Childs v. United States of America

Filing 11

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/11/2017. (PSM)

FILED
2017 Oct-11 AM 10:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
CAREY LAMAR CHILDS,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA )
)
Respondent.
)

1:16-cv-8064-LSC
(1:10-cr-226-LSC-TMP)

MEMORANDUM OF OPINION
Petitioner Carey Lamar Childs (“Childs”) has filed with this Court a motion
to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1).
The Government has responded in opposition to the motion. (Doc. 7.) Childs has
replied in support of his motion. (Doc. 10.) For the following reasons, the motion is
due to be denied.
I.

Background
In 2010, Childs was convicted of being a felon in possession of a firearm, a

violation of 18 U.S.C. § 922(g)(1). Because he had three Alabama prior convictions
for violent felonies, he was sentenced to 188 months of imprisonment as an armed
career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
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924(e)(1). Had he not been sentenced under the ACCA, his maximum sentence
would have been 10 years. Childs did not appeal. This is Childs’s first motion filed
pursuant to 28 U.S.C. § 2255.
II.

Discussion
A.

Childs’s claim that his prior convictions should have been
considered as one offense is time barred and without merit in any
event

Childs was sentenced under the ACCA based on his three prior Alabama
convictions for violent felonies: first-degree robbery, first-degree assault, and
second-degree assault. In support of his request for relief, he argues that a “simple
consideration [of] the record in his cases demonstrated that his prior convictions
did not qualify as separate[] offense[s].” Relying upon U.S.S.G. § 4A1.2(a)(2), he
says that the “3 offenses . . . should have been counted as one conviction.”
This claim is time barred. 1 The Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) imposes a one-year statute of limitations for filing a §
2255 motion. 28 U.S.C. § 2255(f). The time begins to run following the latest of
four possible events. Id. At a minimum, however, a convicted defendant has at least
one year from “the date on which the judgment of conviction becomes final.” 28
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In evaluating the timeliness question, this Court must consider each of Childs’s claims
individually. See Zack v. Tucker, 704 F.3d 917, 918 (11th Cir. 2013) (en banc) (holding that, under
§ 2244(d)(1)—the one year limitations period applicable to state court convictions—“the federal
statute of limitations requires a claim-by-claim approach to determine timeliness”).
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U.S.C. § 2255(f)(1). Childs’s conviction became final on December 6, 2010,
fourteen days after the judgment was entered against him. See Murphy v. United
States, 634 F.3d 1303, 1307 (11th Cir. 2011) (“[W]hen a defendant does not appeal
his conviction or sentence, the judgment of conviction becomes final when the time
for seeking that review expires.”). Thus, under § 2255(f)(1), Childs had until
December 6, 2011, to file a motion for collateral relief. He filed his initial motion in
June 2016, more than four years too late. Unless he can establish the existence of
one of the other § 2255(f) triggering events, a claim that his three prior convictions
should have been considered as one is time-barred.
Childs cannot establish the existence of another § 2255(f) triggering event.
In his motion, he cites § 2255(f)(3), which provides that the one-year limitation
period runs from “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). In support of that contention, cites to the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015). Johnson does constitute a right
newly recognized and made retroactive to cases on collateral review by the
Supreme Court. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016). Thus, in
appropriate circumstances, it does serve as a basis to extend the limitations period

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under § 2255(f)(3). Here, however, it does not do so. In Johnson, the Supreme
Court held that the residual-clause portion of the ACCA’s violent-felony definition
is unconstitutionally vague. 135 S. Ct. at 2557. That holding has no relevance to §
4A1.2 of the Sentencing Guidelines—the provision Childs relies upon in making
his claim. See also Beckles v. United States, 137 S. Ct. 886 (2017) (Johnson does not
mean that the residual clause of the Sentencing Guidelines is also
unconstitutionally vague). Thus, Johnson does not permit Childs to bring his
unrelated claim under § 2255(f)(3).
Even assuming there were no applicable procedural hurdles, the claim is
without merit. The fifteen-year mandatory minimum sentence under the ACCA
applies when the convicted defendant has three previous violent felony convictions
“committed on occasions different from one another.” 18 U.S.C. § 922(e)(1). The
presentence report demonstrates that each of Childs’s three prior convictions
meets this requirement. Each arose out of separate circumstances, each involved a
different victim, and each occurred on a different occasion. See Doc. 13 at 11-13 in
United States v. Childs, 1:10-cr-226-LSC-TMP.
B.

Childs’s claim that Johnson invalidated his prior Alabama robbery
conviction is without merit

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Childs additionally argues that his prior robbery conviction qualified as a
violent felony only under the residual clause and, thus, post-Johnson can no longer
serve as a basis to impose a sentence under the ACCA. This claim is without merit.
Alabama robbery is a violent felony post-Johnson because it “has an element
the use, attempted use, or threatened use of physical force against the person of
another.” 18 U.S.C. § 922(e)(2)(B)(i). Under Alabama law, first and second degree
robbery are enhanced versions of third-degree robbery. Third-degree robbery
requires (1) commission of a theft (2) during which the perpetrator (a) “uses force
against the person of the owner or any person present with intent to overcome his
physical resistance or physical power of resistance” or (b) “threatens the imminent
use of force against the person of the owner or any person present with intent to
compel acquiescence to the taking of or escaping with the property.” Ala. Code §
13A-8-43(a). An individual commits first-degree robbery when he or she commits
third-degree robbery and “(1) Is armed with a deadly weapon or dangerous
instrument; or (2) Causes serious physical injury to another.” Ala. Code § 13A-841. Because third-degree robbery qualifies, categorically, as a violent felony under
the “elements clause,” first-degree robbery necessarily does as well.
The Alabama robbery statute is substantially similar to the Florida robbery
statute, and the Eleventh Circuit has found that a conviction under Florida’s

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statute constitutes a “crime of violence” under the Sentencing Guidelines. See
United States v. Lockley, 632 F.3d 1238, 1242-44 (11th Cir. 2011). Florida robbery is
a theft “in the course of [which] there is the use of force, violence, assault, or
putting in fear.” Fla. Stat. § 812.13(1). State jury instructions clarify that force or
threat must “overcome” or prevent the victim’s resistance. Fla. Std. Jury Instr.
(Crim.) 15.1. In Lockley, the court held that the Florida statute fell under the similar
elements clause of U.S.S.G. § 4B1.2. 632 F.3d at 1245. And, it has since reaffirmed
that holding. See United States v. Fritts, 841 F.3d 937, 942-43 (11th Cir. 2016). In
doing so, the court emphasized two aspects of Florida robbery’s force requirement:
the force has to be sufficient to overcome a victim’s resistance, and it has to be
more than would be associated with a mere snatching. Id.
Alabama robbery shares both these features. It requires “such force as is
actually sufficient to overcome the victim’s resistance.” Casher v. State, 469 So. 2d
679, 680 (Ala. Crim. App. 1985) (quoting 77 C.J.S. Robbery § 15 (1952)). And,
“mere snatching is not [Alabama] robbery unless there is some concurrent
intimidation or violence.” Proctor v. State, 391 So. 2d 1092, 1093 (Ala. Crim. App.
1980). It is thus a violent felony under the “elements clause” of the ACCA.
Childs does not appear to question the continued validity of his first and
second-degree assault convictions post-Johnson. Assuming he did so, however, any

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claims related to those convictions would similarly be without merit. This is so
because both of Childs’s assault convictions are also violent felonies under the
elements clause. With regard to second-degree assault in Alabama, it can be
committed in a number of ways, including when:
(a) A person . . .
(1) With intent to cause serious physical injury to another
person, he or she causes serious physical injury to any person;
(2) With intent to cause physical injury to another person, he or
she causes physical injury to any person by means of a deadly
weapon or a dangerous instrument;
(3) He or she recklessly causes serious physical injury to
another person by means of a deadly weapon or a dangerous
instrument; [or]
(4) With intent to prevent a peace officer, as defined in Section
36-21-60, a detention or correctional officer at any municipal or
county jail or state penitentiary, emergency medical personnel,
a utility worker, or a firefighter from performing a lawful duty,
he or she intends to cause physical injury and he or she causes
physical injury to any person. . . .
Ala. Code § 13A-6-21. The statute is divisible permitting consideration under the
modified categorical approach. See Descamps v. United States, 133 S. Ct. 2276, 2289
(2013); United States v. Anderson, 442 F. App’x 537, 539-40 (11th Cir. 2011)
(applying the “modified categorical approach” to Alabama’s second-degree assault

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statute). 2 Application of the modified categorical approach demonstrates that
Childs’s conviction had as an element the intentional use of force. The presentence
report states that, “[a]ccording to the indictment, [Childs] with intent to cause
physical injury to another person, cause[d] physical injury to [a victim], by means
of a deadly weapon or dangerous instrument, to wit: a handgun.” See Doc. 13 at 11
in United States v. Childs, 1:10-cr-226-LSC-TMP; see also Anderson, 442 F. App’x at
539 (stating that “the district court did, and can rely on a description of the
conduct from the PSI Addendum, which included language from the Shepardapproved indictment and to which Anderson did not object”). Thus, the modified
categorical approach reveals that Childs was convicted under Ala. Code § 13A-6-

Courts typically use a “categorical approach” to consider whether a prior offense is an
enhancement-qualifying offense for the ACCA sentencing enhancement. Id. at 2281. The
categorical approach restricts courts to relying on the fact of the prior conviction and the
statutory language upon which the defendant’s conviction rests. Id. However, where the
predicate conviction statute is broader than the enhancement definition and divisible, courts may
use a modified categorical approach. Id. A divisible statute “sets out one or more elements of the
offense in the alternative.” Id. Under the modified categorical approach, courts look to a limited
class of documents, such as the indictment and jury instructions, to determine which alternative
element was the basis of the defendant’s conviction. Id. While the Court’s holding and analysis in
Descamps related to whether a prior conviction qualified as a “violent felony” under the ACCA,
the ACCA’s definition of “violent felony” can be used almost interchangeably with the term
“crime of violence” as used when determining whether a defendant qualifies as a “career
offender” under the Sentencing Guidelines. See United States v. Hall, 714 F.3d 1270, 1272 (11th
Cir. 2013); Spencer v. United States, 727 F.3d 1076, 1100 (11th Cir. 2013) (ordering a resentencing
under § 2255 on defendant’s claim that he was improperly classified as a career offender under
the Guidelines, based on a retroactive application of Begay v. United States, 553 U.S. 137 (2008),
which narrowed the definition of what constitutes a “violent felony” under the ACCA).
2

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21(a)(1), a “conviction requir[ing] force in its physical injury element.” Anderson,
442 F. App’x at 540.
For similar reasons, Childs’s first-degree assault conviction continues to
qualify as well. In Alabama, first-degree assault is committed when:
(a) A person . . .
(1) With intent to cause serious physical injury to another
person, he or she causes serious physical injury to any person by
means of a deadly weapon or a dangerous instrument; or
(2) With intent to disfigure another person seriously and
permanently, or to destroy, amputate, or disable permanently a
member or organ of the body of another person, he or she
causes such an injury to any person; or
(3) Under circumstances manifesting extreme indifference to
the value of human life, he or she recklessly engages in conduct
which creates a grave risk of death to another person, and
thereby causes serious physical injury to any person; or
(4) In the course of and in furtherance of the commission or
attempted commission of arson in the first degree, burglary in
the first or second degree, escape in the first degree, kidnapping
in the first degree, rape in the first degree, robbery in any
degree, sodomy in the first degree, or any other felony clearly
dangerous to human life, or of immediate flight therefrom, he or
she causes a serious physical injury to another person; or
(5) While driving under the influence of alcohol or a controlled
substance or any combination thereof . . . he or she causes
serious physical injury to the person of another with a vehicle or
vessel.

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Ala. Code § 13A-6-20. Like second-degree assault, first-degree assault is also
divisible and thus subject to the modified categorical approach. See Descamps, 133 S.
Ct. at 2289.
Application of the modified categorical approach establishes that Childs’s
conviction had as an element the intentional use of force. With respect to the first
degree assault conviction, the presentence report states that, “[a]ccording to the
indictment, [Childs] with the intent to cause physical injury to another person,
cause[d] physical injury to [the victim], by means of a deadly weapon or dangerous
instrument, to wit: a handgun.” See Doc. 13 at 13 in United States v. Childs, 1:10-cr226-LSC-TMP. Thus, the record establishes that Childs was convicted under Ala.
Code § 13A-6-20(a)(1), a “conviction requir[ing] force in its physical injury
element.” Anderson, 442 F. App’x at 540.
In sum, post-Johnson, Childs continues to qualify as an armed career
criminal under 18 U.S.C. § 924(e)(1).
III.

Conclusion
For the reasons stated above, the § 2255 motion is due to be denied.

Additionally, the Court declines to issue a certificate of appealability. This Court
may issue a certificate of appealability “only if the applicant has a made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

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To make such a showing, a “petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable
and wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues
presented were adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted). Childs’s claim
does not satisfy either standard. Accordingly, insofar as an application for a
certificate of appealability is implicit in Childs’s motion, it is due to be denied.
A separate closing order will be entered.
DONE and ORDERED on October 11, 2017.

_____________________________
L. Scott Coogler
United States District Judge
160704

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