Opinion
Case No. 1:12-CR-00533 Case No. 1:16-CV-01574
10-31-2016
EDWARD M. JONES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
OPINION & ORDER
[Resolving Doc. 44, 1:12-CR-00533]
[Resolving Doc. 1, 1:16-CV-01574] :
Defendant Jones filed his original § 2255 petition on September 21, 2015. Doc. 1, Dkt. 1:15-CV-01946. This Court allowed Edwards to voluntarily dismiss the original petition, Doc. 43, Dkt. 1:12-CR-00533, and refile. Defendant Jones refiled his § 2255 petition on June 20, 2016, Doc 1, 1:16-CV-01574. All citations are to the docket for 1:12-CR-00533.
Defendant Edward M. Jones petitions for habeas corpus relief under 28 U.S.C. § 2255. He argues that he was improperly sentenced under the United States Sentencing Guidelines ("USSG" or "Guidelines") because his prior aggravated robbery and felonious assault convictions are no longer prior offenses that trigger an enhanced sentence. For the following reasons, the Court DENIES Defendant Jones' petition.
Doc. 44. The Government opposes. Docs. 38, 41, 46.
I. Background
On January 22, 2013, Defendant Jones pled guilty to possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count 1); being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 2); and maintaining a drug involved premises, in violation of 21 U.S.C. § 856(a)(2) and (b) (Count 3). In his plea agreement, Jones agreed that he would "likely be classified as a career offender" under § 4B1.1 of the Guidelines. Under § 4B1.1, a defendant faces a higher offense level for sentencing purposes if he has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." Jones' Presentence Report ("PSR") identified four prior felony convictions.
Doc. 23.
Doc. 34 at 5.
United States Sentencing Guideline § 4B1.1.
1. Two counts of Felonious Assault with Firearm Specifications, Ohio Revised Code § 2903.11, Cuyahoga County Court of Common Pleas Case Nos. CR-89-237292 and CR-89-245582-B;
2. Voluntary Manslaughter, Ohio Revised Code § 2903.03, Cuyahoga County Court of Common Pleas Case No. CR-89-241090;
3. Aggravated Robbery with Firearm Specifications, Ohio Revised Code § 2911.01, Cuyahoga County Court of Common Pleas Case No. CR-89-246063.
Doc. 25 at 9.
Based on these "crimes of violence," the Court sentenced Jones to 140 months' incarceration on each count, to be served concurrently, followed by eight years of supervised release.
Doc. 29.
The Supreme Court's recent Johnson v. United States (Johnson II) opinion raises questions of whether certain prior crimes can be counted as "crimes of violence" under the Guidelines. Defendant Jones brings this motion arguing that his aggravated robbery and felonious assault convictions no longer qualify. As a result, Defendant Jones argues his base offense level was improperly calculated at the time of sentencing.
135 S. Ct. 2551 (2015).
Doc. 44 at 3-4. Defendant does not argue that his voluntary manslaughter conviction no longer qualifies as a crime of violence. The Government concedes that aggravated robbery is not a crime of violence. Doc. 41 at 9. Therefore, only Edwards' felonious assault convictions are at issue.
I. Legal Standard
Title 28 United States Code Section 2255 gives a federal prisoner post-conviction means of collaterally attacking a conviction or sentence that he alleges violates federal law. Section 2255 provides four grounds upon which a federal prisoner may challenge his conviction or sentence:
1) That the sentence was imposed in violation of the Constitution or laws of the United States;
2) That the court was without jurisdiction to impose such sentence;
3) That the sentence exceeded the maximum authorized by law; or
4) That the sentence is otherwise subject to collateral attack.
To prevail on a § 2255 motion alleging a constitutional error, the movant "must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings."
Watson v . United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v . Abrahamson, 507 U.S. 619, 637-38 (1993)).
Under 28 U.S.C. § 2255(f)(3), the one-year statute of limitations for seeking habeas relief runs from "the date on which the right asserted was initially recognized by the Supreme Court."
The Government argues that Jones' motion is not timely because Johnson does not apply to his sentence. Doc. 38 at 3-5. Because the Court finds Jones' argument to fail on the merits, it does not specifically address the motion's timeliness.
II. Discussion
Defendant Jones' argument centers on the relationship between the Guidelines and the Armed Career Criminals Act. Until recently, the Armed Career Criminals Act defined "violent felony" as "any crime punishable by imprisonment for a term 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) (emphasis added).
The first prong is called the use-of-force clause. The first part of the second prong is called the enumerated clause. And the second part of the second prong, emphasized above, is called the residual clause.
On June 26, 2015, the Supreme Court gave an opinion in Johnson II, holding that the residual clause was unconstitutionally vague. If a sentencing court imposed an increased sentence based on felonies that qualified under the residual clause alone, that sentence violated a criminal defendant's constitutional right to due process.
___ U.S.___, 135 S. Ct. 2551 (2015).
Id.
The Supreme Court's conclusion in Johnson II is retroactive in ACCA cases. A criminal defendant can collaterally challenge his sentence under the ACCA in a § 2255 habeas proceeding. Courts are being asked whether previous residual clause predicate convictions are still predicate offenses under either the use-of-force clause or the enumerated offenses clause.
Welch v . United States, ___U.S.___, 136 S. Ct. 1251, 1265 (2016).
The ACCA's definition of "violent felony" and the Guidelines' definition of "crime of violence" have very similar language. Under the Guidelines, a "crime of violence . . . (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."
United States Sentencing Guideline § 4B1.2(a) (emphasis added).
Defendant Jones —and many like him across the country—argue that because language in the Guidelines' definition of "crime of violence" is so similar to the ACCA residual clause held unconstitutional in Johnson II, Johnson II should also apply retroactively to Guidelines cases.
The Supreme Court has not yet decided whether Johnson II applies retroactively to Guidelines cases. However, even if it does, this Court finds that Defendant Jones' felonious assault convictions would still qualify as "crimes of violence" under the Guidelines' use-of-force clause.
This issue is currently pending before the Supreme Court in Beckles v. United States, Docket No. 1508544.
Scope of the Use-of-Force Clause
For a conviction to fall under the use-of-force prong, the underlying statute must necessarily entail "the use, attempted use, or threatened use of physical force against the person of another." So long as the statute only punishes conduct involving the use or attempted use of physical force, the statute does not need to expressly mirror the use-of-force clause's language.
Consider a non-divisible statute that punishes a wide array of conduct, some of which involves the use or threatened use of physical force, and some of which would not. Unless divisible, this statute could not be a predicate felony under the ACCA or Guidelines' use-of-force clause. The scope of the prohibited conduct is too broad. "The prior conviction qualifies as an ACCA [or Guidelines] predicate only if the statute's elements are the same as, or narrower than" a statute which had the exact language of the use-of-force clause.
Descamps v . United States, ___U.S.___, 133 S. Ct. 2276, 2281 (2013).
What, then, is "physical force"? The Supreme Court provided additional guidance in its 2010 Johnson v. United States decision (Johnson I). There, the Court analyzed the fit between the ACCA's use-of-force clause and the Florida battery statute, which criminalized "actually and intentionally touch[ing] or strik[ing] another person against [his] will." The Florida battery statute criminalized even the most "nominal contact" such as a "tap on the shoulder without consent."
559 U.S. 133 (2010) (the case is unrelated to the 2015 Johnson opinion).
Id. at 133 (quoting Fla. Stat. § 784.03(1)(a)).
Id. at 138.
In Johnson I, the Government tried to argue that this nominal contact was sufficient force because the use-of-force clause was analogous to common law battery, which criminalized the "merest touch." The Court rejected this broad approach, holding that "physical force" as used in the ACCA means "violent force—that is, force capable of causing physical pain or injury to another person." Moreover, the term "'physical' . . . plainly refers to force exerted by and through concrete bodies—distinguishing physical force from, for example, intellectual force or emotional force." The Court concluded that Florida's battery statute could not be a predicate offense under the use-of-force clause because punishing "nominal contact" was broader than the use-of-force clause.
Id. at 141.
Id. at 140.
Id. at 138.
Jones' Felonious Assault Convictions
Assuming that Johnson II applies to Guidelines cases, Jones' argument still fails. His prior felonious assault conviction is a "crime of violence" under the Guidelines' use-of-force clause.
Defendant Jones' 1989 felonious assault convictions under Ohio Rev. Code § 2903.11 constitute prior "crimes of violence" supporting a career-offender enhancement under Guideline § 4B1.1. At the time of Edwards' conviction, Ohio Revised Code § 2903.11 defined felonious assault as:
Doc. 25 at 9.
(A) No person shall knowingly:
(1) Cause serious physical harm to another;
(2) Cause or attempt to cause physical harm to another by means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 of the Revised Code.
Ohio Rev. Code § 2903.11 (1989). The underlying documents do not specify under which prong of subsection (A) Jones was convicted. Therefore, the Court looks to §2903.11(A) as a whole rather than one individual prong.
In United States v. Anderson, the Sixth Circuit addressed nearly identical statutory language. The Sixth Circuit first addressed Ohio's aggravated assault statute, Ohio Revised Code § 2903.12, and unequivocally held that it fell under the use-of-force clause because it "has as an element the use, attempted use, or threatened use of physical force against the person of another." The Sixth Circuit wrote,
695 F.3d 390 (6th Cir. 2012).
The statutory language addressed in Anderson is slightly different than the 1989 version of the statute under which Jones was convicted. The Anderson court analyzed:
(A) No person shall knowingly do either of the following:
(1) Cause serious physical harm to another or to another's unborn;
(2) Cause or attempt to cause physical harm to another or to another's unborn by means of a deadly weapon or dangerous ordnance.
Id. at 400.
the Ohio aggravated assault statute, which requires proof of "serious physical harm" or "physical harm . . . by means of a deadly weapon or dangerous ordnance," . . . . necessarily requires proof that the defendant used "force capable of causing physical pain or injury." We hold that one can "knowingly . . . [c]ause serious physical harm to another," . . . only by knowingly using force capable of causing physical pain or injury, i.e., violent physical force, in the context of determining what crime constitutes a "violent felony" under § 924(e)(2)(B)(i).
Id.
In other words, Ohio's aggravated assault statute qualifies under the ACCA's use-of-force clause.
The court next considered Ohio's felonious assault statute and noted that it "is identical to the Ohio aggravated assault statute, minus the mitigating element of provocation." The Sixth Circuit reasoned that if aggravated assault is a predicate offense under the use-of-force clause, then the same statute without a mitigating element of provocation satisfies the same ACCA clause. This Court agrees.
Id. at 402 (citing State v . Deem, 533 N.E.2d 294, 299 (Ohio 1988)).
The ACCA and the Guidelines use identical language in their use-of-force clauses. Because Defendant Jones seeks to take advantage of Johnson II's ruling on the ACCA residual clause, the Sixth Circuit's analysis of the ACCA use-of-force clause also applies.
Compare 18 U.S.C. § 924(e)(2)(B) with U.S.S.G. § 4B1.2(a).
Because Anderson is a published opinion squarely on the issue at hand, it controls. Jones' conviction for felonious assault remains a "crime of violence" under the Guidelines. Therefore, even if the Supreme Court decides that Johnson II applies retroactively to defendants sentenced under the Guidelines, Defendant Jones' argument would lose on the merits.
I. Conclusion
For the reasons above, the Court DENIES Jones' petition. Moreover, the Court certifies that no basis exists upon which to issue a certificate of appealability.
28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). --------
IT IS SO ORDERED. Dated: October 31, 2016
s/ James S . Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE
Anderson, 695 F.3d at 401 (citing Ohio Rev. Code § 2903.11(A)). The relevant statutory language, however, is consistent between the two versions. Thus, the court's analysis in Anderson applies with equal force to the 1989 version of the statute.