Opinion
CIV. 16-5052 CR 03-50003
09-08-2016
STACY WINTERS, Movant, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER DENYING MOTION
Stacy Winters has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) The United States responded with a Motion to Dismiss. (Doc. 11.) For the following reasons, the Motion to Vacate will be denied.
BACKGROUND
Winters pled guilty to voluntary manslaughter in violation of 18 U.S.C. §§ 1112 and 1153 (count 1), and use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (count 2). On November 1, 2004, Winters was sentenced to consecutive sentences of 120 months on each count. In his § 2255 motion filed on June 15, 2016, Winters claims that his conviction on count 2 for use of a firearm during a crime of violence is invalid in light of Johnson v. United States, 135 S. Ct. 2551 (2015).
DISCUSSION
In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 135 S.Ct. at 2557-58. The ACCA, 18 U.S.C. § 924(e), defines the term "violent felony" as any crime punishable by a term of imprisonment exceeding one year 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). The first prong of this definition is sometimes referred to as the "elements clause," while the second prong contains the "enumerated crimes" and, finally, what is commonly called the "residual clause" (the "ACCA residual clause"). The ACCA residual clause covers "conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court in Johnson made clear that its holding that the ACCA residual clause is void did not invalidate the elements clause or the enumerated crimes. 135 S. Ct. at 2563.
Post-Johnson, federal prisoners who were sentenced in reliance on the ACCA's now-void residual clause in 18 U.S.C. § 924(e) are entitled to file a § 2255 motion in district court because Johnson announced a new rule of constitutional law made retroactively applicable to ACCA cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1264-65 (2016).
Winters, however, was not sentenced under the ACCA found in 18 U.S.C. § 924(e). Rather, as explained above, Winters was sentenced for the use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Section 924(c) provides, in relevant part:
[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -18 U.S.C. § 924(c)(1)(A). Under § 924(c), "crime of violence" is defined as an offense that is a felony and:
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years....
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or18 U.S.C. §§ 924(c)(3)(A) and (B). The clause in subsection A is referred to herein as the "elements" clause. The government does not argue that Winters' conviction for voluntary manslaughter is a crime of violence within the meaning of the elements clause in § 924(c)(3)(A). The latter clause in subsection B, referred to as the "§ 924(c) residual clause," contains language that is similar, but not identical, to the language of the ACCA residual clause invalidated by the Supreme Court in Johnson.
(B) that 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.
Winters cites a number of district court cases holding the § 924(c) residual clause void for vagueness in light of Johnson, and he also cites appellate court opinions authorizing successive § 2255 motions in § 924(c) cases, finding that the movant made a prima facie showing that Johnson invalidated the § 924(c) residual clause. (Doc. 13 at 9-10.) But see United States v. Taylor, 814 F.3d 340, 379 (6th Cir. 2016) (holding that 18 U.S.C. § 924(c)(3)(B) is not unconstitutionally vague); In re Fields, No. 16-50521, 2016 WL 3383460 (5th Cir. June 17, 2016) (refusing to authorize successive § 2255 based on argument that Johnson applies to § 924(c)(3)(B) residual clause).
The Sixth, Seventh and Ninth Circuits have held that identically worded language in 18 U.S.C. § 16(b) is unconstitutionally vague. See Shuti v. Lynch, 2016 WL 3632539 (6th Cir. July 7, 2016); United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015). A panel of the Fifth Circuit also held that Johnson renders § 16(b) unconstitutionally vague. See United States v. Gonzalez-Longoria, 813 F.3d 225 (5th Cir. 2016), reh'g en banc ordered, 815 F.3d 189 (5th Cir. 2016). On rehearing en banc, the Fifth Circuit reversed, holding that § 16(b) is not unconstitutionally vague. See United States v. Gonzalez-Longoria, No. 15-40041, 2016 WL 4169127 (5th Cir. Aug. 5, 2016) (en banc).
After Winters filed this § 2255 motion, the Eighth Circuit held that Johnson does not apply to the residual clause of 18 U.S.C. § 924(c). See United States v. Prickett, No. 15-3486, 2016 WL 4010515 (8th Cir. July 27, 2016). In light of Prickett, the government moved to dismiss Winters' § 2255. Although Winters recognizes this authority, he nevertheless maintains his request that this Court strike down the § 924(c) residual clause as unconstitutionally vague under Johnson and vacate his § 924(c) conviction.
Without citing any authority, Winters asserts that his predicate offense for voluntary manslaughter in violation of 18 U.S.C. §§ 1112 and 1153 does not meet the requirement for a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A). The government does not argue otherwise. If the predicate crime is not a crime of violence under the elements clause, in the absence of the § 924(c) residual clause there would not be an underlying violent crime to sustain the § 924(c) conviction for use of a firearm during and in relation to a crime of violence.
This Court is bound by Eighth Circuit precedent. See N.M. ex rel L.R. v. Special Sch. Dist. No. 1, 512 F.3d 455, 459 (8th Cir. 2008) (holding that Eighth Circuit precedent "is controlling until overruled by our court en banc, by the Supreme Court, or by Congress."). In Prickett, the Eighth Circuit refused to apply Johnson to § 924(c). Applying Eighth Circuit law as it stands now, the Court must find that Winters' challenge to § 924(c)(3)(B) as unconstitutionally vague under Johnson fails.
Winters points out that the government has asked for an extension of time to file a petition for rehearing in Prickett. In that motion the government still maintains that the § 924(c) residual clause is not unconstitutionally vague under Johnson. The motion for rehearing presumably will be based on tension between the Prickett panel's method for determining if a crime is one of violence and the method used by the Eighth Circuit in previous opinions. The tension relates to whether the categorical approach applies when classifying a crime of violence under § 924(c)(3)(B). --------
Finally, Winters requests a certificate of appealability in order to seek review of this Order and to specifically call for reversal of Prickett. A habeas petitioner may not appeal a final order in a proceeding under 28 U.S.C. § 2255 without first securing a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A district court cannot grant a certificate of appealability unless the movant "has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2); accord Williams v. United States, 452 F.3d 1009, 1014 (8th Cir. 2006). A certificate of appealability will not be granted simply because an appeal is pursued in good faith and raises a non-frivolous issue. See Kramer v. Kemna, 21 F.3d 305, 307 (8th Cir. 1994) ("Good faith and lack of frivolousness, without more, do not serve as a sufficient bases for issuance of a certificate under 28 U.S.C. § 2253."). Rather, the movant must satisfy a higher standard; he must show that the issues to be raised on appeal are "debatable among reasonable jurists," that different courts "could resolve the issues differently," or that the issues otherwise "deserve further proceedings." Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); accord Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994).
The Court concludes that a certificate of appealability is appropriate here even under this high standard because the cases demonstrate that Winters' claim that the rule announced in Johnson invalidates § 924(c)(3)(B) is "debatable among reasonable jurists." Cox, 133 F.3d at 568. He has cited a number of district court cases applying Johnson to § 924(c)(3)(B) and finding it unconstitutionally vague. And though the Sixth Circuit has held that § 924(c)(3)(B) is not unconstitutionally vague, see Taylor, 814 F.3d at 379, the Sixth, Seventh and Ninth Circuits have held that the identically worded language in 18U.S.C. § 16(b) is unconstitutionally vague. See Shuti, 2016 WL 3632539, at *9; Vivas-Ceja, 808 F.3d at 723; Dimaya, 803 F.3d at 1120. Moreover, a number of appellate courts have granted movants permission to file a successive § 2255 motion based on the argument that Johnson applies to § 924(c)(3)(B). In addition, under both § 924(c) and § 924(e) (the ACCA), most circuit courts use the categorical approach to decide whether an offense is a "crime of violence," and that appeared to be the approach in the Eighth Circuit prior to the Prickett decision. Because of the tension between Eighth Circuit precedent using the categorical approach to classify a crime of violence and the Prickett decision indicating the categorical approach does not apply under § 924(c)(3)(B), the government has asked for an extension of time to file a petition for rehearing in Prickett, and the appellant in Prickett already has filed a petition for rehearing en banc. Due to the generally unsettled nature of the law on whether the rule announced in Johnson invalidates the residual clause of § 924(c), and the possibility that the United States Supreme Court someday might resolve the circuit splits that are developing in this area of the law, Winters is entitled to a certificate of appealability in this case. Accordingly,
IT IS ORDERED:
(1) That Stacy Winters' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (doc. 1) is denied;
(2) That a certificate of appealability is granted to Stacy Winters on the issue whether the rule in Johnson v. United States, 135 S. Ct. 2551 (2015), applies to the residual clause of 18 U.S.C. § 924(c) such that Winters' § 924(c) conviction should be vacated; and
(3) That the United States of America's Motion to Dismiss, doc. 11, is denied as moot.
Dated this 8th day of September, 2016.
BY THE COURT:
/s/_________
Lawrence L. Piersol
United States District Judge ATTEST:
JOSEPH HAAS, CLERK BY:/s/_________
DEPUTY