United States v. Bong , 913 F.3d 1252 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 28, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-3323
TROY A. BONG,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. Nos. 6:16-CV-01088-JTM and 6:13-CR-10004-JTM-1)
_________________________________
Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Office of the Federal Public Defender for the District
of Colorado, Denver, Colorado, appearing for Appellant.
Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States
Attorney, with him on the briefs), Office of the United States Attorney for the District of
Kansas, Topeka, Kansas, appearing for Appellee.
_________________________________
Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
Defendant Troy Bong, convicted in 2013 of being a felon in possession of a
firearm and sentenced to a term of imprisonment of 293 months, appeals from the
district court’s denial of his motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255. The district court granted Bong a certificate of appealability
(COA) on Bong’s claims that he was improperly sentenced under the Armed Career
Criminal Act (ACCA) and that his trial and appellate counsel were ineffective for
failing to challenge the ACCA sentencing. We subsequently granted Bong a COA as
to two additional issues: (1) whether his trial counsel was ineffective for failing to
investigate the facts of the underlying traffic stop, Bong’s resulting arrest, and
Bong’s alleged possession of a firearm; and (2) whether the prosecution suppressed
any available video recordings of his stop and arrest.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Bong that
the district court erred in treating his prior Kansas state convictions for robbery and
aggravated robbery as “violent felonies” under the ACCA. Consequently, we remand
to the district court for consideration of whether Bong’s remaining prior convictions
are sufficient to support his sentence under the ACCA. As for Bong’s ineffective
assistance of trial counsel claims, we affirm in part, reverse in part, and remand for
further proceedings. Lastly, as to Bong’s prosecutorial misconduct claim, we reverse
and remand for further proceedings.
I
a) The underlying facts of Bong’s case
In an unpublished order and judgment issued in 2014, we addressed Bong’s
direct appeal and summarized the underlying facts of his case:
On December 22, 2012, Officers [Robert] Thatcher and [Joseph]
Springob of the Wichita Police Department were parked outside a house
that was the subject of a drug investigation. The officers observed a car
2
leave the target house and followed the vehicle. The driver of the
vehicle failed to activate the car’s turn signal 100 feet before an
intersection. Based on this traffic violation, the officers initiated a
traffic stop. Officer Springob approached the driver’s side of the car,
while Officer Thatcher approached the passenger side. A woman, later
identified as Mr. Bong’s wife, was driving the car. Mr. Bong was in the
front passenger seat.
Officer Thatcher used his flashlight to look into the passenger
side of the vehicle as he approached. Officer Thatcher testified Mr.
Bong refused to make eye contact, instead staring straight ahead.
Officer Thatcher thought Mr. Bong looked familiar, prompting him to
ask for Mr. Bong’s identification. Mr. Bong opened the passenger door
to hand Officer Thatcher his identification. As Mr. Bong opened the
door, Officer Thatcher noticed a cigarette pack between the passenger
seat and the door. Officer Thatcher found this suspicious because in his
experience people attempting to hide illegal substances often drop them
between the seat and door.
After examining Mr. Bong’s identification, Officer Thatcher
recalled he had previously arrested Mr. Bong on drug, firearms, and
parole violation charges. Officer Thatcher asked Mr. Bong if he was
still on parole, but Mr. Bong refused to respond. According to Officer
Thatcher, Mr. Bong began to exhibit signs of nervousness—heavy
breathing, sweating, and refusal to acknowledge the officer. Because
Officer Thatcher’s prior arrest of Mr. Bong had involved a firearm, the
officer became concerned for his and Officer Springob’s safety. Officer
Thatcher then asked Mr. Bong to exit the vehicle. Mr. Bong initially
refused to respond, but he eventually exited the vehicle after Officer
Thatcher repeated his order several times.
When Mr. Bong stepped out of the vehicle, Officer Thatcher
noticed he was standing so that the right side of his body was turned
away. Officer Thatcher also observed a knife clipped into one of the
front pockets of Mr. Bong’s jacket. Officer Thatcher removed the knife
from Mr. Bong’s pocket and told him to put his hands on top of the car.
He then informed Mr. Bong that he was going to perform a patdown for
weapons. According to Officer Thatcher, Mr. Bong hesitated, but
eventually put his hands on the top of the car.
Officer Thatcher reached up to place his hands on top of Mr.
Bong’s hands on the car roof. As he did so, Mr. Bong attempted to back
away from the car and evade Officer Thatcher. Because he feared Mr.
Bong might have a weapon, Officer Thatcher attempted to maintain
control of Mr. Bong’s hands. The two struggled briefly, at which point
Officer Thatcher tried to throw Mr. Bong to the ground while keeping
control of his hands. Both men fell to the ground, still struggling. As
3
Mr. Bong attempted to rise, Officer Thatcher kicked him approximately
three times in the abdomen in an attempt to knock him back down. At
that point, Officer Thatcher observed a black object resembling a
firearm fall to the ground. He immediately yelled “gun, gun!” Aplt.
Appx. at 93.
In response to Officer Thatcher’s shout, Officer Springob entered
the fray and knocked Mr. Bong to the ground. The officers were able to
subdue Mr. Bong and place him in handcuffs. After the officers
restrained Mr. Bong, they found a firearm on the ground beneath him.
United States v. Bong, 596 F. App’x 607, 608–09 (10th Cir. 2014) (Bong I).
b) Bong’s trial proceedings and sentencing
On January 8, 2013, a federal grand jury indicted Bong on one count of being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bong “moved
to suppress the evidence obtained during the traffic stop and his arrest, arguing it was
obtained in violation of his Fourth Amendment rights.” 596 F. App’x at 609. Bong
“acknowledged the officers had reasonable suspicion to initiate an investigative
traffic stop on the basis of the observed traffic violation,” but nevertheless “argued
the scope of the detention following the traffic stop and the force used by the officers
was unreasonable.” Id. “The district court expressed concern about the level of force
used by the officers, but it ultimately concluded Officer Thatcher’s actions were
justified under the circumstances” and thus “denied [the] motion to suppress.” Id.
“The case proceeded to trial,” where the “Government advanced the theory
that . . . Bong dropped the gun during the scuffle with the officers.” Id. “Bong’s
defense was that another man, Jeremy Fisher, had dropped the gun where it was
found and the traffic stop and subsequent scuffle only coincidentally occurred at the
4
same location . . . Fisher had dropped the gun.” Id. At the conclusion of the
evidence, the jury convicted Bong of the felon-in-possession charge.
The presentence investigation report (PSR) applied a base offense level of 24.
But the PSR concluded that Bong “ha[d] at least three prior convictions for a violent
felony or serious drug offense, or both, which were committed on different
occasions” and was therefore “an armed career criminal and subject to an enhanced
sentence under the provisions of 18 U.S.C. § 924(e).” ROA, Vol. 2 at 11.
Consequently, the PSR applied an offense level of 33 pursuant to U.S.S.G. § 4B1.4.
The PSR in turn concluded that Bong’s total criminal history score was 31, which
resulted in a criminal history category of VI. Together, the total offense level of 33
and the criminal history category of VI resulted in an advisory sentencing guidelines
range of 235 to 293 months.
Bong did not file objections to the PSR, but did file a sentencing memorandum
asking the district court to vary downward and impose a sentence of 187 months.
The district court denied that request and sentenced Bong to a term of imprisonment
of 293 months.
c) Bong’s direct appeal
Bong filed a direct appeal challenging the district court’s denial of his motion
to suppress. Bong also challenged the trial court’s admission at trial of two sets of
statements. On December 18, 2014, we issued an unpublished order and judgment
rejecting Bong’s arguments and affirming Bong’s conviction. Bong I, 596 F. App’x
at 614.
5
Bong filed a petition for writ of certiorari with the Supreme Court. His
petition was denied on April 20, 2015. Bong v. United States, 135 S. Ct. 1873
(2015).
d) Bong’s § 2255 proceedings
On April 6, 2016, Bong filed a pro se motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 asserting twenty-two separate grounds for
relief. Of relevance here, Ground One of the motion argued that in light of the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015)
(Johnson II), Bong’s prior convictions did not qualify as “violent felonies” or “crimes
of violence” for enhanced sentencing purposes because they did not require the use,
attempted use, or threatened use of physical force. ROA, Vol. 1 at 633. Ground Two
alleged, in pertinent part, that Bong’s appellate counsel was ineffective for failing to
“raise, brief and argue the . . . fast developing legal issues regarding [the] Armed
Career Criminal Act and enhanced sentence.” Id. at 634. Ground Twenty One of
Bong’s motion alleged that his trial counsel was ineffective for failing to challenge
the PSR or the convictions used to qualify Bong for the ACCA enhancement. Id.
at 655.
Bong subsequently moved for appointment of counsel. The district court
granted the motion, but solely for purposes of counsel assisting Bong “in obtaining
relief under Johnson [II].” Dist. Ct. Docket No. 74 at 2. Bong’s appointed counsel
moved to amend the § 2255 motion. In support, Bong’s counsel argued that, based
on the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243 (2016),
6
it was “clear that . . . Bong’s 1988 Kansas burglary conviction should not, and cannot
be used as a predicate ‘violent felony’ for an Armed Career Criminal Act
enhancement and it was error to be included as such by the [trial] Court,” and in turn
“it was ineffective for his trial and appellate counsel to fail to raise this issue at the
time of his original sentencing and appeal.” ROA, Vol. 1 at 783. The government
filed a response arguing that Mathis did not apply retroactively to cases on collateral
review. Id. at 790. Bong’s appointed counsel in turn filed a reply brief challenging
all of Bong’s prior convictions used to establish his ACCA status.
On September 22, 2016, Bong filed a pro se pleading entitled “TROY
BONG’S REPLY TO PLAINTIFF’S RESPONSE TO MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S. C. 2255.” Id. at 831.
In that pro se pleading, Bong alleged, in pertinent part, that he submitted a request
under the Kansas Open Records Act (KORA), Kan. Stat. Ann. §§ 45-215 to 45-223,
and that the City of Wichita, in response to his request, stated that “2 AXON videos
(patrol car recording equipment) exist” from his stop and arrest “that are 18 minutes
and 48 seconds long.” Id. at 884. Bong further alleged that “due to [his]
incarceration he [wa]s unable to purchase or receive copies of these videos,” but that
the videos “w[ould] show that [he] never resisted or attempted to escape before
Thatcher threw him to the ground and began using force on him.” Id. Thus, Bong
argued, “these videos constitute impeaching evidence which also show that the
officers gave perjured testimony at trial upon which the jury relied to convict [him].”
Id.
7
On October 28, 2016, the district court issued a memorandum and order
denying Bong’s § 2255 motion. The district court rejected Bong’s Johnson II-based
arguments, noting that he “has at least three convictions under Kansas law for
robbery or aggravated robbery” that “qualify as violent felonies under the ACCA.”
Id. at 1051. More specifically, the district court noted that Bong “was convicted in a
Kansas district court on May 29, 1990, of three counts of robbery, three counts of
aggravated robbery, and one count of attempted robbery.” Id. at 1052. These
offenses, the district court noted, “occurred on March 17, 1990; March 22, 1990;
March 25, 1990 (two offenses); March 29, 1990; April 3, 1990; and April 6, 1990.”
Id. The district court in turn noted that “[a]t the time of the offenses, Kansas law
defined robbery as ‘the taking of property from the person or presence of another by
threat of bodily harm to his person or the person of another or by force,’” id. (quoting
Kan. Stat. Ann. § 21-3426 (1970)), and “[a]ggravated robbery was ‘a robbery
committed by a person who is armed with a dangerous weapon or who inflicts bodily
harm on any person in the course of such robbery.’” Id. (quoting Kan. Stat. Ann.
§ 21-3427 (1970)). The district court thus concluded that “the elements of robbery
under Kansas law incorporate the ‘physical force’ necessary to constitute a violent
offense under § 924(e)(2)(B).” Id. The district court also concluded that “[t]he
element of force or threat of bodily harm in Kansas robbery materially distinguishes
this offense from Johnson [II]” because “[t]he Kansas element of the intentional use
of force or threat of bodily harm necessarily contemplates force capable of causing
pain or injury, placing this offense squarely within the violent felonies Congress had
8
in mind in adopting the ACCA.” Id. at 1053. In addition, the district court noted that
Bong cited “no Kansas Supreme Court case finding the force element of robbery to
be satisfied by evidence of ‘any physical contact’ with the victim” and, “[t]o the
contrary, Kansas cases characterize robbery as a taking accomplished by violence or
intimidation.” Id. at 1053-54. Lastly, the district court noted that Bong’s “seven or
so robbery offenses (including aggravated robbery) were largely consolidated for
charging and sentencing,” but “occurred (with one exception) on different dates, and
were thus ‘committed on occasions different from one another.’” Id. at 1054
(quoting United States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990)).
The district court rejected all of the other claims that Bong asserted, including
the various ineffective assistance of counsel and appellate counsel claims. In
addition, the district court addressed Bong’s pro se reply brief in the following
manner:
Defendant has filed a 158-page pro se Reply Brief (Dkt. 96) that
attempts to raise a multitude of claims in addition to those set forth in
the original or amended § 2255 motions. To the extent the Reply
attempts to raise new claims, those claims are barred because they have
been raised outside the applicable one-year statute of limitations. See
United States v. Guerrero, 488 F.3d 1313, 1316 (10th Cir. 2007)
(“When a § 2255 movant seeks to amend his pleading to include a new
claim, we will only entertain this claim if the amendment is made within
the one-year limit set by AEDPA.”). To the extent the Reply raises new
arguments (but not new claims) that were not set forth in his initial or
amended § 2255 motions, those arguments are considered waived. See
United States v. Herget, [585 F. App’x 948, 950] (10th Cir. 2014).
Nevertheless, the court has addressed the merits of the arguments
contained in the Reply Brief to the extent feasible.
Id. at 1047 n.1.
9
Lastly, the district court granted Bong a COA with respect to the issues raised
in his § 2255 motion concerning his “classification as an armed career criminal and
the effectiveness of counsel with respect to that classification.” Id. at 1072. The
district court denied Bong a COA on the remaining issues asserted in his § 2255
motion. Id. at 1073.
Bong filed a timely notice of appeal. He has since filed a motion to expand the
COA to include additional issues.
II
We begin by focusing on the ACCA-related issues on which the district court
granted Bong a COA. As outlined below, we conclude that Bong’s Kansas
convictions for robbery and aggravated robbery do not constitute “violent felonies”
for purposes of the ACCA.
Standards of review
“A motion to vacate a sentence under 28 U.S.C. § 2255 is generally the
exclusive remedy for a federal prisoner seeking to attack the legality of detention.”
United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (quotation marks and
brackets omitted). We review de novo the district court’s rulings on a § 2255 motion
and its findings of fact for clear error. Id.
“Whether a prior conviction satisfies the ACCA’s violent felony definition is a
legal question we review de novo.” United States v. Titties, 852 F.3d 1257, 1263
(10th Cir. 2017).
10
Was Bong properly sentenced under the ACCA?
“[T]he ACCA mandates an enhanced sentence of imprisonment of not less
than 15 years when the violator of § 922(g) has ‘three previous convictions . . . for a
violent felony.’” United States v. Garcia, 877 F.3d 944, 946 (10th Cir. 2017)
(quoting 18 U.S.C. § 924(e)(1)). The ACCA defines a “violent felony” as “any crime
punishable by imprisonment for a term exceeding one year” that falls within the
scope of one of three enumerated clauses: (1) the elements clause, which states: “has
as an element the use, attempted use, or threatened use of physical force against the
person of another,” § 924(e)(2)(B)(i); (2) the enumerated offenses clause, which
includes any crime that “is a categorical match to the generic offenses of ‘burglary,
arson, or extortion,’” Harris, 844 F.3d at 1263 (quoting § 924(e)(2)(B)(ii)); or (3) the
residual clause, which includes any crime that “otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii).
In Johnson II, the Supreme Court held that the ACCA’s residual clause was
unconstitutionally vague and “that imposing an increased sentence under the residual
clause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563.
The result is that, for a prior conviction to constitute a “violent felony” under the
ACCA, it must either be one of the enumerated offenses in § 924(e)(2)(B)(ii) or it
must fall within the elements clause in § 924(e)(2)(B)(i). See Harris, 844 F.3d
at 1263. In this case, it is undisputed that Bong’s prior Kansas convictions for
robbery and aggravated robbery do not fall within the enumerated-offenses clause
11
and, thus, must fall within the elements clause in order to constitute “violent
felonies” for purposes of the ACCA.
“To determine if a prior conviction qualifies as a violent felony” under the
ACCA’s elements clause, “we apply the categorical approach, focusing on the
elements of the crime of conviction, not the underlying facts.” Harris, 844 F.3d
at 1263 (citing Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). More
specifically, we must determine whether the Kansas statutes of conviction “ha[ve] as
an element the use, attempted use, or threatened use of physical force against the
person of another.” See § 924(e)(2)(B)(i). “This inquiry requires application of both
federal law and [Kansas] state law.” Harris, 844 F.3d at 1264. “Federal law defines
the meaning of the phrase ‘use, attempted use, or threatened use of physical force’ in
§ 924(e)(2)(B)(i).” Id. “And state law defines the substantive elements of the crime
of conviction.” Id.
The terms employed in the ACCA’s elements clause have, for the most part,
been clearly defined by the Supreme Court. The term “use,” as employed in the
ACCA’s elements clause, “requires active employment” rather “than negligent or
merely accidental conduct.” Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). In turn, the
term “physical,” as employed in the ACCA’s elements clause, means “force exerted
by and through concrete bodies—distinguishing physical force from, for example,
intellectual force or emotional force.” Johnson v. United States, 559 U.S. 133, 138
(2010) (Johnson I). As for the term “force,” the Court rejected the traditional
definition (i.e., that force can be satisfied by even the slightest offensive touching)
12
and instead held that in the context of the ACCA, the phrase “physical force” means
“violent force”—“force capable of causing physical pain or injury to another person.”
Id. at 140. Thus, the ACCA’s elements clause refers to the active, attempted, or
threatened employment of violent force—force capable of causing physical pain or
injury—against the person of another.
Recently, in Stokeling v. United States, 586 U.S. –, 2019 WL 189343 (2019),
the Supreme Court revisited the ACCA’s elements clause to determine whether a
Florida robbery conviction constituted a predicate offense under the ACCA. In doing
so, the Court held “that the elements clause encompasses robbery offenses that
require the criminal to overcome the victim’s resistance.” 2019 WL 189343 at *3.
The Court explained that “the force necessary to overcome a victim’s physical
resistance is inherently ‘violent’ in the sense contemplated by Johnson[ I], and
‘suggest[s] a degree of power that would not be satisfied by the merest touching.’”
Id. at *7 (quoting Johnson I, 559 U.S. at 139). “This is true,” the Court noted,
“because robbery that must overpower a victim’s will—even a feeble or weak-willed
victim—necessarily involves a physical confrontation and struggle.” Id. The Court
stated that a physical confrontation or “altercation need not cause pain or injury or
even be prolonged” because “it is the physical contest between the criminal and the
victim that is itself ‘capable of causing physical pain or injury.’” Id. (quoting
Johnson I, 559 U.S. at 140). Lastly, and significantly for purposes of our case, the
Court made it a point to emphasize that the “[m]ere ‘snatching of property from
another’ will not suffice” to constitute robbery under Florida law. Id. at *9.
13
Having outlined the meaning of the ACCA’s elements clause, “[w]e now apply
these principles to [the Kansas] robbery statute to determine whether it ‘has as an
element the use, attempted use, or threatened use of physical force against the person
of another.’” Id. (quoting § 924(e)(2)(B)(i)). In Harris, we outlined a “two-step
inquiry” for resolving whether a state’s “robbery statute requires physical force as
that term is used in the ACCA.” 844 F.3d at 1264. First, “we must identify the
minimum ‘force’ required by [the applicable state] law for the crime of robbery.” Id.
Second, we must “then determine if that force categorically fits the [ACCA’s]
definition of physical force.” Id. (italics in original). The Supreme Court has
emphasized “that in construing the minimum culpable conduct, such conduct only
includes that in which there is a ‘realistic probability, not a theoretical possibility’ the
state statute would apply.” Id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1685
(2013)). “Decisions from the state supreme court best indicate a ‘realistic
probability,’ supplemented by decisions from the intermediate-appellate courts.” Id.
(quoting Moncrieffe, 133 S. Ct. at 1685).
Bong’s ACCA sentence was based, in pertinent part, on three Kansas state
robbery convictions and three Kansas state aggravated robbery convictions, all of
which occurred in April of 1990 (but were based on separate incidents). At the time
of those convictions, the Kansas robbery statute provided as follows: “Robbery is the
taking of property from the person or presence of another by threat of bodily harm to
his person or the person of another or by force.” Kan. Stat. Ann. § 21-3426 (1988).
And the Kansas aggravated robbery statute provided: “Aggravated robbery is a
14
robbery committed by a person who is armed with a dangerous weapon or who
inflicts bodily harm upon any person in the course of such robbery.” Kan. Stat. Ann.
§ 21-3427 (1988).
In the unpublished decision in United States v. Nicholas, 686 F. App’x 570
(10th Cir. 2017), a two-judge panel of this court addressed whether the same Kansas
robbery statute required “physical force” as defined in the ACCA. In doing so, the
panel in Nicholas “look[ed] . . . to Kansas state law to define the substantive
elements of Kansas robbery and, in particular, the requirements of ‘force’ or ‘threat
of bodily harm.’” Id. at 574. The panel took particular note of State v. McKinney,
961 P.2d 1 (Kan. 1998), in which the Kansas Supreme Court reviewed the
defendant’s robbery conviction for purse-snatching. The robbery victim in the case
testified that she had cashed some checks at a bank and walked outside with a “thing
that [she] had the money in” when, as she was opening the door to her car, McKinney
appeared, “pushed [her] up against a door,” “grabbed [the] thing [containing the
money] . . . and took out.” 961 P.2d at 4. “McKinney told police that he had
snatched [the victim’s] purse from her arm, but he denied pushing her,” and he
consequently “argue[d] that the jury should have been instructed on theft as a lesser
included offense of robbery.” Id. at 8. The Kansas Supreme Court rejected
McKinney’s argument, concluding that even if he snatched the victim’s purse without
pushing her, simply “snatching the purse away from [the victim] constituted the
threat of bodily harm, which is an element of robbery.” Id. Although the panel in
Nicholas “acknowledge[d] that many, if not most, Kansas robbery convictions will
15
likely involve a greater degree of force than mere purse-snatching,” it nevertheless
concluded that “[i]n the context of Kansas robbery, McKinney establishes th[e]
lowest level of culpable conduct.”1 686 F. App’x at 575.
The panel in Nicholas in turn “conclude[d] that Kansas robbery does not
necessarily require the use, attempted use, or threatened use of violent force against
the person of another.” Id. at 576. In doing so, the panel in Nicholas noted that
“[s]everal circuit courts have concluded that, because a state’s robbery statute may be
violated with minimal actual force, it does not qualify as a violent felony under the
ACCA.” Id. at 575 (citing cases from the Fourth, Eighth, and Ninth Circuits
construing Arkansas, Massachusetts, Missouri and North Carolina robbery statutes).
In particular, the Nicholas panel noted that the Ninth Circuit in United States v.
Parnell, 818 F.3d 974, 979 (9th Cir. 2016) had held, in the context of examining a
Massachusetts armed robbery statute, that “the snatching of a purse from a victim’s
hand . . . does not constitute force ‘capable of causing physical pain or injury to
another person.’” 818 F.3d at 979 (quoting Johnson II, 559 U.S. at 140).
Ultimately, the panel in Nicholas concluded that “the minimum force
necessary under Kansas law to support a robbery conviction” does not “categorically
fit[] the definition of physical force under the ACCA.” Id. at 575. In other words,
1
In reaching this conclusion, the panel in Nicholas noted that it “ha[d] not
identified a general statement from Kansas courts as to the degree of force required to
support a Kansas robbery conviction.” 686 F. App’x at 576 n.5. Indeed, the panel
noted that most of the Kansas cases “addressing the force element of Kansas robbery
have done so in the context of determining the statute’s temporal requirements, not
its degree-of-force requirements.” Id.
16
the panel held that “[b]ecause Kansas robbery does not require the use, attempted
use, or threatened use of violent force as defined in Johnson, it cannot serve as a
predicate offense for purposes of the ACCA’s sentence enhancement provisions.” Id.
at 576.
Not surprisingly, the parties in the case before us have divergent views
regarding Nicholas. Bong argues that we should adopt the reasoning in Nicholas
because, although “not precedential, it is persuasive and applies here.” Aplt. Br.
at 48. The government, in response, argues that Nicholas “was wrongly decided.”
Aplee. Br. at 16. To begin with, the government asserts that, “contrary to the panel’s
note in Nicholas that it could not identify a general statement from Kansas courts as
to the degree of force necessary to constitute robbery,” there is in fact “sufficient
guidance” in Kansas case law “establishing the force necessary to support a robbery
conviction.” Aplee. Br. at 30. In particular, the government points to the following
statement made by the Kansas Supreme Court in State v. Aldershof, 556 P.2d 371
(Kan. 1976):
[T]o constitute the crime of robbery by forcibly taking money
from the person of its owner, it is necessary that the violence to the
owner must either precede or be contemporaneous with the taking of the
property and robbery is not committed where the thief has gained
peaceable possession of the property and uses no violence except to
resist arrest or to effect his escape.
Id. at 375. The government also cites various dictionaries for the proposition that
“[t]he word ‘violence’ connotes more than mere physical contact.” Aplee. Br. at 30.
17
Thus, the government argues, “[i]t is plain under Kansas law that gaining ‘peaceable’
possession of property is not robbery; rather, it is theft.” Id. at 31.
Notably, the very same argument was made by the government in Nicholas and
the panel in that case rejected it, stating as follows:
The primary case relied upon by the government, State v.
Aldershof, 556 P.2d 371 (1976), uses the term “violence” in reference to
robbery while answering the question of when force must occur, not
what degree of force is required. Id. at 373-75. Moreover, insofar as
Aldershof appears to conflate “violence” with the force necessary to
support a robbery conviction, those concepts are later divorced in State
v. Peck, 703 P.2d 781 (1985). See id. at 787 (“But the jury found there
was no violence used in the commission of the robbery . . . . Since there
was no direct evidence as to violence occurring with that taking, the
jury acquitted Peck on the charge of aggravated robbery, and instead
found him guilty of simple robbery.”).
More importantly, the McKinney court explicitly relied on
Aldershof in concluding that mere purse-snatching can support a
conviction for Kansas robbery. See McKinney, 961 P.2d at 9. We must
therefore reject any interpretation of Aldershof that would be
inconsistent with the holding in McKinney. See Jackson v. Harris, 43
F.2d 513, 516-17 (10th Cir. 1930) (“Where such decisions are in
conflict, the national courts will follow the latest settled adjudications of
the highest court of the state rather than the earlier ones . . . .”). In
doing so, we acknowledge that many, if not most, Kansas robbery
convictions will likely involve a greater degree of force than mere
purse-snatching; however, our analysis must focus on the lowest level of
conduct that can support a conviction under the statute. See Moncrieffe
v. Holder, 569 U.S. 184[, 190-91] (2013) (“Because we examine what
the state conviction necessarily involved, not the facts underlying the
case, we must presume that the conviction ‘rested upon nothing more
than the least of the acts’ criminalized, and then determine whether even
those acts [would constitute violent felonies].” (quoting Johnson [II],
559 U.S. at 137) (alterations omitted)). In the context of Kansas
robbery, McKinney establishes that lowest level of culpable conduct.
686 F. App’x at 575 (parallel citations omitted).
18
The government also argues that the panel in Nicholas “simply established a
quantum of force standard greater than that set by Johnson I.” Aplee. Br. at 32.
More specifically, the government argues that “the panel in Nicholas arguably gave
little credit to the adjective ‘capable’ in Johnson I, in turn concluding that purse
snatching is simply ‘incapable’ of causing physical injury or pain to another person.”
Id. at 33. “That,” the government asserts, “is far too broad of a conclusion to reach.”
Id. According to the government, “when considering that grabbing is sufficient to
cause physical injury, it is reasonable to conclude that purse snatching—which
necessarily involves grabbing—is similarly sufficient force to cause physical injury.”
Id.
The problem with the government’s argument is that it treats “purse snatching”
as a singular type of action when, as case law clearly demonstrates, it can be
accomplished in a variety of ways and with varying degrees of physical force. Of
course, it is easy to conceive of a particular act of purse-snatching that involves force
capable of causing physical harm to the victim—or, indeed, that actually causes
physical harm to the victim. But that was not the task faced by the panel in Nicholas
or by us. Rather, the task is to “identify the minimum ‘force’ required by [Kansas]
law for the crime of robbery.” Harris, 844 F.3d at 1264. And the panel in Nicholas
concluded, correctly in our view, that this minimum level of force was defined by the
specific act of purse-snatching that occurred in McKinney—an act that, at least
according to the defendant, involved the mere snatching of the purse (or whatever the
object was that actually contained the money) without any application of force
19
directly to the victim, and also, importantly, without any resistance by or injury to the
victim. See generally State v. Warwick, 654 P.2d 403, 405 (Kan. 1982) (holding that
“neither robbery nor aggravated robbery require bodily contact or the actual
application of force to the person of another as a necessary element for the
commission of those crimes”), abrogated on other grounds by State v. Adams, 744
P.2d 833 (Kan. 1987). Thus, we agree with the panel in Nicholas that robbery in
Kansas can be accomplished with minimal force that falls short of the “violent force”
required under the ACCA’s elements clause.
The government also suggests that Nicholas is inconsistent with our published
opinion in Harris. The government notes that in Harris, the “panel rejected the Ninth
Circuit’s decision in” Parnell, but in contrast the court in Nicholas “relied heavily on
Parnell to support its conclusion that Kansas’ robbery statute runs afoul of
Johnson I.” Aplee. Br. at 34. Contrary to the government’s suggestion, however,
Nicholas and Harris are consistent in their treatment of Parnell. Both Nicholas and
Harris recognized that Parnell dealt with a robbery conviction under Massachusetts
law and both noted that under Massachusetts law, a defendant may be convicted of
robbery without using violence or intimidation of any sort. Nicholas and Harris came
to different outcomes because each case addressed a different state statute. In
Nicholas, the panel concluded that robbery under Kansas law was similar to robbery
20
under Massachusetts law, whereas the panel in Harris concluded that robbery under
Colorado law differed from robbery under Massachusetts law. 2
In sum, we conclude that the government has failed to establish that the panel
in Nicholas erred in concluding that “the minimum force necessary under Kansas law
to support a robbery conviction” does not “categorically fit[] the definition of
physical force under the ACCA.” 686 F. App’x at 575. In turn, we adopt the
reasoning of Nicholas and conclude that Bong’s prior Kansas convictions for robbery
cannot serve as predicate offenses for purposes of the ACCA’s sentence enhancement
provisions.
The question then becomes whether we should proceed to address the other
convictions that were cited in the PSR as predicate offenses, or whether we should
instead remand the case to the district court to determine in the first instance whether
those convictions are countable predicate offenses. Because the parties have briefed
the question of whether Bong’s Kansas state aggravated robbery convictions can
serve as predicate offenses under the ACCA, we will proceed to address that
question.
2
As Bong notes in his Rule 28(j) letter, the First Circuit recently concluded
that a New York conviction for attempted robbery in the second degree was not a
“crime of violence” for purposes of the career offender guidelines because “there is a
realistic probability that [the defendant’s] conviction was for attempting to commit
an offense for which the least of the acts that may have constituted that offense
included ‘purse snatching, per se.’” United States v. Steed, 879 F.3d 440, 450 (1st
Cir. 2018) (quoting People v. Santiago, 405 N.Y.S.2d 572, 579 (N.Y. App. Div.
1978)).
21
As noted, Bong has three prior convictions for violating the Kansas aggravated
robbery statute. At the time of his convictions, that statute provided: “Aggravated
robbery is a robbery committed by a person who is armed with a dangerous weapon
or who inflicts bodily harm upon any person in the course of such robbery.” Kan.
Stat. Ann. § 21-3427 (1970). This statutory language makes clear that an aggravated
robbery is (a) a robbery (as defined in the Kansas robbery statute) committed by a
person who (b) is armed with a dangerous weapon or who inflicts bodily harm upon
any person in the course of such robbery.3 Having concluded that robbery under
Kansas law is not a “violent crime” for purposes of the ACCA, the question remains
whether the second element described above is sufficient to render an aggravated
robbery a “violent crime.”
In answering this question, we begin and ultimately end by focusing on
whether being armed with a dangerous weapon during the course of a robbery is
sufficient to render the crime a “violent crime” for purposes of the ACCA. The
Kansas aggravated robbery statute does not define “armed,” and we have not found
any Kansas cases expressly defining the term.4 Turning to dictionary definitions,
3
It appears clear that these two alternative methods of rendering a robbery an
“aggravated robbery” are not elements of different offenses, but rather only different
means by which a person commits a single armed robbery offense. See Mathis 136
S. Ct. at 2253; State v. Brown, 401 P.3d 611, 622 (Kan. 2017) (“aggravated robbery
can be committed by one who either ‘is armed with a dangerous weapon’ or ‘inflicts
bodily harm on any person in the course of such robbery’”).
4
The Kansas pattern jury instructions stated that it was not necessary for the
defendant to have exhibited the dangerous weapon to the victim, and that whether or
(Continued . . .)
22
Black’s Law Dictionary defines “armed” as “[e]quipped with a weapon” or
“[i]nvolving the use of a weapon.” Armed, Black’s Law Dictionary (10th ed. 2014).
Similarly, the Oxford English Dictionary defines “armed” as “[e]quipped with or
carrying a weapon or weapons (now typically firearms); involving the use of
weaponry.” Armed, Oxford English Dictionary (online ed. 2017). Presumably, being
“equipped” with a weapon is the same as “possessing” a weapon. In other words,
simple possession of a weapon, rather than actual use of a weapon, is a sufficient
means of being “armed” for the purposes of the Kansas aggravated robbery statute.
And that conclusion is supported by State v. Buggs, 547 P.2d 720 (Kan. 1976), where
the Kansas Supreme Court held that the Kansas aggravated robbery “statute requires
only that the robber be ‘armed with’ a dangerous weapon, not that he use it or that the
victim be aware of its presence.” Id. at 725.
We in turn conclude that merely being “armed” with a weapon during the
course of a robbery is not sufficient to render the crime a “violent crime” for
purposes of the ACCA. For example, take the simple robbery that was committed in
McKinney—i.e., the purse-snatching. Had the defendant in that case been armed
with a weapon, even a concealed one, at the time of the purse-snatching, that would
have been sufficient to render the crime an aggravated robbery under Kansas law.
But, as with the simple crime of purse snatching, nothing about the defendant’s mere
possession of a firearm (or another deadly weapon) would have necessarily caused
not the defendant was armed with a dangerous weapon was determined from the
victim’s point of view. State v. Holbrook, 932 P.2d 958, 961 (Kan. 1997).
23
the crime to involve “the use, attempted use, or threatened use of violent force
against the person of another.” § 924(e)(2)(B)(i).
Notably, the Ninth Circuit addressed a similar question in Parnell and
concluded that “[t]he mere fact that an individual is armed . . . does not mean he or
she has used the weapon, or threatened to use it, in any way.” 818 F.3d at 980. Like
the Kansas aggravated robbery statute at issue here, the Massachusetts aggravated
robbery statute that was before the court in Parnell did “not require a weapon to be
used or displayed, or even that the victim be aware of it.” Id. The Ninth Circuit thus
concluded that “[t]here is a material difference between the presence of a weapon,
which produces a risk of violent force, and the actual or threatened use of such
force.” Id. (emphasis in original). “Only the latter,” the Ninth Circuit held, “falls
within the ACCA’s force clause.”5 Id.
To be sure, the government in this case acknowledges Parnell, but states that it
“disagrees with this decision.” Aplee. Br. at 36 n.11. Notably, however, the
government makes no attempt to explain why Parnell’s holding on this point was
incorrect.
In United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016), the District of
Columbia Circuit distinguished Parnell, but it did so on the basis that the statute of
5
As Bong notes in his Rule 28(j) letter, the Ninth Circuit also reached the
same conclusion in a more recent case, i.e., United States v. Jones, 877 F.3d 884 (9th
Cir. 2017) (holding that a conviction under Arizona’s armed robbery statute did not
categorically qualify as a violent felony conviction under the ACCA’s force clause).
24
conviction in the case before it—i.e., Maryland armed robbery—required “that the
defendant commit the crime with the use of a dangerous or deadly weapon.” Id.
at 484 (italics in original). Quite clearly, had the Kansas aggravated robbery statute
required the use of a dangerous or deadly weapon, then Bong’s prior aggravated
robbery convictions would constitute predicate offenses under the ACCA. But, as
noted, the Kansas aggravated robbery statute does not include this requirement. We
therefore conclude that the Kansas crime of aggravated robbery is not categorically a
“violent crime” for purposes of the ACCA.
In light of our conclusions regarding Bong’s prior Kansas convictions for
robbery and aggravated robbery, we reverse the district court’s denial of Bong’s
§ 2255 motion and remand to the district court for further proceedings. On remand,
the district court will need to determine in the first instance whether Bong’s
remaining convictions are sufficient to support application of the ACCA.
Specifically, Bong has the following convictions that might constitute “crimes of
violence” for purposes of the ACCA: (1) a 1988 Kansas conviction for burglarizing a
residence; (2) a 1990 Kansas conviction for aggravated escape from custody (he
escaped from the Sedgwick County Community Corrections Center); (3) a 1999
Kansas conviction for “Riot (Misd)”; and (4) a 1999 Kansas conviction for
trafficking in contraband in a correctional facility. Bong briefly addresses the
burglary and trafficking convictions in his opening appellate brief, but we conclude it
is proper for the district court to consider these prior convictions in the first instance.
Ineffective assistance of trial and appellate counsel—ACCA sentence
25
The district court also granted Bong a COA on the question of whether his trial
and appellate counsel were ineffective for failing to object to the district court’s
imposition of the ACCA sentence. Having concluded that the district court erred in
basing Bong’s ACCA sentence on his prior Kansas robbery and aggravated robbery
convictions, it is unnecessary for us to address this ineffective assistance claim.
III
We now turn to the two issues as to which we granted Bong a COA:
(1) whether the district court erred in rejecting his claim that his trial counsel was
ineffective for failing to independently investigate the facts of the alleged crime; and
(2) whether the district court erred in summarily dismissing his claim regarding the
allegedly newly-discovered videos of his stop and arrest (which his counsel now
characterizes as a Brady/Giglio claim).6
Ineffective assistance of trial counsel – failure to investigate
Bong alleged in his original pro se § 2255 motion, and in greater detail in his
pro se reply brief, that his trial counsel was ineffective for failing to investigate the
facts of the traffic stop, Bong’s arrest, and Bong’s alleged possession of a firearm.
Bong argues that had his trial counsel “conducted even a minimally adequate
investigation, trial counsel would have discovered and presented multiple witnesses
6
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “that the
suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment”);
Giglio v. United States, 405 U.S. 150, 154 (1972) (mandating disclosure of evidence,
under Brady, that affects the credibility of a witness whose testimony “may well be
determinative of guilt or innocence”).
26
to corroborate that Jeremy Fisher, not . . . Bong, owned and possessed the firearm
and ammunition recovered by the police.” Motion to Expand COA at 2–3. Bong in
turn argues that he “was entitled to a hearing to prove [this] claim.” Id. at 3.
Relatedly, Bong argues that “the district court erred in disregarding the factual
allegations set forth in [his] second pro se pleading.” Id. Although Bong concedes
that he titled this second pro se pleading a “Reply,” he argues this was “immaterial”
because “pro se pleadings must be liberally construed” and thus the district court was
obligated “to construe the ‘Reply’ as an amendment.” Id.
The district court considered and rejected Bong’s claim that his trial counsel
failed to conduct an adequate investigation. ROA, Vol. 1 at 1067–68. In doing so,
the district court stated:
Defendant’s § 2255 motion fails to identify any material matters
that defense counsel failed to investigate. His massive Reply Brief
identifies a multitude of issues that defendant now claims should have
been further investigated. But defendant fails to address the significant
evidence weighing against his claim that his statement was involuntary,
fails to show that counsel’s performance fell below an objective
standard of reasonableness, and fails to show that the alleged failure to
investigate likely made a difference in the outcome.
Id. at 1068.
[D]efendant fails to cite any material evidence that defense
counsel failed to discover or to address in the course of the proceedings.
Defendant now claims a number of other things could have been
investigated, but most of these items have nothing to do with the issue
of whether defendant possessed the firearm that was found during the
stop. Defendant has now produced an affidavit of an individual named
Roger Schmidt, who says that he talked to defendant and his wife on the
night of the stop. Even if such evidence had been presented, however,
there is no reason to believe it could have affected the outcome of the
trial. Similarly, defendant now presents a statement from an individual
27
named Richard Sipes, who claims to have seen defendant at the
suspected drug house on the evening of the stop, and who says “there
was not a gun around.” But in addition to obvious problems with this
witness’s credibility, his statement shows no basis for knowing whether
defendant had a gun in his waistband or in his car. Any failure to
discover such testimony did not prejudice defendant. Essentially,
defendant’s claim that additional investigation would have produced
evidence to exonerate him is unsupported speculation.
Id. at 1069–70 (citations omitted). At no point did Bong expressly request an
evidentiary hearing on his failure-to-investigate claim and the district court in turn
did not address the need for a hearing.
We review de novo Bong’s ineffective assistance of counsel claim and, in
doing so, accept any underlying factual findings made by the district court unless
they are clearly erroneous. United States v. Watson, 766 F.3d 1219, 1226 (10th Cir.
2014).
We conclude, with one exception, that the district court properly rejected
Bong’s allegations of ineffective assistance as either meritless or time-barred. That
one exception concerns Bong’s allegation that his trial counsel was ineffective for
failing to request copies of any available video recordings of the traffic stop and his
arrest. As we have noted, Bong alleged in his pro se reply brief that at some point in
2016, while he was incarcerated, he contacted the City of Wichita and requested
copies of evidence relevant to his case under KORA. In response, the City of
Wichita allegedly acknowledged that “2 AXON videos (patrol car recording
equipment) exist that are 18 minutes and 48 second long.” Id. at 884. However, the
City of Wichita allegedly refused to provide Bong with a copy of the videos due to
28
the fact that he was incarcerated. Id. Bong now argues that these videos necessarily
must have been of his traffic stop and arrest and were improperly suppressed by the
police department or prosecution. Bong in turn alleges that these videos “will show
that [he] never resisted or attempted to escape before Thatcher just threw him to the
ground and began using force on him.” Id.
The district court did not expressly address these allegations in its order
denying Bong’s § 2255 motion. Instead, the district court treated these allegations as
untimely because they were raised for the first time in Bong’s pro se reply brief and
thus, in the district court’s view, fell outside of the one-year time limit set by
AEDPA. ROA, Vol. 1 at 1047 n.1 (“To the extent the Reply attempts to raise new
claims, those claims are barred because they have been raised outside the applicable
one-year statute of limitations.”). The district court failed to consider, however, the
fact that Bong’s § 2255 motion was filed within one year after Bong allegedly
discovered this new evidence. Based upon the materials contained in the record on
appeal, we conclude that the district court should have, at a minimum, determined
“the date on which the facts supporting the claim . . . could have been discovered
through the exercise of due diligence.” 28 U.S.C. § 2255(f)(4) (“The limitation
period shall run from the latest of . . . the date on which the facts supporting the
claim or claims presented could have been discovered through the exercise of due
29
diligence.”). Consequently, we reverse on this narrow issue of ineffective assistance
of trial counsel and remand to the district court for further consideration.7
Brady/Giglio claims – suppression of video evidence
Bong also challenges the district court’s dismissal of his related Brady/Giglio
claim. Generally speaking, “[w]e review de novo the existence of a Brady violation.”
United States v. Wells, 873 F.3d 1241, 1259 (10th Cir. 2017). “Proving a Brady
claim requires the defendant to show by a preponderance of the evidence (1) that the
government suppressed evidence, (2) that the evidence was favorable to the
defendant, and (3) that the evidence was material.” Id.
Bong alleged that “[t]hrough local law enforcement actions attributable to the
Government, the Government suppressed the video recordings” of the traffic stop and
his arrest and that “Officer Thatcher presented false testimony denying that any video
recordings existed.” Aplt. Br. at 44. The district court did not expressly address this
claim in its order denying Bong’s § 2255 motion, but instead concluded that it was a
new claim raised for the first time in Bong’s pro se reply brief and was “barred
because [it was] raised outside the applicable one-year statute of limitations.” ROA,
Vol. 1 at 1047 n.1.
As with Bong’s related ineffective assistance claim, the district court failed to
consider the fact that Bong’s § 2255 motion was filed within one year after Bong
7
We note that this ineffective assistance of counsel claim is intertwined with,
and will ultimately hinge on the merits of, Bong’s Brady/Giglio claim regarding the
alleged videotapes of his stop and arrest.
30
allegedly discovered the existence of the video recordings. And, notably, the
government agreed at oral argument that the district court erred in summarily
dismissing the claim as untimely. Consequently, we reverse the district court’s
dismissal of Bong’s Brady/Giglio claim and remand the claim to the district court for
further consideration.8
IV
With respect to Bong’s claims regarding his ACCA sentence, we REVERSE
the district court’s denial of § 2255 relief and REMAND with directions to the
district court to determine whether Bong’s ACCA sentence can be supported by his
non-robbery-related convictions. With respect to Bong’s ineffective assistance of
counsel claim, we AFFIRM in part, REVERSE in part, and REMAND to the district
court for further proceedings consistent with this opinion. With respect to Bong’s
Brady/Giglio claim, we REVERSE and REMAND for further proceedings consistent
with this opinion. Bong’s motion for expedited relief in DENIED as moot.
8
According to the government, it has evidence, in particular affidavits from
City employees, directly refuting Bong’s allegations regarding the purported
videotapes. But the government conceded that this evidence is not in the record on
appeal and thus the proper course is for the district court to consider all of the
evidence in the first instance.
31