Opposition Brief — Michael Lee Snyder, Petitioner v. United States
Supreme Court briefMar 29, 2018
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No. 17-7157
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
MICHAEL LEE SNYDER, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOHN P. CRONAN
Acting Assistant Attorney General
WILLIAM A. GLASER
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
QUESTION PRESENTED
Whether petitioner was entitled to post-conviction relief
based on Johnson v. United States, 135 S. Ct. 2551 (2015), where
the lower courts determined that he was sentenced under a different
clause of the definition of a “violent felony” in the Armed Career
Criminal Act of 1984, 18 U.S.C. 924(e), from the one this Court
invalidated in Johnson.
(I)
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 17-7157
MICHAEL LEE SNYDER, PETITIONER
v.
UNITED STATES OF AMERICA
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_______________
BRIEF FOR THE UNITED STATES IN OPPOSITION
_______________
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1-A15) is
reported at 871 F.3d 1122.
A prior decision of the court of
appeals is not published in the Federal Reporter but is reprinted
at 158 Fed. Appx. 942.
The opinion of the district court (Pet.
App. B1-B33) is not published in the Federal Supplement but is
available at 2016 WL 10677327.
JURISDICTION
The judgment of the court of appeals was entered on September
21, 2017.
The petition for a writ of certiorari was filed on
2
December 15, 2017. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
STATEMENT
Following a guilty plea in the United States District Court
for the District of Wyoming, petitioner was convicted of possession
of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1).
Judgment 1.
The district court sentenced petitioner to 172 months
and 11 days of imprisonment, to be followed by five years of
supervised release.
Id. at 2-3.
The court of appeals affirmed,
158 Fed. Appx. 942, and this Court denied a petition for a writ of
certiorari, 547 U.S. 1050.
In 2016, petitioner filed a motion to
vacate his sentence under 28 U.S.C. 2255.
Pet. App. B1.
The
district court denied petitioner’s motion and denied a certificate
of appealability (COA).
Id. at B1-B33.
granted a COA and affirmed.
1.
The court of appeals
Id. at A1-A15.
In March 2004, petitioner and two accomplices stole a
truck and committed a string of vehicle burglaries in Cheyenne,
Wyoming.
Presentence Investigation Report (PSR) ¶ 3.
Petitioner
stole a variety of items during those burglaries, including a
loaded .38 caliber revolver that he repeatedly fired in an effort
to break a chain attached to the stolen truck.
Ibid.
recovered the revolver at petitioner’s home.
Ibid.
2.
Police later
A federal grand jury charged petitioner with possession
of a firearm by a felon, in violation of 18 U.S.C. 922(g)(1).
3
Indictment 1.
Petitioner pleaded guilty to that offense.
Pet.
App. A2.
The default sentencing range for a violation of Section
922(g)(1)
is
zero
to
ten
years
of
imprisonment.
18
U.S.C.
924(a)(2). The Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.
924(e), prescribes a sentence of 15 years to life in prison if the
defendant has at least three prior convictions for a “serious drug
offense” or a “violent felony.”
18 U.S.C. 924(e)(1).
The ACCA
defines a “violent felony” as an offense punishable by more than
a year in prison that
(i)
has as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii)
is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another.
18 U.S.C. 924(e)(2)(B).
Clause (i) is known as the “elements
clause”; the first part of clause (ii) is known as the “enumerated
offenses clause”; and the latter part of clause (ii) (beginning
with “otherwise”) is known as the “residual clause.”
See Welch v.
United States, 136 S. Ct. 1257, 1261 (2016).
The Probation Office determined that petitioner was subject
to an enhanced sentence under the ACCA.
PSR ¶¶ 15, 86.
Probation
had
Office
noted
that
petitioner
a
prior
The
Wyoming
conviction for delivery of marijuana, which qualified as a serious
drug
offense,
and
two
Wyoming
convictions
for
residential
4
burglary, which qualified as violent felonies.
PSR ¶¶ 30, 36, 48.
The
however,
Probation
Office
did
not
specify,
whether
petitioner’s burglary convictions qualified as ACCA predicate
offenses under the enumerated offenses clause (which includes
“burglary”) or the residual clause.
Petitioner objected to the application of the ACCA based on
Apprendi v. New Jersey, 530 U.S. 466 (2000), on the ground that
his prior convictions had not been alleged in the indictment and
proven to a jury beyond a reasonable doubt.
Pet. App. A3.
He did
not, however, object to the Probation Office’s determination that
Wyoming burglary qualifies as a violent felony.
The
district
court
accepted
the
Ibid.
Probation
Office’s
determination that petitioner was an armed career criminal and
overruled his Apprendi-based objection.
Sent. Tr. 8, 10-11.
The
court sentenced petitioner to 180 months of imprisonment minus
seven months and 19 days petitioner had already served on a related
state sentence, for a total federal sentence of 172 months and 11
days.
Id. at 11-12; see Judgment 2.
The court of appeals affirmed.
158 Fed. Appx. 942.
Court denied a petition for a writ of certiorari.
135
This
547 U.S. 1050.
3.
In 2015, this Court held in Johnson v. United States,
S.
Ct.
2551,
that
unconstitutionally vague.
the
ACCA’s
Id. at 2557.
residual
clause
is
The Court explained,
however, that its decision invalidating the residual clause “d[id]
not call into question application of the [ACCA] to the four
5
enumerated offenses, or the remainder of the [ACCA’s] definition
of a violent felony.”
Id. at 2563.
The Court later held in Welch,
supra, that Johnson announced a substantive rule that applies
retroactively on collateral review.
In
2016,
petitioner
28 U.S.C. 2255.
39-56.
moved
136 S. Ct. at 1265.
to
vacate
his
sentence
under
Pet. App. A4; see 1 C.A. Record on Appeal (ROA)
Petitioner argued that Wyoming burglary could not qualify
as a violent felony under the ACCA’s residual clause following
Johnson.
1 ROA 42-44.
enumerated
offenses
He further argued that, even if the
clause
would
have
provided
a
basis
for
classifying Wyoming burglary as a violent felony at the time he
was sentenced, that clause no longer applied because Wyoming’s
burglary statute is broader than “generic” burglary under the ACCA
and, under the reasoning of this Court’s intervening decision in
Descamps
v.
United
States,
570
U.S.
254
(2013),
it
is
not
“divisible” into separate offenses for purposes of determining
whether his convictions were for generic burglary.
4.
The
district
court
denied
1 ROA 44-48.
petitioner’s
motion.
Pet. App. B1-B33.
a.
The district court determined, as a threshold matter,
that petitioner’s motion was untimely.
Pet. App. B13-B18.
A
federal prisoner generally must file a motion for post-conviction
relief within one year of the date on which his “judgment of
conviction becomes final.”
28 U.S.C. 2255(f)(1).
Petitioner’s
conviction became final when this Court denied his petition for a
6
writ of certiorari in 2006, and thus the district court concluded
that petitioner’s motion was several “years too late.”
Pet. App.
B17-B18.
The district court rejected petitioner’s contention that,
because he filed his motion within a year of the decision in
Johnson, it was timely under the statute-of-limitations exception
for motions filed within one year of the date on which a “new[],”
retroactively applicable right to relief “was initially recognized
by the Supreme Court.”
B17.
28 U.S.C. 2255(f)(3); see Pet. App. B14-
The court reasoned that Johnson invalidated only the ACCA’s
residual clause and that the record of petitioner’s case “offer[ed]
no basis whatsoever for the notion [that] the sentence [he]
received was based on the ACCA’s ‘residual clause,’ rather than
its ‘enumerated offenses clause.’”
Pet. App. B14.
The court
noted, for example, that neither it nor the Probation Office had
“made [any] reference to the residual clause” in finding that
petitioner qualified as an armed career criminal.
Id. at B15
(quotation marks omitted); see id. at B16. The court also observed
that
the
PSR
had
treated
petitioner’s
residential
burglary
convictions as violent felonies but did not classify a similar
conviction for burglary of a car (see PSR ¶ 49) as a violent
felony, which indicated an intent to draw a distinction between
generic burglary of a home and non-generic burglary of a vehicle.
Pet. App. B15; see Taylor v. United States, 495 U.S. 575, 599
(1990).
That distinction would only have mattered, the court
7
explained,
for
purposes
of
determining
whether
petitioner’s
offenses qualified as “burglary” under the enumerated offenses
clause.
Pet. App. B15; see Taylor, 495 U.S. at 598-599.
The district court acknowledged that it had not “delve[d]
into the intricacies” of whether petitioner’s burglary offenses
satisfied the enumerated offenses clause at sentencing.
B16.
Pet. App.
It explained, however, that “such a discussion was not
necessary” because petitioner did not object to classifying his
burglary convictions as ACCA violent felonies. Ibid. Accordingly,
because petitioner could not establish that he was sentenced under
the residual clause, as opposed to the enumerated offenses clause,
the court determined that he could not rely on Johnson as the start
of a new one-year limitations period for filing his motion for
collateral relief.
b.
Id. at B17, B20-B21.
The district court further determined that petitioner
had procedurally defaulted his claims by failing to raise them on
direct appeal.
Pet. App. B21-B26.
A prisoner may not obtain
collateral review of a defaulted claim unless he shows “cause” for
the default and “actual prejudice” from any error, or “actual
innocence.”
Bousley v. United States, 523 U.S. 614, 622 (1998)
(citations and quotation marks omitted).
The court noted that,
although petitioner purported to challenge his sentence under
Johnson, “[t]he sine qua non of [his] motion is the argument” that
Wyoming burglary “do[es] not meet the requirements of generic
burglary” under the ACCA’s enumerated offenses clause.
Pet. App.
8
B22.
The court held that petitioner could not demonstrate “cause”
for failing to raise that claim on direct appeal because it was
clearly available to him under longstanding precedent.
B22-B23.
Id. at
The court also rejected petitioner’s reliance on the
“actual innocence” exception in light of Tenth Circuit precedent
establishing that a prisoner cannot be actually innocent of a
noncapital sentence.
c.
Id. at B23-B24 (citing cases).
Finally, the district court determined that petitioner’s
challenge to his ACCA sentence failed on the merits because his
burglary convictions did in fact qualify as violent felonies under
the enumerated offenses clause.
Pet. App. B26-B33.
The court
observed that, under Tenth Circuit precedent, Wyoming’s burglary
statute identifies two divisible offenses that qualify as generic
burglary (burglary of a building or occupied structure) and one
offense that does not (burglary of a vehicle).
Id. at B27-B28
(citing United States v. Gonzales, 558 F.3d 1193, 1197-1198 (10th
Cir.), cert. denied, 558 U.S. 864 (2009)).
Petitioner had not
objected to the Probation Office’s determination that he was
convicted of the former type of burglary, and thus the court
determined that he had conceded that his prior convictions were
for generic versions of the offense.
5.
merits.
a.
Id. at B31-B33.
The court of appeals granted a COA and affirmed on the
Pet. App. A1-A15.
As an initial matter, the court of appeals took the view
that petitioner’s motion was timely under 28 U.S.C. 2255(f)(3).
9
Pet. App. A5-A6.
The court interpreted that subsection to require
only that a motion for post-conviction relief “invoke [a] newly
recognized right.” Id. at A6 (quotation marks omitted). The court
concluded
that,
because
petitioner
had
invoked
“the
right
established in Johnson, to be free from a sentence purportedly
authorized by the unconstitutionally vague residual clause,” and
had filed his motion within a year of the date on which Johnson
was decided, his claim was timely even if his sentence did not in
fact rely on the residual clause.
Id. at A7.
The court of appeals also took the view that, although
petitioner had procedurally defaulted his claims by failing to
raise them on direct appeal, the default was excusable.
A7-A10.
Pet. App.
The court concluded that this Court’s constitutional
holding in Johnson was sufficiently novel that petitioner would
not have had “cause” to raise the issue at the time of his direct
appeal
and
that
his
claim
to
have
been
sentenced
above
the
otherwise-applicable statutory maximum was sufficient to establish
prejudice.
Id. at A9-A10.
The court did not address the district
court’s determination that petitioner lacked cause for failing to
raise on direct appeal his separate claim that Wyoming burglary
does not qualify as a violent felony under the ACCA’s enumerated
offenses clause.
The court of appeals determined, however, that petitioner’s
claim “fails on the merits because, after examination of the record
and the relevant background legal environment, it is apparent that
10
he was not sentenced based on the ACCA’s residual clause that was
invalidated
in
Johnson.”
Pet.
App.
A2;
see
id.
at
A11-A12
(“agree[ing] with” the district court’s finding that, “as a matter
of historical fact,
clause”).
* * *
it did not apply the ACCA’s residual
Like the district court, the court of appeals observed
that neither the district court nor the Probation Office had
identified the ACCA’s residual clause as a basis for petitioner’s
sentence, and that the PSR strongly suggested that petitioner’s
sentence depended on application of the enumerated offenses clause
by drawing an apparent distinction between generic residential
burglary
and
non-generic
vehicle
burglary,
former as an ACCA predicate offense.
treating
Id. at A11.
only
the
While the
district court had relied on those facts to find that petitioner’s
Johnson claim was untimely, the court of appeals relied on them to
show the claim’s lack of merit.
Id. at A11-A12.
The court of appeals further noted that the law at the time
of petitioner’s sentencing supported application of the enumerated
offenses clause. Pet App. A12. As the court explained, a district
court’s determination that a defendant qualifies for an enhanced
sentence under the ACCA is “a finding that ‘rests largely on legal
conclusions,’” and it is therefore “‘possible to determine that a
sentencing court did not rely on the residual clause -- even when
the sentencing record alone is unclear -- by looking to the
relevant background legal environment at the time of sentencing.’”
Ibid. (quoting United States v. Geozos, 870 F.3d 890, 896 (9th
11
Cir. 2017)).
The court observed that petitioner’s sentencing
“occurred against the backdrop” of this Court’s decision in Taylor,
supra, which courts had interpreted to permit consideration of the
records of a prior conviction when applying the enumerated offenses
clause if the statute of conviction defined both generic and nongeneric offenses.
Id. at A13; see Taylor, 495 U.S. at 602.
Petitioner was convicted under a Wyoming statute that covered both
generic burglary of “a building [or] occupied structure” and nongeneric burglary of a “vehicle,” Wyo. Stat. Ann. § 6-3-301(a) (West
1983), and thus “it would have been permissible for the district
court to examine the underlying charging documents and/or jury
instructions to determine if [petitioner] was charged only with
burglary of buildings.”
PSR
* * *
Pet. App. A14.
The court noted that “the
actually did just that, without any objection” from
petitioner, and thus “there would have been little dispute at the
time of [petitioner’s] sentencing that his two Wyoming burglary
convictions involving occupied structures fell within the scope of
the ACCA’s enumerated crimes clause.”
b.
A20.
Id. at A13-A14.
Judge McHugh concurred in the result.
Pet. App. A16-
Judge McHugh reasoned that a Johnson-based Section 2255
motion is untimely “where the record reveals that the petitioner
is not asserting the right recognized in Johnson -- the right not
to be sentenced as an armed career criminal under the residual
clause of the ACCA.”
Id. at A19.
Nonetheless, she would have
held that petitioner’s motion was timely because “he has asserted
12
a right that may have been recognized by the Supreme Court in
Johnson.”
Ibid.
Judge McHugh also agreed “with the majority’s
analysis concerning [petitioner’s] inability to prevail on the
merits” of his claim because the relevant legal background at the
time of sentencing “leaves no doubt that [his] ACCA enhancement
was based on the sentencing court’s application of the enumerated
offenses clause.”
Id. at A20.
ARGUMENT
Petitioner contends (Pet. 8-20) that the court of appeals
erred by requiring him to show that he was sentenced under the
ACCA’s residual clause, as opposed to the enumerated offenses
clause, in order to obtain relief under Johnson v. United States,
135 S. Ct. 2551 (2015).
The court’s decision is correct and does
not conflict with decisions of any other court of appeals.
The
petition for a writ of certiorari should be denied.
1.
A
federal
prisoner
generally
may
not
obtain
post-
conviction relief unless he establishes that his sentence was
“imposed in violation of the Constitution or laws of the United
States.”
28 U.S.C. 2255(a).
That stringent standard reflects the
principle that collateral review “is an extraordinary remedy” that
“will not be allowed to do service for an appeal.”
Bousley v.
United States, 523 U.S. 614, 621 (1998) (citation omitted).
After
the completion of direct review in a criminal case, “a presumption
of finality and legality attaches to the conviction and sentence,”
Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (citation omitted),
13
and courts are “entitled to presume” that the defendant’s sentence
is lawful, United States v. Frady, 456 U.S. 152, 164 (1982).
“presumption of regularity
* * *
That
makes it appropriate to assign
a proof burden to the defendant” on collateral review.
Parke v.
Raley, 506 U.S. 20, 31 (1992); see Hawk v. Olson, 326 U.S. 271,
279 (1945) (explaining that a prisoner necessarily “carries the
burden in a collateral attack on a judgment”).
2.
The
limitations
on
post-conviction
relief,
and
the
prisoner’s burden of proof in that context, preclude an approach
that would grant relief from an ACCA sentence based on Johnson
without requiring the prisoner to show that his sentence was
actually the result of Johnson error.
Johnson invalidated the
ACCA’s residual clause, but it “d[id] not call into question
application of the [ACCA] to the four enumerated offenses, or the
remainder of the [ACCA’s] definition of a violent felony.”
Ct. at 2563.
135 S.
Whether viewed as a question of timeliness, as the
district court did (Pet. App. B13-B18), or as a matter that affects
the underlying merits of the claim, as the court of appeals did
(id. at A11-A14), a prisoner who fails to prove that his ACCA
sentence actually depended on application of the residual clause
fails
to
carry
his
burden
violation
that
could
of
support
demonstrating
collateral
a
constitutional
relief.
Because
petitioner failed to make that showing -- indeed, the lower courts
found “as a matter of historical fact” that his sentence was based
14
on the enumerated offenses clause and not the residual clause, id.
at A11; see id. at A11-A12, B14-B17 -- relief was properly denied.
Petitioner’s contrary arguments upend the burden of proof on
collateral review.
He contends (Pet. 5, 10) that because a
sentencing court “may have” relied on the ACCA’s residual clause
to classify Wyoming burglary as a violent felony, he should be
granted resentencing to avoid the “possibility” of Johnson error.
But that contention ignores the stringent limitations on postconviction relief.
Petitioner must prove that his sentence was
“imposed in violation of the Constitution or laws of the United
States.”
28 U.S.C. 2255(a).
In the context of a Johnson claim,
that standard requires a showing that he was sentenced under the
unconstitutional residual clause.
If he was instead sentenced
under the enumerated offenses clause, which Johnson explicitly
“d[id] not call into question,” 135 S. Ct. at 2563, then he can
show no fundamental error warranting collateral relief.
Petitioner
asserts
(Pet.
13-14)
that,
before
Johnson,
“sentencing judges did not need to rely on” the ACCA’s other
clauses because “relying on the residual clause would have been
the easier and more available route” to impose an ACCA sentence.
That assertion is incorrect.
Petitioner’s prior convictions were
for
enumerated
burglary,
which
924(e)(2)(B)(ii).
the
Tenth
Circuit
is
an
offense.
18
U.S.C.
As the pre-Johnson experience in this Court and
demonstrates,
the
most
natural
basis
for
classifying a burglary conviction as an ACCA violent felony was to
15
classify it as “burglary” under the enumerated offenses clause.
See, e.g., Taylor v. United States, 495 U.S. 575, 598-599 (1990)
(reviewing classification of convictions for Missouri burglary);
United States v. King, 422 F.3d 1055, 1058 (10th Cir. 2005) (same
for New Mexico commercial burglary), cert. denied 546 U.S. 1120
(2006); United States v. Hill, 53 F.3d 1151, 1155 (10th Cir.)
(en
banc)
(same
for
Oklahoma
second-degree
burglary),
cert.
denied, 516 U.S. 900 (1995). The Tenth Circuit had, in fact, taken
that approach with respect to the Wyoming burglary statute under
which petitioner was convicted.
See United States v. Barney, 955
F.2d 635, 640 (10th Cir. 1992) (holding that, although Wyoming
burglary
is
broader
than
generic
burglary,
the
defendant’s
conviction satisfied the enumerated offenses clause because the
charging
document
burglarizing
a
definition”
of
established
“building,”
generic
that
thus
burglary);
he
pleaded
“fulfill[ing]
see
also
guilty
the
United
to
Taylor
States
v.
Gonzales, 558 F.3d 1193, 1197 (10th Cir.) (same), cert. denied 558
U.S. 864 (2009).
And as the lower courts expressly found, the
sentencing court in this case applied the enumerated offenses
clause, not the residual clause, when it sentenced petitioner in
2005.
Pet. App. A11-A12.
The fact that courts sometimes relied on the residual clause
to conclude that specific burglary offenses qualified as ACCA
predicates does not indicate that the residual clause was the
“analytical path of least resistance” in every case.
Pet. 16.
16
Some
courts
of
appeals
considered
whether
burglary
offenses
qualified under the residual clause only after determining that
the relevant offense did not fall within the enumerated offenses
clause.
See, e.g., United States v. Coleman, 655 F.3d 480, 482-
483 (6th Cir. 2011), cert. denied, 565 U.S. 1129 (2012); United
States v. Mayer, 560 F.3d 948, 959-960 (9th Cir.), cert. denied,
558 U.S. 860 (2009).
Analysis under the residual clause required
courts to consider “whether the conduct encompassed by the elements
of the offense, in the ordinary case, present[ed] a serious
potential risk of injury to another” that was comparable to the
risk posed by the enumerated offenses (including “burglary”),
James v. United States, 550 U.S. 192, 208 (2007), overruled by
Johnson, 135 S. Ct. at 2563, which were themselves “far from clear
in respect to the degree of risk each poses,” Begay v. United
States, 553 U.S. 137, 143 (2008).
2558
(describing
residual
clause).
problems
A
in
See Johnson, 135 S. Ct. at 2557comparing
determination
burglary
that
a
offenses
particular
to
crime
qualified as “burglary” under the enumerated offenses clause often
presented the more straightforward path to applying the ACCA.
Petitioner’s assertion that the court of appeals’ decision
arbitrarily conditions relief on whether the sentencing court
“uttered the magic words ‘residual clause,’” Pet. 16 (citation
omitted), is incorrect.
As the lower courts explained, a prisoner
can meet his burden under Section 2255 to establish Johnson error
if the record and “relevant background legal environment” at the
17
time of sentencing indicate that he was likely sentenced under the
residual clause. Pet. App. A12. A prisoner may show, for example,
that courts had classified his offense as an ACCA predicate under
the residual clause, supporting an inference that the sentencing
court did the same.
He may also show that his offense could only
have been treated as a violent felony under the residual clause
because, under the law at the time, it would not have satisfied
one of the other clauses.
See, e.g., Sykes v. United States, 564
U.S. 1, 8 (2011) (analyzing Indiana felonious vehicle flight),
overruled by Johnson, 135 S. Ct. at 2563.
In any event, it is not arbitrary to require a prisoner to
satisfy the ordinary burden of proof when seeking collateral relief
under Johnson.
See, e.g., Dimott v. United States, 881 F.3d 232,
242 (1st Cir. 2018) (“Requiring habeas petitioners to establish
-- by a preponderance of the evidence -- that they were sentenced
pursuant to the residual clause does not lead to treating similarly
situated defendants differently.
Precisely the opposite:
it is
imposing a uniform rule.”), petition for cert. pending, No. 171251 (filed Mar. 8, 2018).
Johnson
claimants
“What would be arbitrary is to treat
differently
than
all
other
movants claiming a constitutional violation.”
[Section]
2255
Beeman v. United
States, 871 F.3d 1215, 1224 (11th Cir. 2017) (emphasis added).
3.
Contrary to petitioner’s contention (Pet. 8-13), the
court of appeals’ decision does not conflict with decisions of any
other circuit.
Petitioner identifies no court of appeals that
18
would
necessarily
demonstrates
that
grant
relief
where,
as
here,
the
classification
of
a
the
prior
record
burglary
conviction was based on the enumerated offenses clause.
Petitioner’s claim of a circuit conflict relies principally
on the Fourth Circuit’s decision in United States v. Winston, 850
F.3d 677 (2017), which involved a second-or-successive motion
under Section 2255.
Second-or-successive relief is not available
unless (inter alia) a prisoner makes a threshold showing that his
claim “relies on a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.”
2255(h).
28 U.S.C. 2244(b)(2)(A); see 28 U.S.C.
In Winston, the court of appeals stated that, in the
context of a Johnson claim, the phrase “relies on” requires only
a showing that the prisoner’s sentence “may have been predicated
on application of the now-void residual clause.”
850 F.3d at 682.
The court determined that the record of the sentencing in Winston
did not indicate “which clause of Section 924(e)(2)(B)” applied
and, thus, the prisoner could make a showing that his claim
“‘relied on,’ at least in part, the new rule of constitutional law
announced in Johnson.”
Ibid.
This case, in contrast, involves a first Section 2255 motion
challenging a sentence that the “district court found, as a matter
of historical fact,
* * *
did not [depend upon] the ACCA’s
residual clause,” and was instead based on the enumerated offenses
clause.
Pet. App. A11.
The court of appeals “agree[d]” with that
19
finding based on its own review of the record. Id. at A12. Winston
did not address such a situation, much less require that a motion
for post-conviction relief be granted on such facts.
Moreover,
Winston’s reasoning is based on since-rejected dicta from an
Eleventh Circuit case involving a second-or-successive motion.
Compare In re Chance, 831 F.3d 1335 (2016), with Beeman, 871 F.3d
at 1221, 1228 n.3 (rejecting dicta in Chance); see also Dimott,
881 F.3d at 240 & n.6, 242 (same).
No reason exists to assume
that the Fourth Circuit would adhere to Winston’s reasoning if
presented with a case, like this one, involving the merits of a
claim for relief on a first motion under Section 2255 where the
record and applicable law indicate that the residual clause was
not a basis for the prisoner’s ACCA sentence.
Indeed,
another
allegedly
conflicting
decision
on
which
petitioner relies (Pet. 12) “came to a similar conclusion” as
Winston
on
the
approach
to
second-or-successive
motions
but
explicitly recognized that a prisoner cannot establish that his
claim “relies on” Johnson for purposes of filing such a motion if
the circumstances show that he was not in fact sentenced based on
the residual clause.
United States v. Geozos, 870 F.3d 890, 896
& n.6 (9th Cir. 2017).
The court explained that “a claim does not
‘rely on’” Johnson if a court finds, using both “the record before
the sentencing court and the relevant background legal environment
at the time of sentencing, that the sentencing court’s ACCA
determination did not rest on the residual clause.”
Ibid.
The
20
court of appeals expressly adopted that reasoning in this case.
See Pet. App. A12 (citing Geozos, 870 F.3d at 896).
Although the
Ninth Circuit in Geozos determined that the record and background
legal environment in that case did not foreclose relief, 870 F.3d
at 897, that judgment does not conflict with the court of appeals’
factbound determination that relief was unwarranted in this case.
Finally, contrary to petitioner’s contention (Pet. 11-12),
the Eleventh Circuit’s decision in Beeman is fully consistent with
the decision below.
The court there held that a prisoner is not
entitled to post-conviction relief on a Johnson claim unless he
can “show that -- more likely than not -- it was use of the residual
clause that led to the sentencing court’s enhancement of his
sentence,” a question that the court treated as one of “historical
fact” to be resolved in light of the record and legal background
at the time of sentencing.
Beeman, 871 F.3d at 1222, 1224 n.5.
The courts in this case resolved that question of historical fact
adversely to petitioner.
4.
See Pet. App. A11-A14.
Petitioner contends (Pet. 20-21) that, even if his ACCA
sentence depended on application of the enumerated offenses clause
rather than the residual clause, he is still entitled to postconviction relief because his Wyoming burglary convictions would
not qualify as ACCA predicates “under today’s law.”
He argues
(Pet. 21) that Wyoming’s burglary statute is categorically broader
than the enumerated offense of generic burglary because it includes
burglary of vehicles, and that the statute is not “divisible” under
21
Mathis v. United States, 136 S. Ct. 2243 (2016), because it sets
forth “alternative means” of committing the offense rather than
“alternative elements.”
Id. at 2255.
Petitioner’s contention does not warrant review.
First, his
challenge to the application of the enumerated offenses clause is
untimely.
Petitioner’s claim would only be timely if it was filed
within a year of “the date on which the right asserted was
initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.”
28 U.S.C. 2255(f)(3).
Mathis, however, did not announce a new rule; rather, the Court
explained that the distinction between elements and means on which
petitioner relies was derived from a “straightforward” application
of “more than 25 years” of precedent.
at 2247, 2251.
136 S. Ct. at 2257; see id.
As the courts of appeals have uniformly held,
“Mathis is a clarification of existing rules rather than a new
rule itself,” Arazola-Galea v. United States, 876 F.3d 1257, 12591260 (9th Cir. 2017) (citing cases), and thus it did not start a
new limitations period under Section 2255(f)(3).
Petitioner’s
reliance in his Section 2255 motion on Descamps v. United States,
570 U.S. 254 (2013), is similarly misplaced.
See 1 ROA 44-48.
Petitioner filed his motion several years after Descamps was
decided, and in any event, that decision (like Mathis) merely
clarified the circumstances in which a statute may be treated as
22
divisible under existing precedent, rather than announcing a new
rule.
570 U.S. at 260-264.
Second,
petitioner
procedurally
failing to raise it on direct appeal.
621-623.
defaulted
his
claim
by
See Bousley, 523 U.S. at
Petitioner cannot demonstrate “cause” for that default.
Id. at 622 (citation omitted).
Because the holdings of Mathis and
Descamps were consistent with longstanding precedent, petitioner
cannot show that a challenge based on the principles stated in
those opinions would have been “so novel” at the time of his direct
appeal “that its legal basis [was] not reasonably available” to
him.
Ibid.
(citation
omitted).
And
although
petitioner’s
challenge would not likely have succeeded in light of the Tenth
Circuit’s decision in Barney, supra, this Court has long held that
“futility cannot constitute cause.”
(citation
omitted).
Nor
can
Bousley, 523 U.S. at 623
petitioner
innocence” exception to procedural default.
satisfy
Ibid.
the
“actual
Even assuming
that a prisoner could in some circumstances be “actually innocent”
of a noncapital sentence, cf. Dretke v. Haley, 541 U.S. 386, 391392 (2004) (declining to resolve that question), petitioner cannot
make
such
a
showing
because,
as
discussed
below,
his
prior
convictions for Wyoming burglary were properly characterized as
ACCA predicate offenses.
Third, Wyoming’s burglary statute is divisible under Mathis.
In Mathis, this Court instructed lower courts to consult three
sources
in
determining
whether
a
statute
lists
alternative
23
elements (which would make it divisible) or means (which would
make it indivisible):
(1) the statutory text, (2) “authoritative
sources of state law,” and (3) the record of the defendant’s prior
conviction.
136 S. Ct. at 2256-2257.
At the time of petitioner’s
offense, Wyoming prohibited burglary of “a building, occupied
structure or vehicle, or separately secured or occupied portion
thereof.”
Wyo. Stat. Ann. § 6-3-301(a) (West 1983).
In Collins
v. State, 854 P.2d 688 (1993), the Wyoming Supreme Court held that
the term “occupied structure” includes occupied vehicles, and thus
the statute’s separate reference to burglary of a “vehicle” “stands
alone” as a distinct offense.
Id. at 696.
Consistent with that
interpretation, the relevant pattern jury instruction indicates
that a jury must find, as an element, the type of location that
was burglarized.
Wyo. Pattern Jury Instructions § 33.01A & Use
Note (2009) (Amended 2014) (requiring the jury to find that the
defendant
entered
or
remained
in
“a
[building]
[occupied
structure] [vehicle] [separately secured or occupied portion of a
building, occupied structure or vehicle],” and instructing the
court to use the “appropriate bracketed language”).
Here, petitioner’s convictions were for the distinct offense
of burglarizing “buildings.”
See PSR ¶¶ 36, 48 (noting that
petitioner was convicted of burglarizing two residences).
Those
24
convictions therefore qualified as “burglary” under the ACCA.
See
Taylor, 495 U.S. at 598-599.1
Fourth, and in any event, the underlying question of whether
Wyoming’s burglary statute is divisible does not warrant this
Court’s review because it is fundamentally a question of state
law.
This Court has a “settled and firm policy of deferring to
regional courts of appeals in matters that involve the construction
of state law,” and petitioner provides no reason to deviate from
that practice in this case.
Bowen v. Massachusetts, 487 U.S. 879,
908 (1988); see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S.
1, 16 (2004).
Nor does petitioner allege that the courts of
appeals are in disagreement about whether Wyoming burglary is
divisible after Mathis; indeed, to the government’s knowledge, no
court of appeals has yet squarely decided that question.2
The court of appeals stated, in dicta, that Mathis
“abrogated” the Tenth Circuit’s earlier determination in Gonzales,
supra, that Wyoming’s burglary statute is divisible. Pet. App.
A13 n.4. But the court did not explain why that was so, and in
light of its determination that petitioner could not establish his
entitlement to relief under Johnson -- the only claim the court
found timely and not subject to procedural default -- the court
had no reason to resolve in this case whether Wyoming law treats
the location of a burglary as an element.
1
Petitioner briefly argues (Pet. 19) that the court of
appeals’ decision “creates a separate and independent due process
violation” because it causes a prisoner who does not qualify for
the ACCA’s mandatory minimum sentence to serve “more time than the
law allows.” As explained, petitioner is validly subject to an
ACCA sentence, even under current law. In any event, petitioner
did not raise a due-process challenge below, and this Court’s
“traditional rule * * * precludes a grant of certiorari” when
“the question presented was not pressed or passed upon below.”
2
25
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOHN P. CRONAN
Acting Assistant Attorney General
WILLIAM A. GLASER
Attorney
MARCH 2018
United States v. Williams, 504 U.S. 36, 41 (1992) (citation
omitted).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.