William Joseph Headbird v. United State

Filing

OPINION FILED - THE COURT: James B. Loken, Diana E. Murphy and Steven M. Colloton AUTHORING JUDGE:Steven M. Colloton (PUBLISHED); Denying [4298627-2] motion for remand filed by Ms. Katherine M. Menendez and Appellant William Joseph Headbird. [4368892] [15-1468]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1468
___________________________
William Joseph Headbird,
lllllllllllllllllllllPetitioner - Appellant,
v.
United States of America,
lllllllllllllllllllllRespondent - Appellee.
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: October 19, 2015
Filed: February 19, 2016
____________
Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
____________
COLLOTON, Circuit Judge.
In 2005, a jury convicted William Joseph Headbird of one count of possession
of a firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1).
The district court applied the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), and
sentenced Headbird to 327 months in prison. This court affirmed the judgment on
direct review. United States v. Headbird, 461 F.3d 1074 (8th Cir. 2006). In June

Appellate Case: 15-1468

Page: 1

Date Filed: 02/19/2016 Entry ID: 4368892

2014, Headbird moved to vacate his sentence in light of the Supreme Court’s decision
in Descamps v. United States, 133 S. Ct. 2276 (2013). The district court1 concluded
that Descamps did not create a newly recognized right that applies retroactively to
cases on collateral review and denied Headbird’s motion as untimely under 28 U.S.C.
§ 2255(f). Headbird appeals, and we affirm.
I.
Headbird was convicted in 2005 on one count of possessing a firearm as a
previously convicted felon. The district court found that Headbird had sustained
seven prior “violent felony” convictions for purposes of 18 U.S.C. § 924(e): theft of
a motor vehicle, motor vehicle use without consent, attempted escape from custody,
escape from custody, felony attempted escape, and two convictions for second-degree
assault. Accordingly, the court determined that Headbird was subject to a mandatory
minimum sentence of fifteen years, and a maximum of life imprisonment, under
§ 924(e)(1). After calculating an advisory guideline range of 262 to 327 months’
imprisonment, the court sentenced Headbird at the top of the range.
Headbird moved in 2014 to vacate the sentence, arguing that Descamps showed
that his three prior escape convictions were not violent felonies. He urged that
Descamps established a new substantive rule that applies retroactively to cases on
collateral review. Headbird also asserted that his two prior motor vehicle convictions
were no longer violent felonies in light of Begay v. United States, 553 U.S. 137, 14243 (2008), and United States v. Miller, 305 F. App’x 302, 303 (8th Cir. 2008) (per
curiam). Headbird thus argued that because he had sustained only two prior
convictions for violent felonies, the district court erroneously sentenced him as an
armed career criminal, and that the statutory maximum punishment for his offense

1

The Honorable David S. Doty, United States District Judge for the District of
Minnesota.
-2-

Appellate Case: 15-1468

Page: 2

Date Filed: 02/19/2016 Entry ID: 4368892

was 120 months. See 18 U.S.C. § 924(a)(2). Headbird argued that his motion was
timely, because it was filed within one year after the Supreme Court in Descamps
recognized a new right that has been made retroactively applicable to cases on
collateral review. See 28 U.S.C. § 2255(f)(3).
The district court denied the motion, concluding that Descamps did not
establish a new rule that applied retroactively. Therefore, the limitations period for
filing a § 2255 motion expired one year after the judgment of conviction became
final, and the district court dismissed the motion as untimely. See id. § 2255(f)(1).
The district court issued a certificate of appealability.
II.
There is a one-year limitations period for a motion to vacate a sentence filed
under 28 U.S.C. § 2255. The period typically runs from the date on which the
judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). The limitations
period starts later, however, when the movant asserts a right that “has been newly
recognized by the Supreme Court and made retroactively applicable to cases on
collateral review.” Id. § 2255(f)(3). In that situation, the one-year limitations period
runs from “the date on which the right asserted was initially recognized by the
Supreme Court.” Id.
The parties in this case agree that to determine whether a right “has been newly
recognized by the Supreme Court,” we must inquire whether the Supreme Court
announced a “new rule” within the meaning of the Court’s jurisprudence governing
retroactivity for cases on collateral review. See Teague v. Lane, 489 U.S. 288, 301
(1989). We see no reason to dispute the joint position of the parties. Although
§ 2255(f)(3) does not use the term “new rule,” the statute refers to a “newly
recognized” right that has been made retroactive. The statute was enacted against the
backdrop of existing judicial precedent in which the Court addressed the retroactivity
-3-

Appellate Case: 15-1468

Page: 3

Date Filed: 02/19/2016 Entry ID: 4368892

of “new rules.” Although the terminology used in § 2255(f)(3) is slightly different,
it seems unlikely that Congress meant to trigger the development of a new body of
law that distinguishes rights that are “newly recognized” from rights that are
recognized in “new rule” under established retroactivity jurisprudence. We therefore
accept the position of the parties, consistent with the decisions of other courts of
appeals that have equated the two inquires. See Butterworth v. United States, 775
F.3d 459, 464-65 (1st Cir. 2015); United States v. Mathur, 685 F.3d 396, 398-99 (4th
Cir. 2012); Figuereo-Sanchez v. United States, 678 F.3d 1203, 1207 (11th Cir. 2012).
A “new rule” is one that “breaks new ground or imposes a new obligation on
the States or the Federal Government.” Teague, 489 U.S. at 301. Stated differently,
“a case announces a new rule if the result was not dictated by precedent existing at
the time the defendant’s conviction became final.” Id. A rule is not dictated by
existing precedent “unless it would have been ‘apparent to all reasonable jurists.’”
Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (quoting Lambrix v.
Singletary, 520 U.S. 518, 528 (1997)). But rules that apply a general principle to a
new set of facts typically do not constitute new rules. Id.; Wright v. West, 505 U.S.
277, 309 (1992) (Kennedy, J., concurring in the judgment).
The Armed Career Criminal Act establishes a mandatory minimum prison
sentence of fifteen years for defendants convicted of possessing a firearm as a
previously convicted felon if they have three prior convictions for “a violent felony.”
18 U.S.C. § 924(e)(1). The Act defines “violent felony” as “any crime punishable by
imprisonment for a term 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, [or] involves the use of explosives.”2 Id.
2

The definition of “violent felony” also includes felonies that “otherwise
involve[ ] conduct that presents a serious potential risk of physical injury to another,”
18 U.S.C. § 924(e)(2)(B)(ii), but the Supreme Court held this residual clause
unconstitutional in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015).
-4-

Appellate Case: 15-1468

Page: 4

Date Filed: 02/19/2016 Entry ID: 4368892

§ 924(e)(2)(B). To determine whether a past conviction qualifies as a violent felony,
courts use a categorical approach that looks to the fact of conviction and the statutory
elements of the prior offense. Taylor v. United States, 495 U.S. 575, 602 (1990). In
cases where a statute describes alternate ways of committing a crime—only some of
which satisfy the definition of a violent felony—courts may use a modified
categorical approach and examine a limited set of documents to determine whether
a defendant was necessarily convicted of a violent felony. Id.; Shepard v. United
States, 544 U.S. 13, 20-21 (2005). These materials include charging documents, jury
instructions, plea agreements, transcripts of plea colloquies, or “some comparable
judicial record.” Shepard, 544 U.S. at 26; see also Taylor, 495 U.S. at 602.
In Descamps, the Supreme Court addressed whether courts could consider
these judicial records when examining convictions under an indivisible statute that
“criminalizes a broader swath of conduct” than necessary to establish a violent felony.
Descamps, 133 S. Ct. at 2281. In Descamps, the defendant had sustained a prior
conviction for burglary under a state statute that did not require the perpetrator’s entry
to be unlawful. Id. at 2282. The statute thus prohibited a broader range of conduct
than the generic definition of burglary, which encompasses “unlawful or unprivileged
entry into, or remaining in, a building or structure, with intent to commit a crime.”
Id. at 2283 (emphasis added) (quoting Taylor, 495 U.S. at 599).
The Court explained that Taylor and Shepard both addressed divisible
statutes—statutes with multiple elements set out in the alternative—and held that the
modified categorical approach may be used to determine which elements formed the
basis of a defendant’s prior conviction. Id. at 2285 & n.2. Once the elements
underlying the crime of conviction are ascertained, the categorical approach is used
to determine whether the crime is a violent felony. Id.
Descamps held, however, that the modified categorical approach does not
apply to indivisible statutes, because such statutes do not require a choice between
-5-

Appellate Case: 15-1468

Page: 5

Date Filed: 02/19/2016 Entry ID: 4368892

alternatives. Rather, the indivisible statute in Descamps posed “a simple discrepancy
between generic burglary and the crime established [under California law].” Id. The
elements of the defendant’s prior conviction for burglary were known. Because those
elements did not correspond to the generic definition of burglary, “the inquiry [was]
over,” and the offense was not a “violent felony.” Id. at 2286.
Headbird urges us to conclude that Descamps established a new rule requiring
that courts apply the categorical approach in determining whether convictions under
indivisible statutes are violent felonies. He argues that Descamps addressed “a novel
question about when to apply the modified categorical approach.” Descamps
reasoned, however, that prior “caselaw explaining the categorical approach and its
‘modified’ counterpart all but resolves this case.” Id. at 2283. The Court further
observed that limiting application of the modified categorical approach to divisible
statutes was “the only way we have ever allowed” courts to use the approach. Id. at
2285. Rather than establish a new rule for analyzing indivisible statutes, Descamps
simply reaffirmed that “[t]he modified approach does not authorize a sentencing court
to substitute . . . a facts-based inquiry for an elements-based one.” Id. at 2293. The
Court thus applied existing general principles governing the categorical and modified
categorical approaches to indivisible statutes.
Headbird points to Justice Alito’s dissent and a prior conflict in the circuits as
evidence that Descamps established a new rule. Neither the fact of a dissent nor the
existence of conflicting authority, however, determines whether a decision establishes
a new rule. See Beard v. Banks, 542 U.S. 406, 416 n.5 (2004); West, 505 U.S. at 304
(O’Connor, J., concurring in the judgment); Stringer v. Black, 503 U.S. 222, 237
(1992). We must rely principally on the rationale articulated by the Court in its
decision. Here, the Court’s opinion explained that the case was “all but” resolved by
prior decisions. 133 S. Ct. at 2283. We agree with other circuits that the decision in
Descamps was dictated by the general principles set forth in existing precedent and
did not establish a new rule. See, e.g., King v. United States, 610 F. App’x 825, 828-6-

Appellate Case: 15-1468

Page: 6

Date Filed: 02/19/2016 Entry ID: 4368892

29 (11th Cir. 2015) (per curiam); Ezell v. United States, 778 F.3d 762, 766 (9th Cir.
2015); United States v. Montes, 570 F. App’x 830, 831 (10th Cir. 2014); cf. Smith
v. Warden Lewisburg USP, 614 F. App’x 52, 54-55 (3d Cir. 2015) (per curiam);
United States v. Davis, 751 F.3d 769, 775 (6th Cir. 2014). Accordingly, Headbird’s
motion does not rely on a right that was “newly recognized” by the Supreme Court
in Descamps, and the district court correctly dismissed Headbird’s motion as untimely
based on the limitations period of § 2255(f)(1).
In his reply brief, Headbird argues for the first time that his case should be
remanded for factfinding and reconsideration of his sentence in light of the Supreme
Court’s holding in Johnson v. United States, 135 S. Ct. 2551 (2015), that the residual
clause of § 924(e)(2)(B)(ii) is unconstitutionally vague. This issue is not included in
the certificate of appealability, and while we have authority to expand the certificate,
we generally decline to address arguments that were not presented to the district court
or raised in a party’s opening brief. See United States v. Nelson, 109 F.3d 1323, 1325
(8th Cir. 1997). We therefore deny the motion to remand based on Johnson.
Headbird remains free to seek authorization to file a second or successive motion to
vacate his sentence under 28 U.S.C. § 2255(h)(2) based on Johnson. See Woods v.
United States, 805 F.3d 1152, 1154 (8th Cir. 2015) (per curiam).
*

*

*

For these reasons, we affirm the district court’s dismissal of Headbird’s motion
to vacate his sentence and deny his motion to remand in light of Johnson.
______________________________

-7-

Appellate Case: 15-1468

Page: 7

Date Filed: 02/19/2016 Entry ID: 4368892