Williams v. USA - 2255
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
Civil Action No. DKC 15-0606
Criminal No. DKC 10-0109
UNITED STATES OF AMERICA
Presently pending and ready for resolution are the motion
Williams (“Petitioner”), (ECF No. 109), and the motion for leave
to file a surreply filed by Respondent United States of America
(ECF No. 136).
The issues have been fully
Local Rule 105.6.
For the following reasons, the
motion to vacate will be denied and the motion for leave to file
a surreply will be granted.
On February 25, 2013, Petitioner pled guilty to two counts
of being a felon in possession of a firearm in violation of 18
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).
(ECF No. 124, at 1-2).1
Petitioner argues that he
ordered by the Court, surreply memoranda are not permitted to be
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).
As the surreply addresses the new legal theory
identified for the first time in the reply brief, it will be
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
Petitioner amended his motion to reflect the new rule
of law identified in Johnson. (ECF No. 117).
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
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
Pettiford, 612 F.3d 270, 280 (4th Cir. 2010).
default based “on something external to the defense, such as the
novelty of the claim or a denial of effective assistance of
United States v. Mikalajunas, 186 F.3d 490, 493 (4th
suffers “actual prejudice” if his claim is not reviewed.
prejudice exception to procedural default is designed “to induce
litigants to present their contentions to the right tribunal at
the right time.”
Massaro, 538 U.S. at 504 (quoting Guinan v.
United States, 6 F.3d 468, 474 (7th Cir. 1993)(Easterbrook, J.,
Petitioner was sentenced as an armed career criminal in
The Armed Career Criminal Act (“ACCA”) provides that a
previous convictions . . . for a violent felony or a serious
exceeding one year . . . that—
attempted use, or threatened use of
physical force against the person of
another (“Force Clause”); or
(ii) is burglary, arson, or extortion,
presents a serious potential risk of
physical injury to another (“Residual
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).
The decision in
Johnson “was not dictated by precedent existing at the time.”
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
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
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
thus, satisfied the residual clause.
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
residual clause because the ordinary violation of the law would
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.
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
Therefore, the petition is not procedurally-barred.
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
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).
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.”
States v. McNeal, 818 F.3d 141, 152 (4th Cir. 2016).
first determine the elements of the offense, and then, for the
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
(ECF No. 124, at 5).
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
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.”
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
134 S.Ct. 1405, 1415 (2014); see United
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
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.
In In re
Irby, the Fourth Circuit was faced with a request to file a
successive habeas petition.
The petitioner argued that secondwas
argument lacked merit.
To reach this conclusion, the court
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.
In re Irby, 858 F.3d at
declaring Torres-Miguel no longer viable only did so in dicta,
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.”
Curtis Johnson v. United States,
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
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)).
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
Harrison v. State, 382 Md. 477, 489 (2004).
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
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.”
18 U.S.C. § 924(e)(2)(B)(i).
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.”
United States v. Love, No. 15-20098-
district or appellate level, holding murder is not a violent
felony.”); see, e.g., United States v. Baez-Martinez, No. 12-281
conduct element of second degree murder — the unlawful killing
of a human being — necessarily requires physical force.”); Young
v. United States, No. 15-2575-STA-tmp, 2016 WL 8711562, at *5-6
categorically a crime of violence for ACCA purposes); United
categorically a violent felony.
Assault with Intent to Maim
Petitioner argues that Maryland assault with intent to maim
“Maryland assault requires an offensive touching – not violent
“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
disfigure, or disable such person[.]’”
Ford v. State, 330 Md.
682, 701 (1993); Md.Code Ann., art. 27 § 386 (1982 Repl.).2
Hammond v. State, 322 Md. 451, 456-59 (1991).
This statute was repealed in 1996.
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.”
Id. at 456, 458.
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 . . .
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.
Because a “disabled or disfigured condition,” id.,
is a physical injury, in all its applications, assault with
injury, or at a minimum likely to do so.”
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).
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.
See 18 U.S.C.
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.
A certificate of appealability is a
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
28 U.S.C. § 2253(c)(B)(2).
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.
DEBORAH K. CHASANOW
United States District Judge
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