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Boykin v. United States

United States District Court, N.D. Alabama, Southern Division

February 5, 2018

DONCEY FRANK BOYKIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF OPINION

          L. SCOTT COOGLER, UNITED STATES DISTRICT JUDGE

         Doncey Frank Boykin (“Boykin”) has filed with the Clerk of this Court a motion to vacate, set aside, or otherwise correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The United States opposes the motion. For the following reasons, the motion is due to be denied.

         I. Background

         In 2000, Boykin was convicted by a jury of a felon-in-possession-of-a-firearm count under 18 U.S.C. § 922(g)(1). This Court sentenced him to 235 months' imprisonment. Boykin appealed, and the Eleventh Circuit affirmed his sentence. United States v. Boykin, 273 F.3d 1120 (11th Cir. 2001) (Table). In the years that followed, Boykin filed several § 2255 motions that were each denied. However, on May 27, 2016, the Eleventh Circuit authorized Boykin to file a second-or-successive motion under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A) with respect to his claim that his sentence is invalid under Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). See Boykin v. United States, No. 16-12188 (11th Cir.). The instant motion followed.

         II. Discussion

         Boykin was sentenced under the mandatory-minimum provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), which provides enhanced penalties for defendants previously convicted of three or more “violent felonies, ” defined as offenses that either: (1) have as an element “the use, attempted use, or threatened use of physical force against the person of another, ” 18 U.S.C. § 924(e)(2)(B)(i) (known as the “elements clause”); (2) constitute “burglary, arson, or extortion, or involve[ ] the use of explosives, ” id. § 924(e)(2)(B)(ii) (known as the “enumerated offenses clause”); or (3) “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another, ” id. (known as the “residual clause”). Boykin qualified for the ACCA on the basis of three prior Alabama felony convictions: one for first-degree assault and two for second-degree robbery. For each of these three felonies, Boykin's Presentence Investigative Report (“PSR”) specified that it constituted a violent felony under the ACCA because it has “as an element the use, attempted use, or threatened use of physical force against the person of another, or [] otherwise involves conduct that presents a seriously potential risk of physical injury to another.” (Doc. 20 at ¶¶ 24, 35, 36.) In other words, the PSR referenced both the “elements clause” and the “residual clause” of the ACCA for each of these offenses.

         In Johnson, the Supreme Court held that the residual clause of the violent felony definition in the ACCA is unconstitutionally vague and thus imposition of an enhanced sentence under that provision violates the Fifth Amendment's guarantee of due process. 135 S.Ct. at 2557. The Supreme Court made clear that its ruling on the residual clause did not call into question the validity of the elements clause or the enumerated crimes clause of the ACCA's definition of a violent felony. Id. at 2563. Subsequently in Welch, 136 S.Ct. at 1264-65, the Supreme Court held that Johnson applies retroactively to cases on collateral review.

         In granting Boykin's request to file a second or successive motion, the Eleventh Circuit cautioned that although it was holding that Boykin had made a prima facie showing that his claim satisfied the requirements to file such a motion, [1] his sentence “may remain valid in light of the statute's other definitions of ‘violent felony.'” See Boykin, No. 16-12188. Indeed, the Eleventh Circuit made clear that its ruling did not bind this Court and this Court was to conduct a de novo review. This is in keeping with Eleventh Circuit precedent stating:

[A]fter we have granted an order under § 2244(b)(3)(A) authorizing a district court to consider a second or successive petition, the district court. . . must[] determine for itself whether [the § 2244(b)(2)] requirements are met. The statute instructs the court to do so. It provides that: “A district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” § 2244(b)(4).

Jordan v. Sec'y, Dep't of Corrs., 485 F.3d 1351, 1357 (11th Cir. 2007)[2]. See also In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013) (reiterating that the court of appeals' threshold conclusion in granting a successive application that a prima facie showing has been made is necessarily a “limited determination, ” as the district court then must also decide “fresh” the issue of whether § 2255(h)'s[3] criteria are met, and, if so, proceed to considering the merits of the § 2255 motion); In re Moore, 830 F.3d 1268, 1270-71 (11th Cir. 2016) (stating that the court of appeals' certification is only a “threshold determination” and “does not conclusively resolve” whether the petitioner's § 2255 motion satisfies the requirements of § 2255(h)(2)).

         Thus, it is clear that this Court must first decide whether Boykin has met the requirements for filing a second or successive petition under 28 U.S.C. §§ 2255(h) and 2244(b)(2), giving no deference to the Eleventh Circuit's prima facie decision, and only if the Court finds that he has, the Court may then proceed to consider the merits of Boykin's motion. See Faust v. United States, 572 F. App'x 941, 943 (11th Cir. 2014) (unpublished) (“Only if the district court . . . concludes that the movant ‘has established the statutory requirements for filing a second or successive motion' should it ‘proceed to consider the merits of the motion, along with any defenses and arguments the respondent may raise.'”) (quoting Moss, 703 F.3d at 1303).

         Boykin's motion fails because his assault and robbery offenses remain violent felonies after Johnson, in which the Supreme Court invalidated the ACCA's residual clause, because they fall under the ACCA's elements clause, which Johnson left untouched.

         For an offense to fall under the ACCA's elements clause, it must have an element of “violent force-that is, force capable of causing physical pain or injury to another person.” Curtis Johnson v. United States, 559 U.S. 133, 140 (2010). Under Curtis Johnson, actual pain or injury, therefore, is not required. Cf. 18 U.S.C. § 924(e)(2)(B)(i) (elements clause applies to attempted and threatened uses of force). While the force involved must be more than “the merest touch, ” “a slap in the face” would be sufficiently violent. Curtis Johnson, 559 U.S. at 143.

         A. Boykin's Alabama ...


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