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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11627
________________________
D.C. Docket Nos. 5:16-cv-08107-LSC; 5:99-cr-00102-LSC-TMP-1
CLIFFORD SENTER,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent – Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 30, 2020)
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Before NEWSOM and BRANCH, Circuit Judges, and BAKER,* District Judge.
BAKER, District Judge:
Clifford Senter, a federal prisoner, appeals from the district court’s denial of
his
28 U.S.C. § 2255 motion to vacate sentence. Before the district court, Senter
argued, in relevant part, that he no longer qualified as an armed career criminal in
light of Johnson v. United States,
576 U.S. 591 (2015), because his prior 1988
Alabama conviction for attempted first-degree robbery was not a crime in the state
and as such had no state law elements. The district court rejected this portion of
Senter’s purported Johnson claim as an improper collateral attack on his state
conviction. We granted a certificate of appealability to determine whether the
district court violated Clisby v. Jones,
960 F.2d 925 (11th Cir. 1992) (en banc), by
misapprehending and thereby failing to address his argument that he no longer
qualified as an armed career criminal post-Johnson because his prior Alabama
attempted first-degree robbery conviction contained no state law elements.
However, a close review of the district court’s opinion reveals that it correctly
identified and sufficiently addressed Senter’s claim. Therefore, after careful
review and with the benefit of oral argument, we will affirm.1
*
Honorable R. Stan Baker, United States District Judge for the Southern District of Georgia,
sitting by designation.
1
We sua sponte VACATE and WITHDRAW the previous opinion filed on November 30, 2020
and appearing at Senter v. United States, F.3d , No. 18-11627,
2020 WL 6685299, at *1
(11th Cir. Nov. 13, 2020), and issue this opinion in its place. The previous opinion may not be
cited by or to this Court or any district court of the Eleventh Circuit.
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I
In 1999, a jury in the Northern District of Alabama found Senter guilty of
armed bank robbery in violation of
18 U.S.C. § 2113(a), (d), and 2 (Count I); using
and carrying a firearm in relation to a crime of violence in violation of
18 U.S.C. §
924(c)(1)(A)(iii) (Count II); and possessing a firearm after a felony conviction in
violation of
18 U.S.C. § 922(g)(1) (Count III). Normally, a violation of
18 U.S.C.
§ 922(g)(1) carries a maximum penalty of ten years in prison.
18 U.S.C. §
924(a)(2). However, Senter’s Presentence Investigation Report (“PSI”) provided
that under the Armed Career Criminal Act (“ACCA”) Senter qualified for an
enhanced sentence because he had three prior violent felony convictions. The PSI
based its finding on Senter’s three prior Alabama convictions: (1) a 1988 second-
degree robbery; (2) a 1988 attempted first-degree robbery; and (3) a 1992 third-
degree robbery.
At the time of Senter’s sentencing, a conviction could qualify as a violent
felony conviction under three different ACCA definitional clauses.
18 U.S.C. §
924(e)(2)(B)(i)–(ii). A conviction could qualify as a violent felony under the
ACCA’s so-called “elements clause” if it had “as an element the use, attempted
use, or threatened use of physical force against the person of another[,]” or it could
qualify under the “enumerated clause” if it was for “burglary, arson, . . . extortion
[or] involve[d] use of explosives.”
18 U.S.C. § 924(e)(2)(B)(i)–(ii); In re Hires,
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825 F.3d 1297, 1298–99 (11th Cir. 2016). Finally, under the statute’s “residual
clause,” a violent felony conviction also included “conduct that presents a serious
potential risk of physical injury to another.”
18 U.S.C. § 924(e)(2)(B)(ii).
During the sentencing hearing, Senter made no objections to the PSI. The
district court subsequently adopted the PSI and found that Senter was an armed
career criminal. However, the district court did not specify whether the prior
convictions qualified as violent felonies under the residual clause or instead under
one of the ACCA’s other definitional clauses. The district court applied the ACCA
enhanced sentencing requirement and sentenced Senter to a term of three hundred
months for Count I and three hundred and sixty months for Count III, to be served
concurrently. Finally, for Count II, Senter received an additional sixty months to
be served consecutively, for a total sentence of four hundred and twenty months.
This Court affirmed Senter’s conviction and sentence on direct appeal. United
States v. Senter,
232 F.3d 214 (11th Cir. 2000) (mem.).
In 2015, the United States Supreme Court decided Johnson v. United States,
holding “that imposing an increased sentence under the [ACCA’s residual clause]
violates the Constitution’s guarantee of due process.” Johnson, 576 U.S. at 606.
In June 2016, Senter, acting pro se, filed a § 2255 motion in the Northern District
of Alabama, arguing that his “[e]nhanced sentence [was] void in light of Johnson.”
After the district court appointed him counsel, Senter filed a Supplemental Brief.
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In it, he argued, among other things, that without the ACCA’s residual clause his
1988 Alabama attempted robbery conviction did not count as a violent felony for
purposes of the ACCA because attempted robbery is not a crime under Alabama
law and thus has no elements.2 Senter asserted that, without any elements, his
attempted robbery conviction did not meet either of the remaining definitions of a
violent felony because it did “not have as an element the use, attempted use, or
threatened use of physical force against a person” or “the elements of burglary,
arson, extortion [or] an element involving the use of explosives” as required by the
ACCA.
On February 5, 2018, the district court issued a Memorandum of Opinion
denying Senter’s § 2255 motion. The district court characterized Senter’s
Supplemental Brief as “argu[ing] that his attempted first-degree robbery conviction
is not a violent crime because attempted robbery has not been a criminal offense in
Alabama since 1979” or, “[i]n other words, . . . argu[ing] that his attempted
robbery conviction is invalid as a matter of Alabama state law.” The district court
rejected this argument as an impermissible collateral attack on the validity of his
2
Alabama enacted a new criminal code in 1980 which no longer recognized attempted robbery
as a separate criminal offense from robbery. See Conner v. State,
955 So. 2d 473, 475 (Ala.
Crim. App. 2006) (“Since the effective date of the Alabama Criminal Code, January 1, 1980,
attempted robbery is no longer considered a criminal offense . . . .”); Petty v. State,
414 So. 2d
182, 183 (Ala. Crim. App. 1982) (“Because the definition of robbery has been enlarged and
expanded by the new criminal code . . . the former crime of attempted robbery now constitutes
robbery.”).
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state court conviction. The district court then dismissed Senter’s § 2255 motion
with prejudice.
This appeal followed.3
II
Senter argues that the district court violated Clisby v. Jones by failing to
address his claim that his Alabama attempted robbery conviction was not a violent
felony conviction for purposes of the ACCA post-Johnson because the crime does
not exist under Alabama law and thus lacks any elements. Clisby requires a federal
district court “to resolve all claims for relief raised in a petition for writ of habeas
corpus pursuant to
28 U.S.C. § 2254 (1988), regardless whether habeas relief is
granted or denied.” 4 Clisby,
960 F.2d at 936. The district court classified Senter’s
claim as a collateral attack against his state sentence and dismissed it. Senter
asserts that the district court “misconstrued” his claim, and thereby failed to
address it in violation of Clisby.
3
“On an appeal of a § 2255 motion to vacate, we review legal issues de novo and factual
findings for clear error.” McKathan v. United States,
969 F.3d 1213, 1222 (11th Cir. 2020).
4
We have also applied the principle announced in Clisby to claims raised in a § 2255 motion.
See Rhode v. United States,
583 F.3d 1289, 1291 (11th Cir. 2009) (per curiam) (“[T]he district
court was required to comply with Clisby and resolve all claims for relief raised in [movant’s] §
2255 motion.”); see also Gay v. United States,
816 F.2d 614, 616 n.1 (11th Cir. 1987) (“[T]he
principles developed in habeas cases also apply to § 2255 motions.”).
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A
In Custis v. United States, the Supreme Court examined “whether a
defendant in a federal sentencing proceeding may collaterally attack the validity of
previous state convictions that are used to enhance his sentence under the ACCA.”
Custis v. United States,
511 U.S. 485, 487 (1994). The Supreme Court ultimately
held that the ACCA “does not permit [a defendant] to use the federal sentencing
forum to gain review of his state convictions” unless the conviction involved a
violation of the defendant’s right to counsel.
Id. at 497. Instead, a defendant must
challenge his state sentence either in state court or through federal habeas review
via
28 U.S.C. § 2254.
Id. If successful, the defendant could “then apply for
reopening of any federal sentence enhanced by the state sentences.”
Id.
Several years later, in Daniels v. United States, the Supreme Court
considered whether to extend Custis to federal movants who, through § 2255
motions, challenge their federal sentence by arguing that their prior state
convictions—which had been used for federal sentence enhancement—were
unconstitutionally obtained. Daniels v. United States,
532 U.S. 374, 376 (2001).
Applying reasoning similar to that used in Custis, the Supreme Court held that a
movant could not collaterally attack a state court conviction in a § 2255 motion.
Id. at 384. Writing for the Court, Justice O’Connor noted that states have an
interest in the finality of their judgments even in the context of their use for federal
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sentencing enhancements, because “if a state conviction were determined to be
sufficiently unreliable that it could not be used to enhance a federal sentence, the
State’s ability to use that judgment subsequently for its own purposes would be, at
the very least, greatly undermined.” Id. at 379–80. This broad interpretation of
what constitutes a collateral attack aligned with the Supreme Court’s prior
statements regarding the reasoning behind the doctrine. See Parke v. Raley,
506
U.S. 20, 30 (1992) (“Respondent, by definition, collaterally attacked his previous
convictions; he sought to deprive them of their normal force and effect in a
proceeding that had an independent purpose other than to overturn the prior
judgments.”) (citing Black’s Law Dictionary 261 (6th ed. 1990) and Lewis v.
United States,
445 U.S. 55, 58, 65 (1980)).
Our own precedent also supports a broad interpretation of the parameters of
a collateral attack. In United States v. Phillips, the district court determined during
sentencing that the defendant qualified as a career offender under U.S.S.G. §
4B1.1. United States v. Phillips,
120 F.3d 227, 229 (11th Cir. 1997). However,
the district court departed downward from the sentencing guidelines and sentenced
the defendant as if he were not a career offender.
Id. In explaining its decision,
the sentencing court expressed doubt as to whether the defendant was truly guilty
of the aggravated assault charge for which he had been convicted in the state court
system.
Id. at 230–31. We reversed the district court’s sentence, reasoning that,
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“[f]or all intents and purposes, the district court engaged in a collateral attack on
[the defendant’s] aggravated assault conviction.”
Id. at 231. We further explained
that, “in sentencing a defendant a district court cannot ignore or discount for any
purpose a prior conviction that has not been invalidated in a prior proceeding,
unless there was an unwaived absence of counsel in the proceedings resulting in
that conviction.”
Id.
While Phillips was a direct appeal, the opinion taken together with Custis
and its progeny illustrates the broad parameters of the prohibition against attacking
state court convictions through federal proceedings. Petitioners are prohibited
from asserting claims which would require a district court to “ignore or discount
for any purpose a prior [state] conviction that has not been [previously]
invalidated” except “when the conviction was obtained in violation of the
defendant’s right to counsel.” Phillips,
120 F.3d at 231 (citing Custis,
511 U.S. at
486–89 and United States v. Roman,
989 F.2d 1117, 1120 (11th Cir. 1993)).
B
In his § 2255 motion, Senter argued that “[a]ttempted robbery cannot qualify
as a violent felony under either the force clause or as an enumerated offense
because it is a non-existent offense and therefore does not have any elements.”
When addressing this argument, the district court provided the following analysis,
Senter additionally argues that his attempted first-degree robbery
conviction is not a violent crime because attempted robbery has not
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been a criminal offense in Alabama since 1979, relying upon Conner
v. State,
955 So. 2d 473, 475 (Ala. Crim. App. 2006) (“Since the
effective date of the Alabama Criminal Code, January 1, 1980,
attempted robbery is no longer considered a criminal offense.”). In
other words, Senter argues that his attempted robbery conviction is
invalid as a matter of Alabama state law. However, Senter may not
collaterally attack the validity of his state-court conviction in these
proceedings. See, e.g., Custis v. United States,
511 U.S. 485, 497
(1994) (Ҥ 924(e) does not merit Custis to use the federal sentencing
forum to gain review of his state convictions”); United States v.
Phillips,
120 F.3d 227, 231 (11th Cir. 1997) (“Collateral attacks on
prior convictions are allowed in federal sentencing proceedings in one
narrow circumstance only: when the conviction was obtained in
violation of the defendant’s right to counsel.”); United States v.
Jackson,
57 F.3d 1012, 1018 (11th Cir. 1995) (“Generally, we do not
allow a defendant to collaterally attack in the sentence proceeding
convictions being used to enhance his sentence.”). Thus, a claim that
the attempted robbery conviction is not a valid conviction cannot
serve as a basis to grant Senter relief.
The crux of Senter’s Clisby argument is that the district court
mischaracterized his claim as attacking the validity of his attempted robbery
conviction under Alabama law rather than as attacking the use of that conviction as
an ACCA predicate violent felony under federal law. However, the district court’s
reasoning shows that it understood at bottom that Senter’s claim would require it to
examine the validity of Senter’s state conviction. Indeed, in his motion before the
district court, Senter began his argument by contending that his attempted robbery
conviction was for a “non-existent offense.” Thus, in the first sentence of its
analysis quoted above, the district court correctly identified that Senter’s purported
Johnson claim was premised on his contention that he was convicted for a state
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law crime that did not exist at the time of his conviction. A defendant cannot be
convicted of a non-existent offense. See Adams v. Murphy,
653 F.2d 224, 225 (5th
Cir. 1981)5 (“Nowhere in this country can any man be condemned for a
nonexistent crime.”); Casey v. State,
925 So. 2d 1005, 1006 (Ala. Crim. App.
2005) (“[B]ecause [defendant] pleaded guilty to an offense that does not exist, his
conviction is void and should be set aside.”). Therefore, Senter’s claim implicitly
attacked the validity of his state conviction. Recognizing this practical import, in
the next sentence of its analysis the district court reformulated Senter’s claim by
stating, “In other words, [he] argues that his attempted robbery conviction is
invalid as a matter of Alabama state law.” This was not a misstatement of Senter’s
claim but rather simply an effort to get to the root of the problem with it—that
Senter was collaterally attacking a state court judgment. Indeed, by use of the
phrase “in other words,” the district court indicated that it recognized the actual
rather than the purported substance of Senter’s claim. Thus, the court correctly
identified the claim before it, and its reframing of the claim did not violate Clisby.
As for the analysis of Senter’s claim, to satisfy Clisby, a district court must
simply resolve a petitioner’s claim to an extent that makes it amenable to a
meaningful review on appeal. See Long v. United States,
626 F.3d 1167, 1170
5
In Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981), the Eleventh Circuit
adopted the decisions of the United States Court of Appeals for the Fifth Circuit decided prior to
September 30, 1981, as binding precedent.
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(11th Cir. 2010) (“[W]e have long required the district courts and administrative
boards to facilitate meaningful appellate review by developing adequate factual
records and making sufficiently clear findings as to the key issues.”). Here, the
district court’s assessment of Senter’s claim was thorough enough that we could
infer the analytic steps that were not expressly laid out in the Memorandum of
Opinion. As described above, both the Supreme Court and our own precedent
establish broad parameters for the collateral attack doctrine, and make clear that
the doctrine bars not only those claims that directly attack a state conviction but
also those that imply the invalidity of the conviction. As such, we can infer that by
citing both Custis and Phillips in support of its collateral attack determination, the
district court identified that Senter’s claim would at a minimum undermine a state
court decision (Senter’s Alabama conviction for attempted robbery) and should be
appropriately considered and analyzed as a collateral attack. To be clear, if the
district court had determined that Senter’s prior conviction lacked elements
because it was a non-existent offense under Alabama law, the district court at a
minimum would have been implying that the state conviction is invalid—after all,
as we have explained above one cannot have a valid conviction for a non-existent
offense. Such a holding, in essence, would have been sanctioning a collateral
attack to the state conviction and would have constituted an end-run around the
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Supreme Court’s decision in Custis and its progeny. 6 This recognition of Senter’s
claim as a collateral attack would necessitate dismissal of the claim, which is what
the district court did.
It may be best practice for a district court to follow a “show your work”
approach by directly restating a movant’s claim and then laying out all analytical
steps in addressing that claim. However, the district court’s approach here
correctly identified and sufficiently analyzed Senter’s claim and did not run afoul
of Clisby.
III
For the foregoing reasons, we affirm the district court’s judgment.
AFFIRMED.
6
Although Senter has suggested that granting him relief in this instance would have no effect
beyond this federal proceeding, the Supreme Court rejected a virtually identical argument in
Daniels. See
532 U.S. at 380 (rejecting the petitioner’s argument “that invalidating a prior
conviction . . . for purposes of its use under the ACCA would have no effect beyond the federal
proceeding,” and noting that “if a state conviction were determined to be sufficiently unreliable
that it could not be used to enhance a federal sentence, the State’s ability to use that judgment
subsequently for its own purposes, would be, at the very least, greatly undermined. [And], the
State does have a real and continuing interest in the integrity of its judgments”).
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