IRMA CARRILLO RAMIREZ, Magistrate Judge.
By Special Order 3-251, this habeas case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant findings and applicable law, the amended Motion Under 28 U.S.C. § 2255, to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody should be
Michael Dewayne Vickers (Movant) challenges his federal conviction and sentence in Cause No. 3:06-CR-229-B. The respondent is the United States of America (Government).
By indictment filed on July 25, 2006, Movant was charged with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). (See doc. 1.)
Movant filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, and it was denied on January 12, 2011. (See No. 3:09-CV-1777, docs. 8, 9.) He filed a second § 2255 motion on December 8, 2015, and amended it on January 12, 2016. (See 3:15-CV-3912, docs. 1, 5.) After being appointed to investigate and pursue any potentially meritorious claims, the Federal Public Defender filed an unopposed motion to transfer the case to the United States Court of Appeals for the Fifth Circuit for authorization to file a second or successive §2255 motion, which was granted on April 26, 2016. (See docs. 9, 10, 11.) On May 27, 2016, the Fifth Circuit authorized Movant to file a successive § 2255 motion challenging the enhancement of his sentence for possession of a firearm by a felon under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), based on Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). (See doc. 12); In re Vickers, No. 16-10509 (5th Cir. May 27, 2016). He filed his amended § 2255 motion on June 26, 2016. (See doc. 14.)
Movant contends that the use of his 1982 Texas murder conviction to enhance his sentence under § 924(e) violated his right to due process under Johnson because it can only be a violent felony under § 924(e)'s residual clause, since "it is not enumerated [in that statute] and lacks force as an element, because it is a species of injury causation." (See doc. 14 at 7.) The Government filed a response on October 13, 2016. (See doc. 19.)
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). It is well-established that "a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)).
A failure to raise a claim on direct appeal may procedurally bar an individual from raising the claim on collateral review. United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Defendants may only collaterally attack their convictions on grounds of error omitted from their direct appeals upon showing "cause" for the omission and "actual prejudice" resulting from the error. Shaid, 937 F.2d at 232. However, "there is no procedural default for failure to raise an ineffective-assistance claim on direct appeal" because "requiring a criminal defendant to bring [such] claims on direct appeal does not promote the[] objectives" of the procedural default doctrine, "to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massaro v. United States, 538 U.S. 500, 503-04 (2003). The Government may also waive the procedural bar defense. Willis, 273 F.3d at 597.
As the Supreme Court of the United States noted in Johnson,
135 S.Ct. at 2555-56. Subsection (i) is known either as the force clause, United States v. Lerma, 877 F.3d 628, 630 (5th Cir. 2017), or as the elements clause, United States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 2017). The four offenses listed in subsection (ii) are referred to as the "enumerated offenses," see United States v. Davis, 487 F.3d 282, 285 (5th Cir. 2007), or as the "enumerated offenses clause," Taylor, 873 F.3d at 477 n.1. The remainder of the subsection is known as the "residual clause," Johnson, 135 S.Ct. 2555-56.
Johnson held that the imposition of an increased sentenced under ACCA's residual clause violates the Constitution's guarantee of due process because the residual clause is unconstitutionally vague. Johnson, 135 S. Ct. at 2563.
Here, the offense of which Movant was convicted, murder, is not an enumerated offense. Neither the Fifth Circuit Court of Appeals nor any district court within the circuit appears to have considered whether it qualifies as a violent felony under ACCA's force clause because it has as an element the use, attempted use, or threatened use of physical force.
The version of Texas Penal Code § 19.02(a) in effect at the time of Movant's murder conviction in 1982 provided:
Tex. Penal Code § 19.02 (1974); see Act of June 14, 1973, 63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 913.
To determine whether a crime is a violent felony under the force clause, courts use either the categorical approach or the modified categorical approach, depending on whether the statute setting out the offense is indivisible or divisible. See Lerma, 877 F.3d at 631; United States v. Howell, 838 F.3d 489, 494-95 (5th Cir. 2016). An indivisible statute sets out "a single set of elements [defining]", or "various means of committing," a single crime or offense. Lerma, 877 F.3d at 631; Howell, 838 F.3d at 497. A divisible statute "lists multiple, alternative elements, and so effectively creates `several different . . . crimes.'" Descamps v. United States, 133 S.Ct. 2276, 2285 (2013) (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)).
"Elements are the constituent parts of a crime's legal definition", i.e., what the prosecution must prove and the jury must find beyond a reasonable doubt to convict the defendant, or what the defendant must admit when he pleads guilty. Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). "An element of a crime must be distinguished from the means of satisfying a single element." Lerma, 877 F.3d at 631. The test for determining whether a statute alternatively sets out elements or means of satisfying an element is whether a jury must agree on one of the statutory alternatives in reaching a verdict. Howell, 838 F.3d at 497.
Id. at 498 (quoting United States v. Hinkle, 832 F.3d 569, 574-75 (5th Cir. 2016)).
If a statute is indivisible because it sets out a single set of elements, the sentencing court must apply the "categorical approach." Mathis, 136 S.Ct. at 2248. It "requires the sentencing court, when determining whether a crime qualifies as a violent felony under the elements [or force] clause, to focus solely on whether the elements of the crime of conviction include the use, attempted use, or threatened use of physical force against the person of another." Lerma, 877 F.3d at 630. "The sentencing court is not permitted to review the particular facts of the case." Id.
If a statute is divisible because it lists alternative elements, the sentencing court must use the "modified categorical approach" to determine the elements under which the defendant was convicted. Mathis, 136 S.Ct. at 2253. Under this approach, the court looks "to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of [committing]." Id. at 2249 (citations omitted). "The court can then determine, in deciding whether the crime satisfies the elements [or force] clause, if one of those elements included the use, attempted use, or threatened use of physical force against the person of another." Lerma, 877 F.3d at 630.
To determine whether a statute is divisible or indivisible, courts may consider several sources, including the statutory text and state court decisions. United States v. Reyes-Contreras, 882 F.3d 113, 119 (5th Cir. 2018). The Texas Court of Criminal Appeals has held that the text of the current Texas murder statute contains three subsections setting out alternative means of committing the same offense.
Because the three subsections of the Texas murder statute set out three alternative means of committing murder by causing the death of an individual, and a jury is not required to agree by which of the three means a defendant committed murder, the statute is indivisible. See Lerma, 877 F.3d at 631; Howell, 838 F.3d at 497. The applicable approach for determining whether the offense of murder qualifies as a violent felony under ACCA's force clause is therefore the "categorical approach." See Mathis, 136 S.Ct. at 2248. The Court must therefore "focus solely on whether the elements of the crime of conviction include the use, attempted use, or threatened use of physical force against the person of another." See Lerma, 877 F.3d at 630.
"The phrase `physical force' [in § 924(e)(2)(B)(i)] means violent force—that is, force capable of causing physical pain or injury to another person." See Johnson v. United States, 559 U.S. 133, 140 (2010). As noted, neither the Fifth Circuit nor any district court within it appears to have considered whether Texas murder (which makes it a crime to cause the death of an individual) includes the use of physical force as an element for purposes of determining whether it qualifies a violent felony under ACCA's force clause.
In Villegas-Hernandez, the Fifth Circuit began its analysis of the Texas assault statute under the categorical approach by first explaining that "the term `force' has a specific meaning and, `when used in the statutory definition of a `crime of violence,' is `synonymous with destructive or violent force.'" Id. at 878-79 (quoting United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir. 2001)). Because use of force must be "an element" of the offense, assault would satisfy the definition of "crime of violence" in § 16(a) "only if a conviction for that offense could not be sustained without proof of the use of `destructive or violent' force." Id. at 879. The court noted that the "bodily injury" required by the assault statute "could result from any of a number of acts, without use of `destructive or violent force', [such as] making available to the victim a poisoned drink while reassuring him the drink is safe, or telling the victim he can safely back his car out while knowing an approaching car driven by an independently acting third party will hit the victim." Id. Because the prosecution would not need to show use of physical force to convict under these scenarios, the Fifth Circuit concluded that use of force was not a element of the offense, so assault did not qualify as a "crime of violence" under § 16(a). Id. In so finding, the Fifth Circuit recalled its prior en banc holdings in United States v. Vargas-Duran, 356 F.3d 598, 606 (5th Cir. 2004) (en banc), that "`[t]here is . . . a difference between a defendant's causation of injury and the . . . use of [physical] force,'" and that "`the intentional causation of injury does not necessarily involve the use of force.'" Id. at 880-81.
The Fifth Circuit subsequently considered whether a California terroristic threat statute had as an element the threatened use of physical force and was therefore a "crime of violence" for purposes of § 2L1.2 of the Sentencing Guidelines, which is in relevant part identical to ACCA's force clause. See United States v. De La Rosa-Hernandez, 264 F. App'x 446, 447-49 (5th Cir. 2008). Citing Villegas-Hernandez, it began its analysis by reiterating that its "rule is clear: if the defendant may be found guilty of an offense under a set of a facts not involving the actual, attempted use of physical force against another, the offense is not a [crime of violence]." Id. at 448-49 (emphasis original). Applying the categorical approach, the court found that "[a]s in Villegas, a defendant could violate [the California statute, which criminalized threatening to commit a crime that would result in death or great bodily injury to another person], by threatening either to poison another or to guide someone intentionally into dangerous traffic, neither of which involve `force', as that term is defined by our court." Id. at 449. Because it was possible to obtain a conviction under the statute without proof of the threatened use of physical force, the Fifth Circuit found that it was not an element of the offense, so it was not a crime of violence. Id.
More recently, in United States v. Rico-Mejia, 859 F.3d 318, 321 (5th Cir. 2017), the Fifth Circuit again considered whether a "terroristic threatening" statute had the threatened use of physical force as an element and was a crime of violence under § 2L1.2. The court found that even if the district court correctly resorted to the modified categorical approach in analyzing the Arkansas "terroristic threatening" statute, which made it an offense to threaten to cause death or serious bodily injury to another person, the offense could not constitute a crime of violence under Villegas-Hernandez and De La Rosa-Hernandez because a person could cause physical injury without using physical force. Id. at 322-23.
The Government argues that the Supreme Court's decision in United States v. Castleman, 134 S.Ct. 1405 (2014), undermined Villegas-Hernandez and the other Fifth Circuit cases that held that a statutory element of causing injury or threatening to cause the death of a person does not necessarily include the use or threatened use of physical force. (See doc. 19 at 5-9.) This argument has recently been expressly rejected by the Fifth Circuit, however:
Rico-Mejia, 859 F.3d at 322-23.
Subsequently, in Reyes-Contreras, the Fifth Circuit noted the Government's argument that "indirect force is sufficient, [and that Castleman had] overruled Fifth Circuit precedent requiring destructive or violent force by interpreting the use-of-force clause in 18 U.S.C. § 921(a)(33)(A)(ii) to encompass the common-law definition, which includes offensive touching and indirect applications of force." 882 F.3d at 123. It also noted, however, its prior holdings in Rico-Mejia as well as United States v. Calderon-Pena, 383 F.3d 254, 260 (5th Cir. 2004), "in which the en banc court expressly held that an offense that can be committed without `any bodily contact (let alone violent or forceful contact)'" does not have physical force as an element." Id. As the Fifth Circuit acknowledged,
Id. This court is likewise bound by Rico-Mejia's rejection of the Government's reliance on Castleman.
The Government also argues that in United States v. Howell, 838 F.3d 489 (5th Cir. 2016), the Fifth Circuit held that causation of bodily injury requires the use of force, so causation of death also requires the use of force, since death is a higher level of bodily injury. (See doc. 19 at 7-8.) The Texas statute at issue in Howell was assault by causing bodily injury to a family member by "impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth." Id. at 490-91. Holding that the offense was a crime of violence under the force clause, the court explained:
Id. at 502.
In addition to the element of causing bodily injury, the assault statute in Howell had as an element the use of physical force by either impeding breathing or circulation of the blood by applying pressure to the throat or by blocking the nose or mouth.
In conclusion, the Court finds that the Fifth Circuit's rationale in Villegas-Hernandez for finding that a person can cause bodily injury without the use of physical force, which was reaffirmed in De La Rosa-Hernandez and Rico-Mejia, applies equally to the determination of whether a person may cause the death of another under the Texas murder statute without the use of physical force. In those cases, the court repeatedly noted that there are any number of actions, including poisoning and deception, that do not require the use of destructive or violent force in order to cause bodily injury, or to threaten to commit a crime that would result in death or great bodily injury to another person. These same types of actions could also cause the death of a person. Because there is a set of facts that would support a conviction for Texas murder without proof of the use of force, and the use of force is not a fact necessary to support a conviction under that statute, the use of force is not an element of Texas murder. Applying the Fifth Circuit's clear rule in Villegas-Hernandez to the Texas murder statute, the Court finds that the offense is not a violent felony under ACCA's force clause.
Movant's sentence was enhanced under ACCA, in part, based on the murder offense. Because murder is no longer a violent felony after Johnson, the enhancement under the ACCA and increase in Movant's offense level as a career armed criminal does not survive.
The motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 should be
