In Re: James Howard Sams , 830 F.3d 1234 ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14515-J
________________________
IN RE: JAMES HOWARD SAMS,
Petitioner.
__________________________
Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. § 2255(h)
_________________________
Before: ED CARNES, Chief Judge, HULL, and WILLIAM PRYOR, Circuit Judges.
B Y T H E P A N E L:
Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), James Howard Sams has filed an
application seeking an order authorizing the district court to consider a second or successive
motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization
may be granted only if we certify that the second or successive motion contains a claim involving:
(1) newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found the movant guilty of the
offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive
application only if it determines that the application makes a prima facie showing that the
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application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan
v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1357-58 (11th Cir. 2007) (explaining that this Court’s
determination that an applicant has made a prima facie showing that the statutory criteria have
been met is simply a threshold determination).
In his application, Sams indicates that he wishes to raise the following claims in a second
or successive § 2255 motion: (1) his counsel was ineffective for not objecting to his sentence
pursuant to 18 U.S.C. § 924(c) because no weapon was ever recovered or presented as evidence;
(2) his sentence pursuant to 18 U.S.C. § 2113(a) exceeded the statutory maximum sentence;
(3) the sentencing court erred by not making Sams aware of the mandatory minimum sentence
under §§ 2113(a) and 924(c); (4) his sentence was in violation of United States v. Booker, 543 U.S.
220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) because his guideline sentence was treated as
mandatory rather than advisory; (5) his jury was tainted by extraneous influences and juror
misconduct; (6) the prosecutor engaged in misconduct by charging him under § 2113(a) instead of
§ 2113(a) and (d); (7) his indictment was defective for “lack of substance on gun possession”;
(8) his counsel was ineffective for not requesting a change of venue after the mistrial; (9) his
career-offender enhancement violates due process because his prior offenses are not “crimes of
violence”; and (10) his conviction pursuant to § 924(c) violates due process because he was not
convicted of a “crime of violence.” He states that his claims rely upon a new rule of constitutional
law, citing Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015), and
Welch v. United States 578 U.S. ___, 136 S. Ct. 1257, 194 L. Ed. 2d 387 (2016). He also
indicates that his claims rely on newly discovered evidence, based on the decisions in Brown v.
United States, Nos. CV415-199, CR 412-278, 2016 U.S. Dist. LEXIS 46588 (S.D. Ga. Apr. 6,
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2016), and Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). He
argues that his newly discovered evidence establishes his innocence because he never possessed a
firearm and no weapon was recovered, and, therefore, his § 924(c) conviction was unlawful.
I. THE ACCA
The Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), defines the term “violent
felony” as any crime punishable by a term of imprisonment exceeding one year that:
(i) has as an element the use, attempted use, or 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.
18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the
“elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is
commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir.
2012).
On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA
is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by
a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at ___, ___,
135 S. Ct. at 2557-58, 2563. The Court clarified that, in holding that the residual clause is void, it
did not call into question the application of the elements clause and the enumerated crimes of the
ACCA’s definition of a violent felony. Id. at ___, 135 S. Ct. at 2563. In Welch, the Supreme
Court thereafter held that Johnson announced a new substantive rule that applies retroactively to
cases on collateral review. Welch, 578 U.S. at ___, ___, 136 S. Ct. at 1264-65, 1268.
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In light of the Supreme Court’s holdings in Johnson and Welch, federal prisoners who can
make a prima facie showing that they previously were sentenced, at least in part, in reliance on the
ACCA’s now-voided residual clause are entitled to file a second or successive § 2255 motion in
the district court. See In re Robinson, 822 F.3d 1196, 1197 (11th Cir. 2016). However, merely
alleging a basis that meets § 2255(h)’s requirements in the abstract only “represent[s] the
minimum showing” necessary to file a successive § 2255 motion because, under § 2244(b)(3)(C),
the applicant also must make “a prima facie showing that the application satisfies the requirements
of this subsection.” In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003). Accordingly, it
appears that it is not enough for a federal prisoner to simply identify Johnson as the basis for the
claim or claims he seeks to raise in a second or successive § 2255 motion, as he also must show
that he falls within the scope of the new substantive rule announced in Johnson. See, e.g., id.;
28 U.S.C. § 2244(b)(3)(C).
II. SECTION 924(c) CLAIM
Distinct from the provision in § 924(e), § 924(c) provides for a mandatory consecutive
sentence for any defendant who uses a firearm during a crime of violence or a drug-trafficking
crime. 18 U.S.C. § 924(c)(1). For the purposes of § 924(c), “crime of violence” means an
offense that is a felony and:
(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.
Id. § 924(c)(3)(A), (B). The former clause is referred to herein as the “use-of-force” clause and
that later clause as the “§ 924(c)(3)(B) residual clause.” Notably, the ACCA’s elements clause
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only involves the use of force “against the person of another,” while the use-of-force clause
involves the use of force “against the person or property of another.” Compare 18 U.S.C.
§ 924(e)(2)(B)(i), with 18 U.S.C. § 924(c)(3)(A) (emphasis added). Further, the physical force
used can be an “attempted use” or even a “threatened use” of force. See 18 U.S.C. § 924(c)(1)(A).
We recently recognized that it is an open question whether Johnson applies to the residual
clause set out in 18 U.S.C. § 924(c)(3)(B). In re Pinder, ___ F.3d ___, ___, No. 16-12299, 2016
WL 3081954, at *2 (11th Cir. June 1, 2016). In Pinder, this Court considered whether a
companion charge of conspiracy to commit Hobbs Act robbery might qualify as a crime of
violence under § 924(c). Id. at *2 n.1. Because it was not clear whether conspiracy to commit
Hobbs Act robbery qualified as a crime of violence under § 924(c), this Court concluded that the
applicant had made a prima facie case that Johnson impacted the validity of his § 924(c)
conviction. Id.
In other cases, it has been clear that the § 924(c) companion conviction qualifies as a crime
of violence under § 924(c). See, e.g., In re Saint Fleur, ___ F.3d ___, ___, No. 16-12299-J, 2016
WL 3190539, at *3 (11th Cir. June 8, 2016) (11th Cir. June 8, 2016) (concluding that a companion
conviction for substantive Hobbs Act robbery “clearly qualifies as a ‘crime of violence’ under the
use-of-force clause in § 924(c)(3)(A)” without regard to the § 924(c)(3)(B) residual clause); In re
Hines, ___ F.3d ___, ___, No. 16-12454-F, 2016 WL 3189822, at *3 (11th Cir. June 8, 2016)
(concluding that a companion conviction for armed bank robbery, in violation of 18 U.S.C.
§ 2113(a) and (d), “clearly” qualifies as a “crime of violence” under the § 924(c)(3)(A)
use-of-force clause without regard to the § 924(c)(3)(B) residual clause); In re Colon, ___ F.3d
___, ___, Nos. 16-13021-J, 16-13264-J, 2016 WL 3461009, at *3-4 (11th Cir. June 24, 2016)
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(same for a companion conviction for aiding and abetting a Hobbs Act robbery); In re Smith, ___
F.3d ___, ___, Nos. 16-13661-J, 16-14000-J, 2016 WL 3895243, at *3 (11th Cir. July 18, 2016)
(same for a companion conviction for carjacking, in violation of 18 U.S.C. § 2119); see also In re
Gordon, ___ F.3d ___, ___, Nos. 16-13681-J, 16-13803-J, 2016 WL 3648472, at *4 (11th Cir. July
8, 2016) (concluding that Saint Fleur and Hines do not conflict with Pinder and rejecting the claim
that under the prior panel precedent rule, Pinder, not Saint Fleur and Hines, control the outcome of
an applicant’s Johnson-based § 924(c) claim).
Here, Sams was indicted on one count of bank robbery, in violation of § 2113(a) (“Count
1”), and one count of possessing, carrying, using, and brandishing of a firearm during the
commission of a crime of violence, in violation of § 924(c)(1)(A)(ii) (“Count 3”).1 Count 1 of the
indictment charged that Sams, “by force and violence and intimidation, took United States
Currency from the person of another which was in the care, custody, control, management and
possession of Northwest Georgia Bank, a bank insured by the Federal Deposit Insurance
Corporation.” Count 3 of the indictment charged that Sams “possessed, carried, used, and
brandished a firearm during the commission of a crime of violence, that is, the bank robbery
alleged in Count One.” A jury convicted Sams of Counts 1 and 3. Sams was sentenced to a term
of imprisonment of 240 months as to the § 2113(a) conviction in Count 1 and a consecutive term of
84 months as to the § 924(c) conviction in Count 3.
Sams has not made a prima facie showing for relief under Johnson as to his conviction
pursuant to § 924(c). Sams’s § 924(c) conviction was based on his companion conviction for
1
Sams was also indicted on one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g) and 924(e) (“Count 2”). That count was ultimately dismissed.
The sentence at issue in this case was imposed on only Counts 1 and 3.
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bank robbery, in violation of § 2113(a), which requires that the defendant take the property of a
bank “by force and violence, or by intimidation.” See 18 U.S.C. § 2113(a). We have concluded
that an armed bank robbery conviction pursuant to § 2113(a) and (d) qualifies as a crime of
violence because it requires as an element, “the use, attempted use, or threatened use of physical
force against the person or property of another,” as set out in § 924(c)(3)(A). Hines, manuscript
op. at 5-7. Additionally, as to the “by intimidation” language contained in § 2113(a), this Court
has held that similar language still satisfies the § 924(c)(3)(A) use-of-force clause. See United
States v. Moore, 43 F.3d 568, 572-73 (11th Cir. 1994) (concluding, in the context of the federal
carjacking statute, 18 U.S.C. § 2119, that “[t]aking or attempting to take by force and violence or
by intimidation . . . encompasses the use, attempted use, or threatened use of physical force.”
(emphasis added) (quotation marks and alterations omitted)).
While we have not directly held that a bank robbery conviction under only § 2113(a),
rather than an armed bank robbery conviction under § 2113(a) and (d), qualifies as a crime of
violence under the § 924(c)(3)(A) use-of-force clause, the statutory language in § 2113(a) and our
holdings in Hines and Moore make clear that such a conviction falls within the scope of the
§ 924(c)(3)(A) use-of-force clause. Indeed, other circuits have concluded that a bank robbery
conviction under § 2113(a) qualifies as a crime of violence under the § 924(c)(3)(A) use-of-force
clause. See United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016) (concluding that a bank
robbery conviction under § 2113(a) qualifies as a “crime of violence” under the § 924(c)(3)(A)
use-of-force clause because (1) bank robbery “by force and violence” requires the use of physical
force, (2) bank robbery “by intimidation” requires the threatened use of physical force, and (3)
“[e]ither of those alternatives includes an element that is the use, attempted use, or threatened use
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of physical force”) (quotation marks omitted); Royal v. Tombone, 141 F.3d 596, 602 (5th Cir.
1998) (noting that a bank robbery conviction under § 2113(a) “includes as a necessary element the
use of force and violence or intimidation” and referencing the § 924(c)(3)(A) use-of-force clause
to conclude that a bank robbery conviction under § 2113(a) qualifies as a crime of violence); see
also United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000) (citing the § 924(c)(3)(A)
use-of-force clause and concluding that armed bank robbery qualifies as a crime of violence
because § 2113(a) requires a taking by force and violence, or by intimidation).
In McNeal, the Fourth Circuit explained precisely why a conviction under § 2113(a) alone
would still satisfy the § 924(c)(3)(A) use-of-force clause:
A taking “by force and violence” entails the use of physical force. Likewise,
a taking “by intimidation” involves the threat to use such force. As the Seventh
Circuit explained . . . , “[t]here is no space between ‘bank robbery’ and ‘crime of
violence’” because “violence in the broad sense that includes a merely threatened
use of force is an element of every bank robbery.”
....
Put succinctly, . . . [b]ank robbery under § 2113(a), “by force and violence,”
requires the use of physical force. Bank robbery under § 2113(a), “by
intimidation,” requires the threatened use of physical force. Either of those
alternatives includes an element that is “the use, attempted use, or threatened use of
physical force,” and thus bank robbery under § 2113(a) constitutes a crime of
violence under the force clause of § 924(c)(3).
McNeal, 818 F.3d at 153 (citations and alterations omitted).
We agree with the Fourth Circuit’s reasoning and hold now that a bank robbery conviction
under § 2113(a) by force and violence or by intimidation qualifies as a crime of violence under the
§ 924(c)(3)(A) use-of-force clause. Therefore, Sams has not made a prima facie showing for
relief as to his § 924(c) claim.
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III. CAREER OFFENDER GUIDELINES CLAIM
Similarly, Sams has not made a showing that he is entitled to relief on his career-offender
enhancement following Johnson. Section 4B1.1 of the Sentencing Guidelines provides that a
defendant is classified as a career offender if (1) he was at least 18 years old at the time of the
offense of conviction; (2) the offense of conviction was either a crime of violence or a
controlled-substance offense; and (3) he had at least two prior felony convictions of either a crime
of violence or a controlled-substance offense. U.S.S.G. § 4B1.1(a). The Guidelines define
“crime of violence” as any offense under federal or state law that is punishable by imprisonment
for more than one year and:
(1) has as an element the use, attempted use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical
injury to another.
U.S.S.G. § 4B1.2(a).
In United States v. Matchett, 802 F.3d 1185, 1193-96 (11th Cir. 2015), this Court held that
the vagueness doctrine, upon which Johnson invalidated the ACCA’s residual clause, did not
similarly apply to advisory Sentencing Guidelines. Then, in In re Griffin, ___ F.3d ___, ___,
No. 16-12012, 2016 WL 3002293, at *4 (11th Cir. May 25, 2016), we concluded that the “logic
and principles established in Matchett also govern . . . when the Guidelines were mandatory.”
Alternatively, even if Johnson invalidated the § 4B1.2 residual clause, we concluded that Welch
did not make Johnson retroactive for purposes of a successive § 2255 motion based on the
Guidelines. In re Griffin, ___ F.3d at ___, 2016 WL 3002293, at *5.
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Sams has not satisfied the statutory criteria for filing a successive § 2255 motion based
on his career-offender enhancement for several independent and alternative reasons.
First, Sams has not made a prima facie showing that Johnson applies to him in light of
Matchett’s and Griffin’s precedent that the Sentencing Guidelines cannot be unconstitutionally
vague. See id. at ___, 2016 WL 3002293, at *4; Matchett, 802 F.3d at 1195.
Second, our precedent holds that Welch does not make Johnson retroactive for purposes of
filing a successive § 2255 motion raising a Johnson-based challenge to the Sentencing Guidelines.
See In re Griffin, ___ F.3d at ___, 2016 WL 3002293, at *5; see also Welch, 578 U.S. at ___, 136
S. Ct. at 1264-65.
Third, even if Johnson retroactively applies to the Guidelines, Sams’s claims still fail.
Sams’s presentence investigation report (“PSI”) found him to be a career offender because he had
the following prior felony convictions: (1) 1985 California convictions for seven counts of
robbery;2 and (2) 1985 federal convictions for two counts of bank robbery and two counts of
robbery of savings and loan associations. 3 Sams did not object to the PSI’s listing of his
convictions or to the fact of these prior convictions. At sentencing, the district court adopted the
findings of fact and conclusions of law in the PSI in all respects. Sams also did not file a direct
appeal.
2
The seven robberies of banks and businesses were committed on different days during
1984-85 in Los Angeles, California, but Sams was sentenced to serve 15 years in prison for these
convictions on the same day (July 16, 1985). Thus, they count as one predicate for
career-offender status.
3
These robberies also were committed on different days, but the sentence was imposed on
the dame day (September 9, 1985). The PSI also identified other convictions for burglaries and
robberies, but the above crimes were used for the career-offender designation.
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Sams’s robbery convictions categorically count as crimes of violence under the
Guidelines’ enumerated crimes clause. See U.S.S.G. § 4B1.2 cmt. n.1 (stating that “crime of
violence” includes, inter alia, “robbery”); In re Burgest, ___ F.3d ___, No. 16-13597, 2016 WL
3923836, at *2 (11th Cir. July 21, 2016) (stating that this Court has recognized, based on the
decision of the Supreme Court in Stinson v. United States, 508 U.S. 36, 38, 113 S. Ct. 1913, 1915
(1993), that “the definition of ‘crime of violence’ provided by the Guidelines commentary is
authoritative”). Thus, Sams has the required two convictions for crimes of violence and is a
career offender without regard to the Guidelines’ residual clause. Johnson, even if retroactively
applied to the Guidelines, does not benefit Sams.
IV. SAMS’S OTHER CLAIMS
Sams’s claims also do not rely on newly discovered evidence. Sams seems to argue that
Brown and Alleyne constitute newly discovered evidence. However, these decisions do not
establish Sams’s factual innocence of the offense of conviction. See In re Boshears, 110 F.3d
1538, 1541 (11th Cir. 1997) (holding that the applicant must show that the newly discovered
evidence established that he was actually innocent of the offense). To the extent that Sams seeks
to rely on the decisions in Brown and Alleyne as new rules of constitutional law, his claim fails.
First, Brown is a decision from the district court, rather than a Supreme Court decision. Second,
we have not yet determined, in a published opinion, whether Alleyne created a new rule of
constitutional law that the Supreme Court made retroactive to cases on collateral review for
purposes of authorizing a second or successive collateral attack, or whether it is retroactive to
initial collateral proceedings. See Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285-86 (11th
Cir. 2014) (holding, in the context of a prisoner seeking to establish eligibility under the five-part
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18 U.S.C. § 2255(e) savings clause test, that Alleyne does not apply retroactively on collateral
review); United States v. Harris, 741 F.3d 1245, 1250 & n.3 (11th Cir. 2014) (applying Alleyne but
noting that “doing so is not intended to suggest that Alleyne applies retroactively to cases on
collateral review” because “Alleyne was decided in the context of a direct appeal, and the Supreme
Court itself has not expressly declared Alleyne to be retroactive on collateral review”).
Even assuming arguendo that Alleyne established a “new rule of constitutional law” within
the meaning of § 2255(h)(2), it has not been made retroactive to cases on collateral review by the
Supreme Court. For a new rule to be retroactive to cases on collateral review for purposes of
authorizing a second or successive § 2255 petition, the Supreme Court itself must make the rule
retroactive. Tyler v. Cain, 533 U.S. 656, 662-63, 121 S. Ct. 2478, 2482, 150 L. Ed. 2d 632(2001). Although multiple cases can, together, make a rule retroactive, the holdings in those
cases must necessarily dictate retroactivity of the new rule. Id. at 666, 121 S. Ct. at 2484. The
Supreme Court itself has not expressly declared Alleyne to be retroactive to cases on collateral
review. See generally Alleyne, 570 U.S. at ___, 133 S. Ct. at 2155-64. Alleyne also has not been
made retroactive through any combination of cases that necessarily dictate retroactivity.
Moreover, Alleyne was decided in the context of a direct appeal, and the Supreme Court has not
since applied it to a case on collateral review. See id. at ___, 133 S. Ct. at 2155-56; In re
Anderson, 396 F.3d 1336, 1339 (11th Cir. 2005) (concluding that United States v. Booker,
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), was not retroactively applicable in part
because it was decided in the context of a direct appeal, and the Supreme Court had not applied it
to a case on collateral review). Therefore, because the Supreme Court has not held, either directly
or by a series of decisions that necessarily dictate its retroactivity, that Alleyne is retroactively
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applicable, Sams’s reliance on it for purposes of § 2255(h)(2) is misplaced. See 28 U.S.C.
§ 2255(h)(2); Tyler, 533 U.S. at 663, 666, 121 S. Ct. at 2482, 2484.
Furthermore, to the extent Sams seeks to rely on Booker as a new rule of constitutional law,
his reliance is similarly misplaced. We have concluded that Booker is not retroactively applicable
because it was decided in the context of a direct appeal and the Supreme Court had not since
applied it to a case on collateral review. Anderson, 396 F.3d at 1339.
Finally, the remainder of Sams’s claims, including his challenges to his conviction
pursuant to § 2113(a), his claims of alleged juror and prosecutorial misconduct, and his ineffective
assistance of counsel claims, do not meet the statutory criteria because Johnson and Welch did not
address these issues. Further, Sams does not allege, much less show, that these claims rely on
newly discovered evidence.
Accordingly, because Sams has not made a prima facie showing that his proposed claims
meet the statutory criteria, his application for leave to file a second or successive motion is hereby
DENIED.
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