Anthony Bernard Harris v. United States ( 2018 )


Menu:
  •               Case: 16-15790    Date Filed: 06/18/2018   Page: 1 of 9
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-15790
    Non-Argument Calendar
    ________________________
    D.C. Docket Nos. 1:16-cv-02339-TWT.
    1:00-cr-00165-TWT-ECS-1
    ANTHONY BERNARD HARRIS,
    Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (June 18, 2018)
    Before WILSON, NEWSOM, and FAY, Circuit Judges.
    PER CURIAM:
    This case is identical to Beeman v. United States, 
    871 F.3d 1215
    (11th Cir.
    2017), in every material respect—it presents the same issues and involves the same
    Case: 16-15790     Date Filed: 06/18/2018   Page: 2 of 9
    lawyers (on both sides) making the same arguments about the same statutes. It is
    thus, not surprisingly, controlled by Beeman. The facts are known the parties and
    counsel; we will not repeat them here except as necessary.
    The district court denied as untimely Anthony Bernard Harris’s 28 U.S.C.
    § 2255 motion to vacate his sentence on the ground that Harris had raised a claim
    only under Descamps v. United States, 
    570 U.S. 254
    (2013)—which, applying our
    precedent, the court concluded did not restart the one-year statute of limitations
    that governed Harris’s motion. Previously, Harris was convicted of being a felon
    in possession of a firearm under the Armed Career Criminal Act (“ACCA”), 18
    U.S.C. §§ 922(g)(1) and 924(e). He was determined to be an armed career
    criminal based, in part, on a prior Georgia conviction for aggravated assault. On
    appeal, Harris argues that he raised a timely claim not under Descamps, but rather
    under Johnson v. United States, 
    135 S. Ct. 2551
    (2015)—which we have held does
    restart the one-year clock.
    We review de novo the district court’s determination that a § 2255 motion is
    time-barred. Drury v. United States, 
    507 F.3d 1295
    , 1296 (11th Cir. 2007).
    Regardless of the ground stated in the district court’s order or judgment, we may
    affirm on any basis supported by the record. Castillo v. United States, 
    816 F.3d 1300
    , 1303 (11th Cir. 2016).
    2
    Case: 16-15790       Date Filed: 06/18/2018   Page: 3 of 9
    The Antiterrorism and Effective Death Penalty Act of 1996 establishes a
    one-year statute of limitations for filing a § 2255 motion, which runs from the
    latest of four triggering events:
    (1) the date on which the judgment of conviction becomes final;
    (2) the date on which the impediment to making a motion created by
    governmental action in violation of the Constitution or laws of the
    United States is removed, if the movant was prevented from
    making a motion by such governmental action;
    (3) 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; or
    (4) the date on which the facts supporting the claim or claims
    presented could have been discovered through the exercise of due
    diligence.
    28 U.S.C. § 2255(f). It is the movant’s burden to show that he filed his motion
    within one of the four one-year limitation periods. See Rivers v. United States, 
    777 F.3d 1306
    , 1316 (11th Cir. 2015) (holding that the movant has the burden of
    providing entitlement to relief in a habeas proceeding). The § 2255(f) statute of
    limitations “requires a claim-by-claim approach to determine timeliness.” 
    Beeman, 871 F.3d at 1219
    (quotation omitted). Thus, if a movant asserts that his § 2255
    motion is timely because he filed it within one year of a Supreme Court’s issuance
    of a decision recognizing a new right made retroactive to cases on collateral
    3
    Case: 16-15790    Date Filed: 06/18/2018   Page: 4 of 9
    review, “we must determine whether each claim asserted in the motion depends on
    that new decision.” 
    Id. Normally, a
    conviction for being a felon in possession of a firearm or
    ammunition carries a statutory maximum sentence of ten years. See 18 U.S.C.
    §§ 922(g), 924(a)(2). If, however, a defendant who is convicted of those offenses
    already has three or more convictions for a “violent felony” or a “serious drug
    offense,” the ACCA provides that he must be sentenced to at least 15 years of
    imprisonment. 
    Id. § 924(e)(1).
    In 2001, when Harris was sentenced, the ACCA
    defined “violent felony” as follows:
    [A]ny crime punishable by imprisonment for a term exceeding one
    year . . . that—
    (i) has as an element the use, attempted use, or the threatened use
    of physical force against the person of another; or
    (ii) is burglary, arson, or extortion, involves use of explosives, or
    otherwise involves conduct that presents a serious potential risk
    of physical injury to another . . . .
    
    Id. § 924(e)(2)(B).
    The first prong is known as the “elements clause.” 
    Beeman, 871 F.3d at 1218
    (quotation omitted). The second prong comprises the
    “enumerated offenses clause” and the “residual clause.” 
    Id. (quotation omitted).
    In Johnson, the Supreme Court held that a defendant’s sentence cannot be
    increased using the ACCA’s residual clause because it is unconstitutionally vague.
    
    Johnson, 135 S. Ct. at 2563
    . The Court severed the residual clause from the
    4
    Case: 16-15790     Date Filed: 06/18/2018    Page: 5 of 9
    remainder of § 924(e), however, clarifying that its decision did “not call into
    question application of the Act to the four enumerated offenses, or the remainder
    of the Act’s definition of a violent felony.” 
    Id. Later the
    Supreme Court held that
    the new right recognized by Johnson applied retroactively to cases on collateral
    review. See Welch v. United States, 
    136 S. Ct. 1257
    , 1264-65 (2016).
    Accordingly, the Johnson decision qualifies as a triggering date under § 2255(f)(3).
    In contrast, Descamps, which held that sentencing courts may not apply the
    so-called “modified categorical” approach to determine if a conviction is a “violent
    felony” under the ACCA’s elements clause when the crime of conviction has a
    “single, indivisible set of elements,” does not qualify as a triggering date under
    § 2255(f)(3). See 
    Descamps, 570 U.S. at 258
    . Although we have held that the
    Descamps decision applies retroactively to cases on collateral review, we
    emphasized that Descamps did not establish a new right. See Mays v. United
    States, 
    817 F.3d 728
    , 733-34 (11th Cir. 2016); see 28 U.S.C § 2255(f)(3).
    In Beeman, we explained that whereas a “Johnson claim contends that the
    defendant was sentenced as an armed career criminal under the residual clause,” a
    “Descamps claim asserts that the defendant was incorrectly sentenced as an armed
    career criminal under the elements or enumerated offenses clause.” 
    Beeman, 871 F.3d at 1220
    . We held that the defendant there, who (like Harris here) challenged
    his conviction for Georgia aggravated assault as an ACCA predicate offense,
    5
    Case: 16-15790     Date Filed: 06/18/2018     Page: 6 of 9
    raised both a Descamps claim and a Johnson claim. 
    Id. Specifically, we
    held that,
    although the defendant there (like Harris) focused heavily on his argument that the
    Descamps decision meant that his Georgia conviction for aggravated assault could
    no longer qualify as a violent felony under the elements clause, he also argued (as
    does Harris) that the district court relied on the residual clause to find that his
    aggravated-assault conviction qualified as an ACCA violent felony. 
    Id. We thus
    affirmed the district court’s determination that, to the extent the defendant raised a
    Descamps claim, that claim was untimely. 
    Id. We held,
    however, that the
    defendant had also raised a Johnson claim that was timely under § 2255(f)(3). 
    Id. at 1220-21.
    As to the merits of the Johnson claim, we concluded that the defendant had
    failed to carry his burden of proving that the residual clause “actually adversely
    affected the sentence he received.” 
    Id. at 1221.
    We held that “[t]o prove a
    Johnson claim, the movant must show that—more likely than not—it was use of
    the residual clause that led to the sentencing court’s enhancement of his sentence.”
    
    Id. at 1221-22.
    We explained that, “[i]f it is just as likely that the sentencing court
    relied on the elements or enumerated offenses clause, solely or as an alternative
    basis for the enhancement, then the movant has failed to show that his
    enhancement was due to use of the residual clause.” 
    Id. at 1222.
    In so holding,
    we rejected the defendant’s premise that a Johnson movant meets his burden
    6
    Case: 16-15790       Date Filed: 06/18/2018   Page: 7 of 9
    unless the record affirmatively shows that the district court relied on the ACCA’s
    elements clause. 
    Id. at 1223.
    Because the defendant there had conceded that there
    was nothing in the record demonstrating that the district court relied only on the
    residual clause, and because our own review confirmed as much, we held that the
    defendant’s Johnson claim was due to be denied because he had failed to carry his
    burden of proof. 
    Id. at 1224-25.
    Here, as an initial matter, the government correctly concedes that Harris
    (like Beeman before him) raised both a Descamps claim and a Johnson claim in his
    § 2255 motion. In his § 2255 motion, Harris argued that, under Descamps, the
    applicable portion of the Georgia aggravated-assault statute was non-generic and
    indivisible because it provided that to commit aggravated assault, a person must
    commit assault with a “deadly weapon or with any object, device, or instrument”
    that, when used against a victim, is likely to or actually does result in serious
    bodily injury. As to his Descamps claim, the district court properly denied Harris’s
    § 2255 motion as untimely, because Harris was convicted in 2000 and first raised
    the Descamps claim in 2016, and because, as already explained, Descamps does
    not qualify as a triggering date under § 2255(f). See 28 U.S.C. § 2255(f)(1), (3);
    
    Beeman, 871 F.3d at 1220
    .
    But Harris (again, like Beeman) also raised a Johnson claim; he argued that
    his Georgia aggravated-assault conviction no longer qualified as a violent felony
    7
    Case: 16-15790    Date Filed: 06/18/2018    Page: 8 of 9
    under the ACCA because the residual clause is unconstitutionally vague, and that
    “in recent years, the Eleventh Circuit has been using the residual clause as a default
    home for many state statutes that might otherwise have been counted under the
    elements or enumerated crimes clauses.”         Harris’s Johnson claim was timely
    because he filed his § 2255 motion two days before the one-year anniversary of the
    Johnson decision, which (unlike Descamps) does qualify as a triggering date under
    § 2255(f). See 28 U.S.C. § 2255(f)(3); 
    Johnson, 135 S. Ct. at 2551
    ; 
    Beeman, 871 F.3d at 1220
    .
    Nevertheless, as in Beeman, Harris failed to prove that it was more likely
    than not that it was use of the residual clause that led to the sentencing court’s
    enhancement of his sentence. See 
    Beeman, 871 F.3d at 1221-22
    . In his appellate
    brief, Harris concedes (as did Beeman) that the sentencing court was silent as to
    whether it found the Georgia aggravated-assault conviction to be an ACCA
    predicate offense under the residual clause or the elements clause. And as was the
    case in Beeman, the record is similarly silent as to that issue; neither the PSI nor
    the district court at sentencing explained or indicated in any way whether the
    ACCA enhancement applied because Georgia aggravated assault was a violent
    felony under the ACCA’s elements clause or residual clause. See 
    Beeman, 871 F.3d at 1224-25
    . In Beeman, we squarely rejected the argument that Harris now
    makes—namely, that a Johnson movant meets his burden of showing a right to
    8
    Case: 16-15790      Date Filed: 06/18/2018      Page: 9 of 9
    seek a merits ruling on his § 2255 “unless the record affirmatively shows that the
    district court relied upon the ACCA’s elements clause.” 
    Beeman, 871 F.3d at 1223
    . Accordingly, given the record here, Harris’s Johnson claim is due to be
    denied because he failed to carry his burden of proving that it was more likely than
    not that he was sentenced as an armed career criminal under the ACCA’s residual
    clause. We may affirm on any ground supported by the record. See 
    Castillo, 816 F.3d at 1303
    .1
    AFFIRMED.
    1
    Given our holdings that Harris’s Descamps claim was properly denied as untimely and that his
    Johnson claim fails on the merits, we need not address his separate argument that his Georgia
    aggravated-assault convictions do not qualify as violent felonies under the ACCA’s elements
    clause.
    9
    

Document Info

Docket Number: 16-15790

Filed Date: 6/18/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021