Williams v. USA - 2255
Filing
2
MEMORANDUM OPINION (c/m to Petitioner Marco A. Williams 11/27/17 sat). Signed by Judge Deborah K. Chasanow on 11/27/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARCO A. WILLIAMS
:
v.
:
Civil Action No. DKC 15-0606
Criminal No. DKC 10-0109
:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution are the motion
to
vacate
under
28
U.S.C.
§
2255
filed
by
Petitioner
Marco
Williams (“Petitioner”), (ECF No. 109), and the motion for leave
to file a surreply filed by Respondent United States of America
(“Respondent”).
briefed,
and
necessary.
(ECF No. 136).
the
court
now
The issues have been fully
rules,
Local Rule 105.6.
no
hearing
being
deemed
For the following reasons, the
motion to vacate will be denied and the motion for leave to file
a surreply will be granted.
I.
Background
On February 25, 2013, Petitioner pled guilty to two counts
of being a felon in possession of a firearm in violation of 18
U.S.C.
§
922(g)(1).
convictions
for
Because
attempted
Petitioner
second
degree
had
prior
murder,
Maryland
assault
with
intent to maim, and distribution of cocaine, he was sentenced to
216 months imprisonment as an armed career criminal under 18
U.S.C. § 924(e).
On March 3, 2015, Petitioner filed a motion to vacate under
28 U.S.C. § 2255.
(ECF No. 109).
does
statutory
not
criminal
intent
meet
the
because
to
his
maim
and
definition
Maryland
for
convictions
attempted
an
for
second-degree
armed
career
assault
murder
are
with
not
(ECF No. 124, at 1-2).1
violent felonies.
II.
Petitioner argues that he
Surreply
Local
Rule
105.2(a)
states
that,
“[u]nless
otherwise
ordered by the Court, surreply memoranda are not permitted to be
filed.”
The court may permit a surreply when a party would not
otherwise have an opportunity to respond to arguments raised for
the first time in the opposing party’s reply.
See Khoury v.
Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003).
In
his
reply
interpretation
response brief.
of
brief,
a
case
Petitioner
that
provided
Respondent
a
discussed
different
in
its
As the surreply addresses the new legal theory
identified for the first time in the reply brief, it will be
accepted.
1
Petitioner filed his petition on March 3, 2015, arguing
that he was entitled to be resentenced pursuant to Descamps v.
United States, 133 S.Ct. 2276 (2013).
On June 26, 2015, the
Supreme Court decided United States v. Johnson, 135 S.Ct. 2551
(2015).
Petitioner amended his motion to reflect the new rule
of law identified in Johnson. (ECF No. 117).
2
III. Procedural Default
Respondent argues that the petition is procedurally barred
because Petitioner did not raise the argument on direct appeal.
(ECF No. 134, at 2-3).
Although Petitioner concedes not raising
the argument on direct appeal, Petitioner claims the failure to
raise the argument can be excused because of the new rule of law
announced in Johnson v. United States, 135 S.Ct. 2251 (2015).
(ECF No. 135, at 12-13).
For habeas petitions, the general rule is that “claims not
raised
on
direct
review[.]”
appeal
may
not
be
raised
on
collateral
Massaro v. United States, 538 U.S. 500, 504 (2003).
“The Supreme Court [of the United States] has recognized an
equitable exception to the bar, however, when a habeas applicant
can
demonstrate
cause
and
prejudice[.]”
United
Pettiford, 612 F.3d 270, 280 (4th Cir. 2010).
cause,
the
petitioner
must
show
a
reason
for
States
v.
To demonstrate
a
procedural
default based “on something external to the defense, such as the
novelty of the claim or a denial of effective assistance of
counsel.”
Cir.
United States v. Mikalajunas, 186 F.3d 490, 493 (4th
1999).
The
petitioner
must
also
demonstrate
that
suffers “actual prejudice” if his claim is not reviewed.
v.
Lee,
319
F.3d
162,
169
(4th
Cir.
2003).
The
he
Brown
cause
and
prejudice exception to procedural default is designed “to induce
litigants to present their contentions to the right tribunal at
3
the right time.”
Massaro, 538 U.S. at 504 (quoting Guinan v.
United States, 6 F.3d 468, 474 (7th Cir. 1993)(Easterbrook, J.,
concurring)).
Petitioner was sentenced as an armed career criminal in
2013.
The Armed Career Criminal Act (“ACCA”) provides that a
person
convicted
under
18
U.S.C.
§
922(g)
who
has:
“three
previous convictions . . . for a violent felony or a serious
drug
offense
imprisoned
.
not
.
.
less
shall
than
924(e)(1)(emphasis added).
be
fined
fifteen
under
years[.]”
this
title
18
U.S.C.
and
§
In turn,
“[V]iolent
felony”
means
punishable
by
imprisonment
exceeding one year . . . that—
any
crime
for
a
term
(i)
has
as
an
element
the
use,
attempted use, or threatened use of
physical force against the person of
another (“Force Clause”); or
(ii) is burglary, arson, or extortion,
involves
use
of
explosives,
(“Enumerated
Crimes
Clause”)
or
otherwise
involves
conduct
that
presents a serious potential risk of
physical injury to another (“Residual
Clause”).
18 U.S.C. § 924(e)(1)(B).
Despite having declined to do so only
four years earlier, in 2015, the United States Supreme Court
held the residual clause unconstitutionally vague.
United States, 135 S.Ct. 2551, 2556-58 (2015).
Johnson v.
The decision in
Johnson “was not dictated by precedent existing at the time.”
4
Welch
v.
United
States,
136
S.Ct.
1257,
1264
(2016)(quoting
Teague v. Lane, 489 U.S. 288, 301 (1989)).
Prior to Johnson, to be a violent, non-enumerated felony,
the identified crime only had to have a likelihood of harm.
James v. United States, 550 U.S. 192, 209 (2007), overruled by
Johnson
v.
United
924(e)(2)(B)(ii)’s
‘potential
States,
residual
risk.’
concepts.”).
135
provision
These
Post-Johnson,
S.Ct.
are
to
be
2551
(2015)(“[Section]
speaks
in
inherently
a
violent,
terms
of
a
probabilistic
non-enumerated
felony, the “minimum conduct necessary for a violation of the
state statute” must “necessarily require[] the use, attempted
use or threatened use of ‘physical force[.]’”
United States v.
Gardner, 823 F.3d 793, 803 (4th Cir. 2016).
Petitioner’s argument is that the minimum conduct necessary
to
sustain
the
prior
Maryland
convictions
for
assault
with
intent to maim and second-degree attempted murder do not satisfy
the force clause.
(ECF No. 124, at 4-5).
This argument “was
not reasonably available to counsel” at the time of sentencing
because
both
offenses
contained
a
probability
thus, satisfied the residual clause.
of
harm,
and,
McCarver v. Lee, 221 F.3d
583, 591 (4th Cir. 2000); see Sykes v. United States, 564 U.S. 1
(2011), overruled by Johnson v. United States, 135 S.Ct. 2551
(2015)(finding
intentional
vehicular
flight
satisfied
the
residual clause because the ordinary violation of the law would
5
create a risk of injury).
Because Petitioner advances a novel
argument made possible by a change in the law, Petitioner has
demonstrated cause for not raising the claim on direct appeal.
See Mikalajunas, 186 F.3d at 493.
Petitioner
has
also
demonstrated
prejudice.
Petitioner’s
sentence is longer because the two prior offenses were counted
as violent felonies.
In short, because Petitioner’s argument
became viable due to the Supreme Court’s decision in Johnson,
Petitioner has demonstrated cause for not raising the argument
earlier
and
prejudice
if
the
argument
is
not
considered.
Therefore, the petition is not procedurally-barred.
See, e.g.,
United States v. O’Shea, No. 02-10285-MLW, 2017 WL 2701751, at
*3-5 (D.Mass. June 22, 2017)(finding the failure to raise on
direct review an argument that an offense failed to satisfy the
ACCA’s
force
clause
excused
because
of
the
Supreme
Court’s
decision in Johnson); United States v. Hodges, 251 F.Supp.3d
1026, 1032 (W.D.Va. 2017)(same); United States v. Wilson, 249
F.Supp.3d 305, 315 (D.D.C. 2017)(same); Carpio v. United States,
218 F.Supp.3d 1182, 1194-95 (W.D.Wash. 2016)(same).
IV.
ACCA Enhancements
Under the ACCA, to determine whether a prior conviction
satisfies the definition of “violent felony,” courts “utilize
the categorical approach, which focuses solely on the elements
of the offense, rather than on the facts of the case.”
6
United
States v. McNeal, 818 F.3d 141, 152 (4th Cir. 2016).
Courts
first determine the elements of the offense, and then, for the
force
clause,
includes
force
“use,
against
determine
whether
attempted
use,
the
person
or
of
an
element
of
the
threatened
use
of
another.”
18
offense
physical
U.S.C.
§
924(e)(2)(B)(i); see United States v. Winston, 850 F.3d 677,
683-85 (4th Cir. 2017)(finding Virginia’s common law robbery did
not categorically satisfy the ACCA’s force clause).
Petitioner contends that although the prior convictions for
assault with intent to maim and second-degree attempted murder
may have a violent ends, the offenses do not, in all their
applications, require the use of force as a means to accomplish
that
ends,
felonies.
and,
therefore
are
(ECF No. 124, at 5).
not
categorically
violent
Respondent responds that to
accomplish such an end, force must be employed, and, thus, the
prior convictions are violent felonies.
(ECF No. 134, at 8-10).
Petitioner’s argument relies on the decision of the United
States Court of Appeals for the Fourth Circuit in United States
v. Torres-Miguel, 701 F.3d 165 (4th
Cir. 2012).
In
Torres-
Miguel, the Fourth Circuit found that an offense which had as an
element “resulting in death or great bodily injury,” Cal.Penal
Code § 422(a), did not categorically require the use of physical
force because an offense “may result in death or serious injury
without involving use of physical force.”
7
Torres-Miguel, 701
F.3d
at
168
(emphasis
in
the
original).
However,
this
distinction “between indirect and direct application of force .
. . no longer remains valid,” In re Irby, 858 F.3d 231, 238 (4th
Cir. 2017) because, in United States v. Castleman, the Supreme
Court of the United States made explicit that it did not matter
whether an injury resulted from direct or indirect means, so
long as an offender caused a violent result, the force used was
categorically violent.
States
v.
134 S.Ct. 1405, 1415 (2014); see United
Burns-Johnson,
864
F.3d
313,
(4th
318
Cir.
2017)(“Castleman abrogates our statement in Torres-Miguel that
the use of poison would not constitute the use of force[.]”);
United States v. Reid, 861 F.3d 523, 529 (4th Cir. 2017)(“While
the
holding
Supreme
of
Court’s
Torres-Miguel
decision
in
may
still
Castleman,
stand
its
following
reasoning
the
can
no
longer support an argument that the phrase ‘use of physical
force’ excludes indirect applications.”)
Nevertheless, Petitioner argues that the subsequent cases
declaring Torres—Miguel abrogated only did so in dicta.
No. 135, at 6-10).
This is incorrect and irrelevant.
(ECF
In In re
Irby, the Fourth Circuit was faced with a request to file a
successive habeas petition.
degree
retaliatory
violence.
Circuit
To
murder
deny
the
necessarily
had
The petitioner argued that secondwas
not
petition
to
categorically
in
conclude
8
In
re
that
Irby,
the
a
crime
the
of
Fourth
petitioner’s
argument lacked merit.
To reach this conclusion, the court
found
no
that
even
though
means
were
specified,
the
ends
specified — the unlawful killing of another — required the use
of physical force.
This contradicted Torres-Miguel’s holding
that only crimes where the means were identified as physical
force could satisfy a requirement that a prior offense have as
an element the use of physical force.
234-38.
Moreover,
even
if
the
In re Irby, 858 F.3d at
three
subsequent
decisions
declaring Torres-Miguel no longer viable only did so in dicta,
the
cases
proposition
court
would
that
would
still
be
Castleman
still
be
persuasive
abrogated
bound
to
authority
for
the
Torres-Miguel,
and
this
follow
the
Supreme
Court’s
decision in Castleman.
Thus, to qualify as a violent felony pursuant to the ACCA’s
force clause, an offense must have as an element the use of
“violent force — that is, force capable of causing physical pain
or injury to another person.”
559
U.S.
offense
133,
140
includes
as
(2010).
an
Curtis Johnson v. United States,
The
element
determination
“violent
of
force”
whether
an
requires
an
examination of the amount of harm caused by an offense and not
the method or manner of creating that harm.
F.3d at 238.
See In re Irby, 858
A force capable of causing serious harm is a
violent force, regardless of whether it is done through indirect
means such as “employing poison” or through direct means “as
9
with a kick or punch[.]”
Castleman, 134 S.Ct. at 1415 (2014);
see In re Irby, 858 F.3d at 238.
In making this inquiry, courts
“must focus on the ‘minimum conduct criminalized’ by state law,
including any conduct giving rise to a ‘realistic probability,
not a theoretical possibility’ that a state would apply and
uphold a conviction based on such conduct.”
Winston, 850 F.3d
at 684 (quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)).
A.
Attempted Second Degree Murder
Under Maryland law, to be convicted of attempted seconddegree murder, a person must “harbor[] a specific intent to kill
the victim and [have] taken a substantial step toward killing
the victim.”
Harrison v. State, 382 Md. 477, 489 (2004).
In In
re Irby, the Fourth Circuit faced the question of whether a
conviction for second-degree retaliatory murder under federal
law, 18 U.S.C. § 1111(b), was categorically a crime of violence
pursuant to 18 U.S.C. § 924(c).
There, an element of second-
degree retaliatory murder was a “killing of a human,” 18 U.S.C.
§ 1111(a), and 18 U.S.C. § 924(c)(1)(A) enhanced the sentence
for a conviction for any crime of violence defined as an offense
an element of which was “the use, attempted use, or threatened
use of physical force[.]”
Comparing the elements of the offense
with the statutory requirement, the court found the two were a
categorical match because “one cannot unlawfully kill another
10
human being without a use of physical force capable of causing
physical pain or injury to another[.]”
Id. at 238.
Here, Maryland attempted second-degree murder has, as an
element, the attempted killing of another.
State, 397 Md. 704, 721-22 (2007).
See Thornton v.
For the purposes of the
ACCA, an offense is a violent felony if it “has as an element
the . . . attempted use . . . of physical force against the
person of another.”
offense
of
“violent
18 U.S.C. § 924(e)(2)(B)(i).
conviction
felony”
satisfies
because
the
statutory
attempting
to
Thus, the
definition
“unlawfully
of
kill[]
another human being requires the use of force capable of causing
physical pain or injury to another person.”
In re Irby, 858
F.3d at 236 (internal quotation marks omitted).
Even if the Fourth Circuit’s decision in In re Irby did not
require finding murder to be a crime of violence, it appears
that no court has found otherwise, and “it goes against common
sense to hold otherwise.”
JAR,
2017
parties
WL
do
4123301,
not
cite
United States v. Love, No. 15-20098-
at
nor
*12
is
(D.Kan.
the
Court
Sept.
18,
aware
of
2017)(“The
any
court,
district or appellate level, holding murder is not a violent
felony.”); see, e.g., United States v. Baez-Martinez, No. 12-281
(JAG),
2017
WL
2954621,
at
*3
(D.P.R.
June
29,
2017)(“The
conduct element of second degree murder — the unlawful killing
of a human being — necessarily requires physical force.”); Young
11
v. United States, No. 15-2575-STA-tmp, 2016 WL 8711562, at *5-6
(W.D.Tenn.
Dec.
16,
2016)(holding
second-degree
murder
was
categorically a crime of violence for ACCA purposes); United
States
v.
Moreno-Aguilar,
2016)(holding
that
purposes).
murder
Maryland
198
was
F.Supp.3d
a
crime
attempted
548,
of
554
violence
second-degree
(D.Md.
for
ACCA
murder
is
categorically a violent felony.
B.
Assault with Intent to Maim
Petitioner argues that Maryland assault with intent to maim
does
not
categorically
pertain
to
a
violent
felony
because
“Maryland assault requires an offensive touching – not violent
physical
force.”
(ECF
No.
124,
at
11).
Respondent
argues,
“Assault with the conscious and purposeful design to accomplish
the maiming of the victim necessarily requires the intentional
use or attempted use of physical force.”
(ECF No. 134, at 6).
The Maryland offense of assault with intent to maim was a
statutory
assault
felony
with
which
the
occurred
“specific
when
intent
disfigure, or disable such person[.]’”
a
person
to
committed
permanently
an
maim,
Ford v. State, 330 Md.
682, 701 (1993); Md.Code Ann., art. 27 § 386 (1982 Repl.).2
The
offense
and
combined
the
common
law
offenses
of
maiming
disfigurement.
Hammond v. State, 322 Md. 451, 456-59 (1991).
At
maiming
common
2
law,
was
defined
as
This statute was repealed in 1996.
12
“bodily
hurt,
or
the
infliction thereof, whereby a man is deprived of the use of any
member of his body or any sense which he can use in fighting, or
by the loss of which he is generally and permanently disabled,”
whereas disfigurement included serious, permanent injuries such
as the removal of an ear or nose which would not undermine the
body’s “efficacy in battle.”
legislature’s
combination
of
Id. at 456, 458.
the
offenses
The Maryland
reflected
“the
emphasis in modern times . . . on the completeness and integrity
of the body[.]”
Id. at 458.
Acts that supported a conviction
for an assault with intent to maim included lighting a child’s
shirt on fire, stabbings, removing eyes and ears, and shootings.
State v. Jenkins, 307 Md. 501 (1986)(upholding a conviction for
assault with intent to maim when the defendant shot the victim
in the leg); Marks v. State, 230 Md. 108 (1962)(upholding a
conviction for assault with intent to maim when a man put a
match to his son’s shirt); Williams v. State, 100 Md.App. 468
(1994)(upholding a conviction for assault with intent to maim
when the defendant stabbed the victim twice); Bryant v. State,
83 Md.App. 237 (1990)(reversing on other grounds a conviction
for assault with intent to maim when a defendant stabbed his
victim, cut off part of an ear, and removed an eye).
To sustain a conviction for assault with intent to maim,
the state would have needed to show that the actor’s object in
committing the assault was to have the victim “linger on . . .
13
in a disabled or disfigured condition.”
Jenkins v. State, 59
Md.App. 612, 618 (1984), aff'd in part, rev'd in part, 307 Md.
501 (1986).
Because a “disabled or disfigured condition,” id.,
is a physical injury, in all its applications, assault with
intent
to
maim
requires
a
force
“intended
injury, or at a minimum likely to do so.”
to
cause
bodily
Flores v. Ashcroft,
350 F.3d 666, 672 (7th Cir. 2003)(Easterbrook, J.).
Moreover, assault with intent to maim was “the inchoate
form of intent-to-commit-grievous-bodily-harm murder.”
State, 68 Md.App. 379, 390 (1986).
another type of attempted murder.
Md. 704, 714 (2007).
Glen v.
In other words, it was
See Thornton v. State, 397
Attempted murder categorically requires
the use of violent force.
In re Irby, 858 F.3d at 237.
assault with intent to maim is a violent felony.
Thus,
See 18 U.S.C.
§ 924(e)(1)(i).
V.
Conclusion
For the foregoing reasons, the motion to vacate pursuant to
28 U.S.C. §2255 filed by Petitioner Marco Williams (ECF No. 124)
will be denied.
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. § 2255, the court is also required to issue or
deny a certificate of appealability when it enters a final order
adverse to the applicant.
“jurisdictional
A certificate of appealability is a
prerequisite”
to
14
an
appeal
from
the
court’s
earlier order.
Cir. 2007).
United States v. Hadden, 475 F.3d 652, 659 (4th
A certificate of appealability may issue “only if
the applicant has made a substantial showing of the denial of a
constitutional right.”
motion
is
denied
appealability
demonstrate
debatable
on
will
both
whether
28 U.S.C. § 2253(c)(B)(2).
procedural
not
“(1)
the
issue
that
grounds,
unless
jurists
petition
of
states
a
the
certificate
petitioner
reason
a
Where a
would
valid
claim
of
can
find
of
it
the
denial of a constitutional right and (2) that jurists of reason
would find it debatable whether the district court was correct
in its procedural ruling.”
Rose v. Lee, 252 F.3d 676, 684 (4th
Cir. 2001) (internal marks omitted).
Upon review of the record, the court finds that Petitioner
does not satisfy the above standards. Accordingly, the court
will decline to issue a certificate of appealability on the
issues which have been resolved against Petitioner.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
15
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