—that is, force capable of causing physical pain or injury to another person." Johnson 2010, 559 U.S. at 140, 130 S.Ct. 1265. There is no question that Johnson 2010 is relevant to the merits of defendant's claim: in order to prevail defendant "must show that his [prior] convictions are not violent felonies under either the elements clause or the enumerated clause, which remain valid after Johnson [2015]." Booker, 240 F.Supp.3d at 169, 2017 WL 829094, at *4. To determine whether defendant's prior convictions for Maryland Robbery and DC ADW are covered by the elements clause will necessarily require application of Johnson 2010's definition of the term "physical force." See id. (defendant "must necessarily rely on current precedent interpreting ACCA and the elements clause"); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 313 n.12, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) ("[W]hen this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.").
However, the fact that Johnson 2010 is relevant to the merits of defendant's claim does not mean that his claim cannot be based on Johnson 2015. To the contrary, "[i]t is only as a result of 2015 Johnson's voiding of the residual clause that [defendant] could reasonably argue that he is no longer eligible for the ACCA enhancement." Diaz, 2016 WL 4524785, at *5 (internal quotation marks and citation omitted); see also, e.g., Booker, 240 F.Supp.3d at 169, 2017 WL 829094, at *4 (relevance of Johnson 2010 "does not convert [defendant's] Johnson [2015] motion into a habeas motion based on older cases"); Brown, 240 F.Supp.3d at 170, (same); Shabazz, 2017 WL 27394, at *4 ("Although [defendant's] Elements Clause argument engages with the 2010 Johnson holding, the availability of that argument in this case is wholly a product of the new rule announced in 2015 Johnson."); United States v. Winston, 207 F.Supp.3d 669, 673 n.1 (W.D. Va. 2016) ("Government's procedural attack on Defendant's petition as focusing solely on Johnson [(2010)] is likely better understood as a substantive argument that—even after receiving the benefit of Johnson [(2015)]—Defendant has not suffered prejudice, because his conviction nonetheless falls within the [elements] clause."); Ladwig, 192 F.Supp.3d at 1159-60 ("Only with Johnson [2015]'s invalidation of the residual clause could [defendant]
The government's last challenge to the timeliness of defendant's motion is based on the fact that the one-year period for filing claims based on Johnson 2015 expired on Monday, June 27, 2016, but defendant's motion was not filed until the following day, Tuesday, June 28, 2016. Defendant acknowledged from the outset that the motion was filed one day late (see Def.'s Mot. at 1), but asserts that the circumstances warrant equitable tolling (Def.'s Supp. Mot. at 8). The government recognizes that equitable tolling is available, but takes the position, albeit only in a footnote, that "it is not clear that defendant is entitled to equitable tolling here." (Gov't Opp'n at 10 n.7.)
A defendant is "entitled to equitable tolling" if he can show "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649-51, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Given the circumstances in the present case, the Court finds that equitable tolling is appropriate. Once the Supreme Court decided Welch in March 2016, opening the door for collateral attacks based on Johnson 2015, very little time remained for a defendant to file a § 2255 motion. Many defendants who were potentially eligible for relief, including Wilson, were represented at trial by appointed counsel, sentenced many years ago, and no longer had counsel actively representing them. To ensure that such defendants were able to timely file, the FPD was appointed to determine which defendants sentenced in this district might qualify for relief, and, to achieve this task, it sought a full accounting of all defendants from this jurisdiction who were sentenced under the ACCA. For some reason, defendant's name did not appear on any list, but when the FPD learned of defendant's ACCA status, it immediately filed an abridged motion on his behalf, a mere one day late, and then it timely filed a supplemental motion. If that one-day delay precludes defendant from seeking relief and his ACCA sentence is unlawful, he will serve a sentence that is, at a minimum, five years longer than it should be. The doctrine of equitable tolling exists to prevent such unjust outcomes. Accordingly, the Court concludes that defendant is entitled to equitable tolling and that his § 2255 motion was timely filed.
Even if defendant's motion is timely, the government argues that his claim is barred by the procedural default rule because he did not challenge the constitutionality of the residual clause before the sentencing court or on direct appeal.
"The general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003); Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ("Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either "cause" and actual "prejudice," or that he is "actually innocent." (internal citations omitted)); United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). "The procedural-default rule is neither a statutory
Defendant concedes that his claim was not previously raised, but he argues that he has established both cause excusing his procedural default and "actual prejudice" resulting from the errors of which he complains. The Court agrees.
A defendant can show cause where a claim is "so novel that its legal basis [was] not reasonably available to counsel." Bousley, 523 U.S. at 622, 118 S.Ct. 1604. That is certainly the case here where, as the D.C. Circuit recently noted, "no one . . . could reasonably have anticipated Johnson [2015]." Redrick, 841 F.3d at 480. Thus, the Court finds, as have a number of other courts, that "[u]ntil the Supreme Court announced its new rule in Johnson, [defendant] did not have a reasonable basis upon which to challenge the constitutionality of ACCA's residual clause." Booker, 240 F.Supp.3d at 170, 2017 WL 829094, at *5 (internal quotations omitted); Brown, 240 F.Supp.3d at 171-72 (same); see also Carpio v. United States, No. C16-0647, 218 F.Supp.3d 1182, 1194-95, 2016 WL 6395192, at *8 (W.D. Wash. Oct. 28, 2016) (before Johnson 2015 "the Supreme Court had twice rejected a constitutional challenge to the residual clause"); United States v. Sabetta, 221 F.Supp.3d 210, 225-26, 2016 WL 6157454, at *11 (D.R.I. 2016) (same).
To establish prejudice, a defendant "must at least demonstrate that `there is a reasonable probability that, but for [the errors], the result of the proceeding would have been different.'" United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (alteration in original) (quoting Strickland v. United States, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The Court may "assume for purposes of [the prejudice] analysis that there was [] error." Id. at 1145. Here, the prejudice from the alleged error is clear: the ACCA subjected defendant to a 15-year mandatory minimum; absent the ACCA, the statutory maximum sentence for his offense would have been 10 years. See Brown, 240 F.Supp.3d at 171-73; see also United States v. Hope, No. CR 07-91, 2017 WL 1164352, at *2 (D. Mont. Mar. 28, 2017) ("a claim that the ACCA's now-invalid residual clause was used to a defendant's detriment at sentencing (by substituting a fifteen-year mandatory minimum for a ten-year maximum penalty) would be an error of a magnitude that would undoubtedly lead to actual prejudice to the defendant"); Carpio, 218 F.Supp.3d at 1194-95, 2016 WL 6395192, at *8 (same).
Since defendant has established both cause and prejudice, his claim is not barred by the procedural default rule.
Having concluded that defendant's claim is timely and not barred by the procedural default rule, the Court will proceed to consider it on the merits. Defendant argues that his ACCA sentence is unlawful
To determine whether a prior conviction qualifies as a "violent felony" under the elements clause, courts use what is known as the "categorical approach." Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). The "categorical approach" means that courts look at the "elements" of the generic offense rather than the particular facts underlying a conviction. Id.; Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2253, 195 L.Ed.2d 604 (2016); United States of America v. Sheffield, 832 F.3d 296, 314 (D.C. Cir. 2016) (courts look at "`how the law defines the offense and not in terms of how an individual defendant might have committed it on a particular occasion'" (quoting Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008))). Thus, irrespective of a defendant's actual criminal conduct, a prior conviction will qualify as a violent felony under the elements clause only if the generic offense "has an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e). In addition, "it is not true that whatever a state happens to mean by `force' will invariably correspond to the meaning of that term. . . [in] § 924(e)." United States v. Mathis, 963 F.2d 399, 409 (D.C. Cir. 1992). Rather, "[t]he meaning of "physical force" in § 924(e)(2)(B)(i) is a question of federal law, not state law," and, as previously noted, the Supreme Court has held that "the phrase `physical force' [in § 924(e)] means violent force—that is, force capable of causing physical pain or injury to another person." Johnson 2010, 559 U.S. at 140, 130 S.Ct. 1265.
The first step in determining whether a state law offense is a violent felony under the elements clause is to look at the state's definition of the offense. In Maryland, robbery is defined as "the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or by putting him in fear."
But that is only the first step of the analysis. The next question is whether the force required to commit Maryland Robbery is the equivalent of the force required by § 924(e). The Court will begin by considering the level of force required to commit Maryland Robbery. Defendant argues that Maryland Robbery requires nothing more than the use of "de minimis force, i.e., offensive touching" (Def.'s Supp. Mot. at 11-12), while the government counters that "[t]he force required to commit Maryland Robbery is essentially the same as the definition of `physical force' in Johnson (2010)" (Gov't Opp'n at 13).
Under Maryland law, a robbery committed by use of force means that the "the taking must be accompanied or preceded by actual violence directed at the victim." Raiford v. Maryland, 52 Md.App. 163, 447 A.2d 496, 499 (1982), aff'd in part, rev'd in part on other grounds, 296 Md. 289, 462 A.2d 1192 (1983). "Actual violence includes both injury to the person and the overcoming of any resistance offered by the victim." Id. "`[T]he mere force that is required to take possession, when there is no resistance, is not enough, i.e., the force must be more than is needed simply to move the property from its original to another position.'" West, 539 A.2d at 234 (quoting Cooper v. Maryland, 9 Md.App. 478, 265 A.2d 569, 571 (1970)). But "if [the victim] resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make the taking robbery, however slight the resistance." West, 539 A.2d at 234 (quoting Cooper, 265 A.2d at 571); see also Facon v. Maryland, 144 Md.App. 1, 796 A.2d 101, 119 (2002) ("the degree of force necessary to constitute a robbery is immaterial `so long as it is sufficient to compel the victim to part with his property'" (quoting West, 539 A.2d at 234)), rev'd on other grounds, 375 Md. 435, 825 A.2d 1096 (2003).
The government is correct that Maryland Robbery cannot be accomplished simply by taking property by sudden or stealthy seizure or snatching. See, e.g., West, 539 A.2d at 235 (no robbery under Maryland law where the "only force applied was that necessary to take the pocketbook from her hand" and the victim was not aware her purse had been stolen until she saw the defendant running away). Yet, that does not answer the critical question: whether the level of force required to overcome resistance, under Maryland law, is necessarily the same level of force required by § 924(e)? On that point, Maryland caselaw supports the defendant's position that it is not. For example, in Giles v. Maryland, the court explained that there is sufficient violence to constitute robbery if the defendant were "to run against another, or rudely push him about, for the purpose of diverting his attention and robbing him, and thus take the property from his person," noting that the "fact. . . that surprise aids the force employed to accomplish the taking will not prevent the force from aggravating the offense so as to make it robbery." 8 Md.App. 721, 261 A.2d 806, 807 (1970); see also Thomas v. Maryland, 128 Md.App. 274, 737 A.2d 622, 639 (1999) ("[I]f the pickpocket or his confederate jostles the owner, or if the owner, catching the pickpocket in the act, struggles unsuccessfully to retain possession, it is robbery." (quoting LaFave and Scott, Criminal Law § 8.11(1) (2d ed. 1986))). In addition, "[r]esistance need not emanate entirely from the victim." Raiford, 447 A.2d at 499. Thus, a purse snatching is accompanied by sufficient force to constitute robbery when the victim felt the
Based on these decisions, the Court concludes that the force required to overcome resistance and support a conviction for Maryland Robbery does not necessarily rise to the level of violent force capable of causing physical injury. Accordingly, a prior conviction for Maryland Robbery is not a qualifying conviction under the elements clause.
For the reasons stated above, the Court concludes that defendant has shown that his "sentence was in excess of the maximum authorized by law." 28 U.S.C. § 2255(b). Accordingly, defendant's § 2255 motions will be granted, his judgment of conviction vacated, and a resentencing ordered. A separate Order accompanies this Memorandum Opinion.
