United States District Court, N.D. Alabama, Southern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Petitioner's Motion to
Vacate. (No. 2:16-cv-08158-RDP (“Habeas Docket”),
Doc. # 1). Petitioner's appointed habeas counsel filed a
supplemental brief on his behalf. (Id., Doc. # 5).
Respondent has responded to the Motion to Vacate and asks the
court to deny relief on the merits. (Id., Doc. # 9).
And, Petitioner's habeas counsel replied to the
Respondent's brief. (Doc. # 10).
motion seeks review of the sentence enhancement applied
during Petitioner's March 2005 sentencing, pursuant to
the Armed Career Criminal Act (“ACCA”). The
Eleventh Circuit has granted Petitioner leave to file a
second or successive motion to vacate regarding this
enhancement in light of the Supreme Court's opinion in
Johnson v. United States, 135 S.Ct. 2551 (2015). The
court has carefully reviewed Petitioner's arguments for
relief, and concludes that his arguments fail because he has
not shown that the court utilized the ACCA's residual
clause to enhance his mandatory minimum sentence. Therefore,
Petitioner's Motion to Vacate (Habeas Docket, Doc. # 1)
is due to be dismissed with prejudice.
Factual and Procedural Background
2003, a grand jury indicted Petitioner on one charge of being
a felon in possession of a firearm, in violation 18 U.S.C.
§ 922(g)(1). (No. 2:03-cr-00545-RDP-TMP (“Criminal
Docket”), Doc. # 1). In 2004, a jury convicted
Petitioner of the offense. (Id., Doc. # 44).
presentence investigation report (“PSR”)
discussed eight criminal convictions, three of which are
relevant to this motion. (Criminal Docket, Doc. # 56 at
¶¶ 27-34). First, in 1972, Petitioner pled guilty
in Alabama state court to assault with intent to murder and
assault with intent to ravish. (Id. at ¶ 28).
The PSR explained that Petitioner assaulted one victim with
intent to commit murder and “forcibly ravished” a
second victim. (Id.). The PSR indicated that both
criminal acts occurred on March 6, 1970. (Id.).
Second, in 1974, Petitioner pled guilty to robbery in Alabama
state court. (Id. at ¶ 29). The PSR stated that
he took money against the victim's will “by
violence.” (Id.). Third, in 1983, Petitioner
pled guilty to first degree assault. (Id. at ¶
33). The PSR explained that he had “engaged in sexual
intercourse . . . by forcible compulsion” with the
classified the 1972, 1974, and 1983 convictions as violent
felonies under 18 U.S.C. § 924(e)(2)(B). (Id.
at ¶¶ 23, 28, 29, 33). It utilized this form
language to explain the reasons for classifying these assault
and robbery convictions as violent felonies:
NOTE: This is a violent felony necessary for
application of the enhanced penalties at 18 U.S.C. §
924(e)(1). This conviction meets the criteria for
“violent felony” within the meaning of 18 U.S.C.
§ 924(e)(2)(B) because it is a crime punishable by
imprisonment for a term exceeding one year, and it was
committed on an occasion different from others, i.e., the
offense was separated by a meaningful opportunity to desist
activity before committing the other offense; it has, as an
element, the use, attempted use, or threatened use of
physical force against the person of another; and it
otherwise involves conduct that presented a serious potential
risk of physical injury to another. See also 4B1.4, comment.
(n.1) regarding time periods.
(Id. at ¶¶ 28, 29, 33) (emphasis in
original). The PSR stated that Petitioner had “three
felonies which were committed on occasions different from one
another for purposes of 18 U.S.C. § 924(e)(1).”
(Id. at ¶ 23). Because Petitioner was an armed
career criminal under U.S.S.G. § 4B1.4, the PSR
increased his offense level from 16 to 33. (Id. at
¶¶ 22-23). And, it asserted that Petitioner faced a
mandatory minimum sentence of fifteen years' imprisonment
under 18 U.S.C. § 924(e)(1). (Id. at ¶
sentencing, Petitioner's trial counsel challenged another
aspect of the PSR's guidelines calculation, but did not
object to its armed career criminal enhancement or its
recommendation of a fifteen year mandatory minimum sentence.
(See Criminal Docket, Doc. # 64 at 3-11). The
prosecutor submitted certified copies of the four criminal
convictions against Petitioner in 1972, 1974, and 1983.
(Id. at 11-14). Petitioner's trial counsel did
not object to their admission. (Id. at 14). The
court adopted the PSR's factual statements regarding the
guidelines calculation and its recommended guidelines range
of 188 to 235 months' imprisonment. (Id. at
16-17). The court sentenced Petitioner to 200 months'
imprisonment. (Id. at 25-26).
direct appeal, Petitioner's appointed counsel moved to
withdraw from representing him, pursuant to Anders v.
California, 386 U.S. 738 (1967). United States v.
Cook, 175 Fed.Appx. 273, 273 (11th Cir. 2006). The
Eleventh Circuit independently reviewed the trial court's
record and found no arguable issues of merit. Id. at
273-74. Accordingly, in March 2006, the Eleventh Circuit
granted counsel's motion to withdraw and affirmed
Petitioner's conviction and sentence. Id. at
2007, Petitioner filed his initial motion to vacate and
challenged the ACCA enhancement. (No. 2:07-cv-08015-RDP-TMP,
Doc. # 1 at 7-8). In that motion to vacate, Petitioner
summarily argued that he had not committed a violent crime
“which would justify a conviction and sentence as an
‘armed career criminal.'” (Id. at
7). A Magistrate Judge recommended denying the ACCA claim
because Petitioner had procedurally defaulted the claim when
he failed to raise it on appeal. (Id., Doc. # 7 at
7-8). In addition, the Magistrate Judge recommended denying
the ACCA claim on the merits because Petitioner did
“not dispute that his criminal history included the
requisite prior convictions.” (Id. at 8). The
court adopted the Magistrate Judge's recommendations and
denied Petitioner's motion to vacate with prejudice.
(Id., Docs. # 9 & 10). In April 2010, the
Eleventh Circuit denied Petitioner a certificate of
appealability to contest the denial of his initial motion to
vacate. (Id., Doc. # 16).
2016, following the Supreme Court's Johnson
opinion, the Eleventh Circuit granted Petitioner leave to
file a second or successive motion to vacate. (Criminal
Docket, Doc. # 79). The Eleventh Circuit discussed at length
the merits of Petitioner's ACCA challenge, and the
additional inquiries that this court would need to conduct.
It appears to us that Cook's conviction for first degree
assault likely qualifies as a violent felony without regard
to the ACCA's residual clause. In Alabama, one commits
first degree assault by: (1) causing serious physical injury
to any person by means of a deadly weapon or dangerous
instrument (with intent to cause such injury); (2) causing
serious and permanent disfigurement or destroying, amputating
or permanently disabling a member or organ of any person
(with intent to cause such injury); (3) causing serious
physical injury to another person by recklessly engaging in
conduct creating a grave risk of death to another person,
under circumstances manifesting extreme indifference to the
value of human life; or (4) causing serious physical injury
to another person in the course of and in furtherance of the
commission of certain enumerated crimes or while driving
under the influence of alcohol or ...