Petition for Writ of Certiorari — Johnnie Franklin Wills, Petitioner v. Michael Reger, Superintendent, Northern Correctional Facility

No.:________________

IN THE SUPREME COURT OF THE UNITED STATES

___________

Johnnie Franklin Wills, Petitioner,

v.

Karen Pszczolkowski, Respondent.

___________

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

Jeremy B. Cooper

Counsel of Record

Blackwater Law PLLC

PO Box 14837

Pittsburgh, PA 15234

(304) 376-0037

jeremy@blackwaterlawpllc.com

QUESTION PRESENTED

Is a judicially crafted residual clause, which allows a life sentence to be imposed via a

state recidivist statute only when certain underlying crimes meet the threshold of “(1) actual

violence, (2) a threat of violence, or (3) substantial impact upon the victim such that harm

results,” unconstitutional in light of this Court's holdings in Johnson v. United States, 576 U.S.

591, 135 S. Ct. 2551, 192 L. Ed. 2D 569 (2015); Sessions v. Dimaya, 584 U.S. 148, 138 S.Ct.

1204, 200 L.Ed.2d 549 (2018), and United States v. Davis, 588 U.S. 445, 139 S. Ct. 2319, 204

L.Ed.2d 757 (2019)?

i

PARTIES TO THE PROCEEDINGS BELOW

1. Johnnie Franklin Wills.

a. Mr. Wills was a criminal defendant and state post-conviction habeas

petitioner in the Circuit Court of Hampshire County, West Virginia, and

the petitioner in a direct appeal to the Supreme Court of Appeals of West

Virginia in State v. Wills, No. 16-1199 (W. Va. Nov. 22, 2017). He was

also the Petitioner in a state post-conviction habeas corpus proceeding,

and subsequent appeal in Wills v. Pszczolkowski, No 20-0472, (W. Va.

July 19, 2021), cert. denied (142 S.Ct. 794 (2022)).

b. Mr. Wills was the Petitioner in a 28 U.S. Code § 2254 petition, No. 5:22-cv00005, in the United States District Court for the Northern District of

West Virginia, which was denied and subsequently appealed to the

United States Court of Appeals for the Fourth Circuit, Docket No. 226704, in Wills v. Pszczolkowski, 125 F.4th 534 (4th Cir. 2025).

2. Karen Pszczolkowski.

a. Ms. Pszczolkowski was the Superintendent of Northern Correctional Facility

where Mr. Wills is housed, and was consequently the named

Respondent in Mr. Wills' state post-conviction habeas proceedings

in the Circuit Court of Hampshire County, West Virginia and subsequent

appeal, as set forth above.

b. Ms. Pszczolkowski was the Respondent in Wills v. Pszczolkowski, in the

Northern District of West Virginia and the Fourth Circuit, as set forth

above.

ii

TABLE OF CONTENTS

Questions Presented................................................................................................. i

Parties to the Proceedings Below.............................................................................ii

Table of Contents..................................................................................................... iii

Appendix Table of Contents.................................................................................... iii

Table of Cited Authority...........................................................................................iv

Citations of Opinions and Orders............................................................................ 1

Statement of Jurisdiction......................................................................................... 1

Constitutional and Statutory Provisions Involved in this Case................................1

Statement of the Case...............................................................................................2

Argument Amplifying Reason for Allowance of the Writ....................................... 6

APPENDIX TABLE OF CONTENTS

Document

Page

Opinion of the United States Court of Appeals for the Fourth Circuit, Docket No.

22-6704, Wills v. Pszczolkowski, 125 F.4th 534 (4th Cir. 2025), of January

13, 2025........................................................................................................App. 1

Order relating to Motion to Alter or Amend Judgment of the United States

District Court for the Northern District of West Virginia in Case No.

5:22-cv-00005, of May 26, 2022................................................................. App. 12

Order Granting Motion for Summary Judgment of the United States District

Court for the Northern District of West Virginia in Case No.

5:22-cv-00005, of April 22, 2022.................................................................App. 15

iii

Memorandum Decision of Supreme Court of Appeals of West Virginia in

Wills v. Pszczolkowski, No 20-0472, (W. Va. July 19, 2021)....................... App. 25

State Trial Court order denying post-conviction habeas relief of May 27, 2020.....App. 30

Memorandum Decision of Supreme Court of Appeals of West Virginia in

State v. Wills, No. 16-1199 (W.Va. November 22, 2017)............................ App. 61

TABLE OF CITED AUTHORITY

FEDERAL CASES

Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).... 8, 10, 14

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).. 8, 14

Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).. 6, 7

Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74

L.Ed. 1107 (1930)........................................................................................ 6

Cummins v. Missouri, 4 Wall. 277, 71 U. S. 325 (1867)......................................... 12

Decastro v. Branker, 642 F.3d 442, 449 (4th Cir. 2011).......................................... 11

Descamps v. United States, 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d

438 (2013).................................................................................................... 8

Edwards v. Vannoy, 563 U.S. ___,140 S.Ct. 2737, 206 L.Ed.2d 917 (2021)......... 9

Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912).......... 3

United States v. Lanier, 520 U.S. 259, 266-67, 117 S.Ct. 1219, 137 L.Ed.2d 432

(1997)........................................................................................................... 7, 12

Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L. Ed.2d 569

(2015)........................................................................................................... i, 4, 5, 7, 8, 9

10, 15, 16

Sessions v. Dimaya, 584 U.S. 148, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018)........ i, 4, 5, 8, 9,

10, 12, 15, 16

iv

Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060; 103 L. Ed. 2D 334 (1989)........... 9

United States v. Davis, 588 U.S. 445, 139 S. Ct. 2319, 204 L.Ed.2d 757.............. 4, 7-11, 13, 15

United States v. Jackson, 2022 WL 1160391 (4th Cir. Apr. 20, 2022).................... 15

Weaver v. Graham, 450 U.S. 24 (1981)................................................................... 12

Welch v. United States, 578 U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016).... 9

Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)....11

Wills v. Pszczolkowski, 125 F.4th 534 (4th Cir. 2025)............................................ 1, 6

STATE CASES

State ex rel. Appleby v. Recht, 213 W.Va. 503, 583 S.E.2d 800 (2002)................... 10, 13

State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981)............................................ 3, 4, 9

State v. Housden, 184 W.Va. 171, 399 S.E.2d 882 (1990).......................................10, 13

State v. Hoyle, 242 W. Va. 599, 836 S.E.2d 817 (2019), cert. denied, 140 S. Ct.

2586 (2020).................................................................................................. 2, 4, 9, 11, 12

15

State v. Oxier, 179 W.Va. 431, 369 S.E.2d 866 (1988..............................................13

State v. Wills, No. 16-1199 (W.Va. November 22, 2017).........................................5, 10, 15

Wanstreet v. Bordenkircher, 166 W.Va. 523,276 S.E.2d 205 (1981)........................11, 15

Wills v. Pszczolkowski, No 20-0472, (W. Va. July 19, 2021)................................... 1

STATUTES

18 U.S.C. § 16(b)..................................................................................................... 8, 11, 13

18 U.S.C. § 924(e)................................................................................................... 7, 8, 11, 13,

15, 16

28 U.S.C. § 1254......................................................................................................1

v

28 U.S.C. § 2254......................................................................................................1, 5

Virginia Code §18.2-266..........................................................................................11

W. Va. Code § 17B-4-3(b)....................................................................................... 11

W. Va. Code § 61-3-13(a)........................................................................................ 11

W. Va. Code §61-5-12a............................................................................................ 11

W. Va. Code § 61-10-31........................................................................................... 11

W. Va. Code § 61-11-8............................................................................................. 11

W. Va. Code § 61-11-18........................................................................................... 2, 3, 4

CONSTITUTIONAL PROVISIONS

Article III, Section 5 of the West Virginia Constitution...........................................2, 3

U.S. Const. Amend. V.............................................................................................. 1

U.S. Const. Amend. VI............................................................................................ 8

U.S. Const. Amend. XIV, sec. 1...............................................................................1

vi

PETITION FOR WRIT OF CERTIORARI

The Petitioner, Johnnie Franklin Wills, respectfully requests that this Court issue a Writ

of Certiorari to review the judgment of the United States Court ofAppeals for the Fourth

Circuit, for the reasons stated herein.

CITATIONS OF OPINIONS AND ORDERS

The United States Court of Appeals for the Fourth Circuit issued a signed, published

opinion in Wills v. Pszczolkowski, 125 F.4th 534 (4th Cir. 2025) (included in the Appendix to

this Petition [“App.”] at 1), which is the subject of the instant petition for writ of certiorari.

STATEMENT OF JURISDICTION

The denial of the Petitioner's petition filed under 28 U.S. Code § 2254 was affirmed on

appeal by the Fourth Circuit on January 13, 2025. This Honorable Court has jurisdiction over

final judgments of the United States Courts of Appeal pursuant to 28 U.S.C. § 1254. This

petition was previously submitted, and returned pursuant to Rule 14.5 on April 17, 2025.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED IN THIS CASE

U.S. Const. Amend. V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public danger; nor shall any person

be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty,

or property, without due process of law; nor shall private property be taken for public use,

without just compensation.

U.S. Const. Amend. XIV, sec. 1:

All persons born or naturalized in the United States and subject to the jurisdiction

1

thereof, are citizens of the United States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Syl. Pt. 12, State v. Hoyle, 242 W. Va. 599, 836 S.E.2d 817 (2019), cert. denied, 140

S. Ct. 2586 (2020), which judicially modified a subsequently-amended version of W. Va.

Code § 61-11-18(c) (2016):

For purposes of a life recidivist conviction under West Virginia Code § 61-11-18(c),

two of the three felony convictions considered must have involved either (1) actual violence,

(2) a threat of violence, or (3) substantial impact upon the victim such that harm results.

If

this threshold is not met, a life recidivist conviction is an unconstitutionally disproportionate

punishment under Article III, Section 5 of the West Virginia Constitution.

STATEMENT OF THE CASE

a. Recent legal developments affecting West Virginia's recidivist statute

In order to understand the question presented in this case, it is necessary to consider

several recent developments surrounding West Virginia's recidivist statute. The statute, at the

time of the Petitioner's convictions currently on federal collateral review, created the following

standard:

(a) Except as provided by subsection (b) of this section, when

any person is convicted of an offense and is subject to

confinement in the state correctional facility therefor, and it is

determined, as provided in section nineteen of this article, that

such person had been before convicted in the United States of a

crime punishable by confinement in a penitentiary, the court

shall, if the sentence to be imposed is for a definite term of years,

add five years to the time for which the person is or would be

otherwise sentenced. Whenever in such case the court imposes

an indeterminate sentence, the minimum term shall be twice the

2

term of years otherwise provided for under such sentence.

(b) […]

(c) When it is determined, as provided in section nineteen of this

article, that such person shall have been twice before convicted

in the United States of a crime punishable by confinement in a

penitentiary, the person shall be sentenced to be confined in the

state correctional facility for life.

W. Va. Code § 61-11-18 (2016).

This statute was originally carried over from the laws of Virginia at the time of West

Virginia's statehood, with subsequent amendments being procedural rather than substantive.

The substance of the recidivist statute was upheld by this Court over a century ago in Graham

v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912). However, the Supreme

Court of Appeals of West Virginia eventually recognized a proportionality limitation based on

West Virginia's constitution, and the following principle was applied from 1981 to 2019:

The appropriateness of a life recidivist sentence under our

constitutional proportionality provision found in Article III,

Section 5, will be analyzed as follows: We give initial emphasis

to the nature of the final offense which triggers the recidivist life

sentence, although consideration is also given to the other

underlying convictions. The primary analysis of these offenses is

to determine if they involve actual or threatened violence to the

person since crimes of this nature have traditionally carried the

more serious penalties and therefore justify application of the

statute.

Syl. Pt. 7, State v. Beck, 167 W. Va. 830, 286 S.E.2d 234 (1981).

The West Virginia Supreme Court clarified this standard in 2019:

For purposes of a life recidivist conviction under West Virginia

Code § 61-11-18(c), two of the three felony convictions

considered must have involved either (1) actual violence, (2) a

threat of violence, or (3) substantial impact upon the victim such

that harm results. If this threshold is not met, a life recidivist

conviction is an unconstitutionally disproportionate punishment

under Article III, Section 5 of the West Virginia Constitution.

3

Syl. Pt. 12, State v. Hoyle, 242 W.Va. 599, 836 S.E.2d 817 (2019).

This modification came during the pendency of the Petitioner's state habeas proceeding.

However, the new standard in Hoyle is inclusive of the “actual or threatened violence”

standard in Beck, while modifying it to add “substantial impact upon the victim such that harm

results” and requiring that at least two of the felony convictions meet that standard.

In 2020, presumably in response to this Court's holdings in Dimaya, and United States

v. Davis, 139 S. Ct. 2319 (2019), the West Virginia Legislature modified the recidivist statute

so that it specified the individual crimes that could be a predicate for a life recidivist

enhancement. W. Va. Code §61-11-18(a) (2019). Thus, the applicability of the Hoyle standard

is significantly limited going forward. The new statute is not retroactive and has no bearing on

the instant litigation, except to demonstrate that the universe of cases that would be affected by

any holding on the Hoyle/Beck standards is substantially limited to a small class of persons

already convicted.

b. Relevant Procedural History

In August of 2016, the Petitioner, Johnnie Franklin Wills, was convicted by jury verdict

in West Virginia state court of two felony charges: grand larceny and conspiracy to commit

grand larceny. App., at 61. The State filed a recidivist information pursuant to W. Va. Code §

61-11-18(c) (2016), alleging that the Petitioner had been previously convicted of numerous

felonies: three separate convictions of third offense driving revoked for DUI, third offense

DUI, attempted grand larceny, and two separate convictions of felon in possession of a firearm.

App., at 61-62. The Petitioner admitted that he had been convicted of those crimes, and he

was sentenced to life with the possibility of parole after fifteen years for the recidivized grand

larceny charge, and a concurrent 1-5 year sentence for conspiracy. App., at 62.

4

The Petitioner's recidivist life sentence was affirmed on direct appeal in State v. Wills,

No. 16-1199 (W.Va. November 22, 2017). App., at 61-64. The Petitioner had argued that his

life sentence was constitutionally disproportionate under state constitutional principles, but the

Supreme Court of West Virginia determined that burglary, grand larceny, and DUI are all

crimes that involve a risk of violence, noting that the Petitioner was present while his codefendant burgled the home in his most recent conviction. App., at 63-64.

The Petitioner subsequently filed a petition for post-conviction writ of habeas corpus in

the trial court. He raised a number of grounds; however, the only ground relevant to the

instant matter is whether or not this Court's rulings in Johnson and Dimaya rendered the

application of the recidivist statute to his case unconstitutional. App., at 37-38. The trial court

rejected the Petitioner's grounds for habeas relief, including the one predicated on the

vagueness claim. App., at 30-60. On appeal to the West Virginia Supreme Court, the

Petitioner alleged that the “actual or threatened violence” proportionality test employed by the

Supreme Court of Appeals of West Virginia entailed a “residual clause” of the sort that this

Court determined to be void for vagueness in Johnson and Dimaya. Relief was denied. App.,

at 25-29. A previous certiorari petition at that juncture was unsuccessful. See, 142 S.Ct. 794

(2022).

The Petitioner subsequently filed a Section 2254 petition in the United States District

Court for the Northern District of West Virginia, asserting the same single claim that was

raised on direct appeal, which was denied. App., at 15-24. Following the denial of that

petition, with the granting of the Respondent's motion for summary judgment, the Petitioner

filed a motion to alter or amend the judgment to grant a certificate of appealability, which was

granted. App., at 12-14. The Fourth Circuit appeal commenced, and following oral argument

5

and a nearly two-year delay in deciding the case, the District Court's ruling was affirmed by

published opinion. Wills v. Pszczolkowski, 125 F.4th 534 (4th Cir. 2025). App., at 1-11. It is

from that decision that the Petitioner now seeks this Court's review.

ARGUMENT AMPLIFYING REASON FOR ALLOWANCE OF THE WRIT

Pursuant to Rule 10(c) of the Rules of the Supreme Court of the United States, the

Petitioner asserts that the United States Court of Appeals for the Fourth Circuit has decided an

important question of federal law raised in this petition in a manner which is in conflict with

relevant decisions of this Court. Because the specific question presented in this case is a sui

generis issue arising from the unique landscape of West Virginia on this issue, there is no

plausible split of authority among the states or the Courts of Appeal for this Court to resolve.

This Court has long held that a court cannot do what would be unconstitutional if done

by a legislature. In Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894

(1964), this Court considered a case in which a decision of South Carolina's high court

expanded the scope of a facially narrow (i.e., unambiguous) trespassing statute, on ex post

facto grounds (a fact pattern which, of course, differs from the instant case, but which

implicates similar constitutional principles, as discussed infra). Bouie held that the manner in

which the lower court construed the statute was constitutionally infirm, even if the statute on

its face was acceptable. Discussing different scenarios in which state courts could violate

federal ex post facto standards when construing statutes, this Court quoted Brinkerhoff-Faris

Trust & Sav. Co. v. Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930), stating:

Applicable to either situation is this Court's statement in

Brinkerhoff-Faris, supra, that '(i)f the result above stated were

attained by an exercise of the state's legislative power, the

transgression of the due process clause of the Fourteenth

Amendment would be obvious,' and 'The violation is none the

less clear when that result is accomplished by the state judiciary

6

in the course of construing an otherwise valid...state statute.' Id.,

281 U.S. at 679-680, 50 S.Ct. at 454.

Bouie, 378 U.S. at 355.

Brinkerhoff-Farris continued on to hold that “The federal guaranty of due process

extends to state action through its judicial as well as through its legislative, executive, or

administrative branch of government.” Id., 281 U.S. at 679. This Court has also described

that vagueness claims, such as those at the core of Johnson, Davis, and Dimaya, as discussed

infra, are in the same category of “fair warning” due process protections implicated in the ex

post facto challenge in Bouie. See, U.S. v. Lanier, 520 U.S. 259, 266-67, 117 S.Ct. 1219, 137

LEd.2d 432 (1997). The Petitioner asserts that this Court is well within its power to review the

text of laws written by judges as opposed to legislators.

In 2015, this Court determined that the “residual clause” of the Armed Career Criminal

Act , 18 U.S.C. § 924(e), (“ACCA”) which provided that a person was subject to a minimum

fifteen year penalty if he was a recidivist and convicted of a violent felony that “is burglary,

arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a

serious potential risk of physical injury to another” was unconstitutionally vague and violated

a defendant’s due process rights. Johnson v. United States, 559 U.S. 133 (2015).

In Johnson, this court noted that it had always used the “categorical approach” in

making that determination, that is, it looked at the crime "in terms of how the law defines the

offense and not in terms of how an individual offender might have committed it on a particular

occasion." Id. at 136. (internal citations omitted). This Court held that “[w]e are convinced

that the indeterminacy of the wideranging inquiry required by the residual clause both denies

fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's

sentence under the clause denies due process of law.” Id., at 137.

7

This Court rejected abandoning the categorical approach, because having a judge

determine facts would “[cause] Sixth Amendment concerns that would arise from sentencing

courts’ making findings of fact that properly belong to juries.” Id. at 1215;. See also Apprendi

v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Alleyne v. United States,

570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding collectively that any fact which

increases a statutory maximum penalty or increases a mandatory minimum penalty must be

based upon facts found by a jury and not a sentencing judge).

“Those [Sixth Amendment] concerns… counsel against allowing a sentencing court to

make a disputed determination about what the defendant and state judge must have understood

as the factual basis of the prior plea, or what the jury in a prior trial must have accepted as the

theory of the crime.” Descamps v. United States, 570 U.S. 254, 267, 133 S. Ct. 2276, 186 L.

Ed. 2d 438 (2013) (internal punctuation omitted). Thus, it is impermissible to go behind the

crime of conviction and look at particular facts not necessarily found by the jury in order to

find facts for a larger sentence.

Following Johnson, in Dimaya, this Court considered a similar clause in 18 U.S.C. §

16(b), regarding the classification of crimes that may lead to deportation of legal aliens. The

Dimaya plurality held, “[w]e can as well repeat here what we asked in Johnson: How does one

go about divining the conduct entailed in a crime’s ordinary case? Statistical analyses?

Surveys? Experts? Google? Gut instinct?” Dimaya. 138 S.Ct. at 1225 (internal citations

omitted). The Court thus held that a judicial determination of whether a crime is categorically

violent is a violation of a defendant’s due process rights and such a determination leads to

arbitrary and standardless enforcement. Id.

In Davis, supra, this Court found that another facet of the ACCA, containing a “crime

8

of violence” residual clause similar to what was considered in Johnson and Dimaya, was

unconstitutional for the same reasons advanced in those two previous cases. In doing so, this

Court rejected an argument that would save the statute by permitting judges to examine the

actual facts underlying the previous convictions, while noting that Congress could pass a law

permitting a jury to make such a finding. Davis, 139 S.Ct. at 2327.

The Court has also held that rules regarding vagueness claims are retroactive to cases

arising on collateral habeas corpus review. Welch v. United States, 578 U.S. 120, 136 S.Ct.

1257, 194 L. Ed. 2d 387 (2016) (analyzing the Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060;

103 L. Ed. 2d 334 (1989) rules for retroactivity). Because Welch determined that the Johnson

rule was a new substantive rule, this class of rules survives the abolition of the “watershed”

exception in Edwards v. Vannoy, 563 U.S. ___,140 S.Ct. 2737, 206 L.Ed.2d 917 (2021).

When viewed in light of the this Court's holdings, it is clear that the Fourth Circuit has

erred in upholding the Supreme Court of Appeals of West Virginia's application of the

judicially-authored residual clauses in Beck/Hoyle in precisely the manner prohibited by

Dimaya. The state courts used the categorical approach to decide that the various felonies of

which the Petitioner has been convicted, none of which include an element of violence, are

nevertheless acts that “involve actual or threatened violence.” Consider the following analysis

by the West Virginia court on the Petitioner's direct appeal:

In analyzing petitioner's specific convictions, and looking

first to his triggering offense of grand larceny, we note that while

petitioner was not convicted of burglary, his codefendant pled

guilty to that charge. Petitioner acknowledges that his

codefendant burgled the victim's home while he was at a

different spot on the victim's property and that "a propensity for

violence may have existed." We have previously held that

"burglary and grand larceny [are] crimes that by their very

nature involve[] the threat of harm or violence to innocent

persons[,]" where the defendant burgled a home and took

9

approximately $6,000 in personal property. State v. Housden,

184 W.Va. 171, 175, 399 S.E.2d 882, 886 (1990). Petitioner

admits to being on the victim's property while his codefendant

burgled the victim's home; thus, the potential for harm or

violence, had the property owner returned home, existed. See id.

at 174, 399 S.E.2d at 885 ("The potential for threatened harm or

violence to either the victim, had he returned home at the time

the crime was committed or to another innocent person such as

the victim's son, who testified that he was regularly checking on

the home for his father, still existed at the time the appellant

committed the crime.")

However, even if we ignore the fact that petitioner was

present during the burglary his codefendant was convicted of

committing and accept petitioner's contention that his grand

larceny neither threatened nor actually involved violence, we

have also held that "sole emphasis cannot be placed on the

character of the final felony" and that prior felonies must be

"closely examined." In so doing, we note that petitioner, having

twice been convicted of third offense DUI, has had no less than

six DUI convictions. We have previously stated that "[t]he

dangers inherent in driving on the public streets while under the

influence of an intoxicant are obvious." State ex rel. Appleby v.

Recht, 213 W.Va. 503, 516, 583 S.E.2d 800, 813 (2002) (citation

omitted). "[O]perating an automobile while under the influence

is reckless conduct that places the citizens of this State at great

risk of serious physical harm or death." Id. (internal quotations

and citation omitted). Accordingly, we have had "little trouble in

finding that driving under the influence is a crime of violence

supporting imposition of a recidivist sentence." Id. Thus, given

petitioner's numerous prior crimes, including these crimes of

violence, we find no error in the imposition of a recidivist

sentence.

State v. Wills, at *3-4 (page number and footnote omitted). App., at 63-64.

This is a blend of the sort of post hoc judicial fact-finding prohibited by Alleyne, and

Deschamps, combined with the categorical ordinary-case speculation that is prohibited under

Dimaya and Johnson. The findings about the Petitioner's co-defendant's having committed a

burglary were never within the scope of facts determined by the jury in this case. Yet, even the

burglary itself (a crime of which the Petitioner was never convicted) fails to be reasonably

10

definable by its elements as an act of violence. The court below has engaged in speculation

about the dangerous nature of crimes such as burglary, grand larceny, and driving under the

influence, and used that speculation to justify an increase in the Petitioner's sentence in a

manner that wholly ignores the due process concerns underlying Johnson, Dimaya, and Davis.

It is the Petitioner's' burden to demonstrate the following to obtain relief on his federal

habeas:

“A state court's decision is contrary to clearly established federal

law ‘if the state court arrives at a conclusion opposite to that

reached by th[e Supreme] Court on a question of law’ or

‘confronts facts that are materially indistinguishable from a

relevant Supreme Court precedent and arrives at’ ” an

opposite result. Lewis, 609 F.3d at 300 (alteration in original)

(quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495,

146 L.Ed.2d 389 (2000)). Further, a state court unreasonably

applies federal law when it “ ‘identifies the correct governing

legal rule from th[e] Court's cases but unreasonably applies it

to the facts of the particular ... case,’ ” or “ ‘unreasonably extends

a legal principle from [the Court's] precedent to a new context

where it should not apply or unreasonably refuses to extend that

principle to a new context where it should apply.’ ”

Decastro v. Branker, 642 F.3d 442, 449 (4th Cir. 2011) (citations omitted, emphasis added).

The text of the Wanstreet/Hoyle1 standard authored by the Supreme Court of Appeals of

West Virginia is, for practical purposes, materially indistinguishable from the standard struck

down in Dimaya: “... a substantial risk that physical force against the person or property of

another may be used in the course of committing the offense.” 18 U. S. C. §16(b). As stated

most recently in Syl. Pt. 12 of Hoyle, the relevant West Virginia standard is “(1) actual

violence, (2) a threat of violence, or (3) substantial impact upon the victim such that harm

results.” Although worded differently, both standards require courts to go beyond merely

assessing whether a crime contains an essential element of violence, instead putting courts in

1 Wanstreet v. Bordenkircher, 166 W.Va. 523,276 S.E.2d 205 (1981), State v. Hoyle, 242 W.

Va. 599, 836 S.E.2d 817 (2019).

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the position of imagining scenarios under which a given crime risks a person suffering harm.

To that extent, the case on appeal and Dimaya are materially indistinguishable.

The Petitioner does not contest that the federal statutes in question in Dimaya and the

related cases were authored by Congress, while the Wanstreet/Hoyle standard was authored by

the Supreme Court of Appeals of West Virginia. The Petitioner does not contest that the plain

language of West Virginia's recidivist statute passes constitutional muster. But it is not the

plain language of the recidivist statute that is at issue in this case.

This Court, when considering whether a state law violated the rule against ex post facto

enactments, observed that “[I]t is the effect, not the form, of the law that determines whether it

is ex post facto.” Weaver v. Graham, 450 U.S. 24, 31 (1981). The Weaver Court, in Footnote

15, quoted an earlier case for a similar proposition:

The Constitution deals with substance, not shadows. Its

inhibition was leveled at the thing, not the name. It intended that

the rights of the citizen should be secure against deprivation for

past conduct by legislative enactment, under any form, however

disguised.

Cummins v. Missouri, 4 Wall. 277, 71 U. S. 325 (1867).

An ex post facto challenge, like a vagueness challenge, is fundamentally a complaint

that a defendant has been deprived of notice, or “fair warning.” The core of a due process

complaint predicated on a deprivation of such fair warning is “whether the statute, either

standing alone or as construed, made it reasonably clear at the relevant time that the

defendant's conduct was criminal.” U.S. v. Lanier, 520 U.S. 259, 267 (1997) (emphasis added).

Relying on the trial courts and the state supreme court to determine what crimes

“involve actual or threatened violence” (or the even vaguer “substantial impact” test from

Hoyle) deprives a person of notice of what sorts of crimes will result in the imposition of a life

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sentence, just as the ACCA's residual clause deprived an individual of notice of what would

invoke the mandatory minimum, and just as the residual clause contained in 18 U.S.C. § 16(b)

prevented legal aliens from knowing what sort of conduct could lead to deportation.

It is clear that the Supreme Court of Appeals of West Virginia uses the impermissible

categorical approach in determining whether or not a predicate crime for a recidivist sentence

is one that involves actual or threatened violence. The State Supreme Court has found the

requirement of “actual or threatened violence” satisfied by a number of third-offense predicate

convictions, regardless of the particular facts of the respective cases: burglary (State v.

Housden, 399 S.E.2d 882, 184 W.Va. 171 (1990)); DUI (State ex rel. Appleby v. Recht, 213

W.Va. 503, 583 S.E.2d 800 (2002)); breaking and entering (State v. Oxier, 179 W.Va. 431, 369

S.E.2d 866 (1988), State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980)); jail escape (State v.

Wyne, 460 S.E.2d 450, 194 W.Va. 315 (1995)); and sexual assault (State v. Beck, 286 S.E.2d

234, 167 W.Va. 830 (1981)). It also held that 3rd Offense Domestic Battery satisfies the newer

Hoyle standard (which is inclusive of the Wanstreet standard). State v. Mauller, No. 19-0829

(W. Va., July 30, 2020) (memorandum decision).

These cases do not involve the state courts looking into the nature of the actual crimes

previously committed. In its order granting summary judgment, the District Court reasoned

that Justice Gorsuch's majority opinion in Davis observed that Congress would be permitted to

establish a “case-specific” analysis for statutory sentence enhancement, examining the facts of

each case. Such a rule would be in contrast to the test in the ACCA (18 U.S.C. 924(e)), that

relied on analysis of whether a felony “by its nature, involves a substantial risk that physical

force against the person or property of another may be used in the course of committing the

offense.” The problem with the District Court's reliance on that line of reasoning is that, as

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discussed above, the Supreme Court of Appeals of West Virginia does not employ a “casespecific” examination of the facts. Moreover, for a court to employ the case-specific inquiry

provisionally endorsed in dicta by Justice Gorsuch, could well run afoul of the prohibition on

judicial fact-finding beyond the purview of the issues presented to the jury as set forth in

Apprendi v. New Jersey, 530 U.S. 466 (2000); and Alleyne v. United States, 570 U.S. 99 (2013)

(holding collectively that any fact which increases a statutory maximum penalty or increases a

mandatory minimum penalty must be based upon facts found by a jury and not a sentencing

judge). Certainly such a case-specific analysis is beyond the scope of the factual inquiry for a

jury in a West Virginia recidivist trial. This Court should consider Mr. Wills' appeal in light of

the actual categorical approach employed by the West Virginia courts rather than the inapposite

case-specific approach.

Ironically, in light of the above, in Mr. Wills' own case, the State Supreme Court did

indulge in a degree of “case-specific” inquiry to bootstrap another crime that had previously

been deemed to risk “actual or threatened violence” to the Petitioner's larceny conviction.

Even though his conviction was for larceny,2 the Court went so far as to ascribe responsibility

to Mr. Wills under the recidivist statute for conduct of which he was not even convicted:

In analyzing [P]etitioner’s specific convictions, and looking first

to his triggering offense of grand larceny, we note that while

[P]etitioner was not convicted of burglary, his codefendant pled

guilty to that charge. Petitioner acknowledge that his codefendant

burgled the victim’s home while he was at a different spot on the

victim’s property and that “a propensity for violence may have

existed.” We have previously held that “burglary and grand

larceny [are] crimes that by their very nature involve [ ] the threat

of harm or violence to innocent persons[,]” where the defendant

burgled a home and took approximately $6,000 in personal

property.

2 Larceny had never been deemed to be a standalone crime of “actual or threatened violence”

in the absence of an additional conviction for burglary or breaking and entering by any prior

decision of that Court; see, e.g., Housden, supra; and Oxier, supra.

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Petitioner admits to being on the victim’s property while his

codefendant burgled the victim’s home; thus, the potential for

harm or violence, had the property owner returned home, existed.

Wills I, at *3. Of course, the “potential for harm or violence” is all speculative here, as that

scenario “had the property owner returned home” never came to pass. It is the precise sort of

conjecture disdained by the Dimaya Court. The categorical approach in deciding whether the

violation of a particular statute involves “actual or threatened violence” is clearly implicated

by the holdings of Johnson, Davis, and Dimaya.

It should also be noted that in Davis, the United States Supreme Court did not disturb

the “elements clause” of the ACCA, 18 U. S. C. §924(c)(3)(A), which allows an aggravated

sentence based upon the prior commission of a crime that contains an element of force. The

Supreme Court observed: “As this Court has long understood, the residual clause, read

categorically, 'sweeps more broadly' than the elements clause—potentially reaching offenses,

like burglary, that do not have violence as an element but that arguably create a substantial risk

of violence.” Davis, 139 S. Ct. at 2334.

The District Court, in denying Mr. Wills' motion to amend judgment, cited to the

Fourth Circuit's recent opinion in United States v. Jackson, 2022 WL 1160391 (4th Cir. Apr.

20, 2022), noting the similarities between the language under which Mr. Jackson's conviction

qualified for an enhancement under the ACCA, and the language employed in the

Wanstreet/Hoyle standard. Yet this Court upheld Mr. Jackson's conviction precisely because

the premeditated murder he perpetrated contained an element of “violent force — that is, force

capable of causing physical pain or injury to another person.” Jackson, at *13, quoting

Johnson, 559 U.S. at 140.

None of the felonies for which the Petitioner was previously convicted have any

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element of violence. To the contrary, the Petitioner's felony convictions are for grand larceny,

attempted grand larceny, DUI, driving suspended for DUI, and felon in possession of a

firearm, as described in the recidivist information. App., at 61-62. Not one of these crimes has

an element of force or threatened force. They can only be deemed to involve actual or

threatened violence based on the unconstitutionally conjectural categorical approach. Yet,

under a judicially-crafted rule that would clearly be unconstitutionally vague if it had been

authored by Congress or the Legislature, he continues to languish under a life sentence. To

enhance the Petitioner's sentence based upon “actual” or “threatened” violence, rather than an

actual element of violence, implicates the same vagueness standard that has plagued the

ACCA's residual clause. Because the judicially-crafted rule that was applied to impose a life

sentence upon the Petitioner clearly violates the principles of Johnson and Dimaya, the

Petitioner respectfully requests that this Court grant certiorari, and consider this case fully on

its merits.

Respectfully Submitted,

Petitioner, Johnnie Franklin Wills,

by counsel,

_______________________

Jeremy B. Cooper

Counsel of Record

Blackwater Law PLLC

PO Box 14837

Pittsburgh, PA 15234

(304) 376-0037

jeremy@blackwaterlawpllc.com

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