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Williams v. United States

United States District Court, S.D. Georgia, Waycross Division

February 7, 2018

HARRY THOMAS WILLIAMS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         On June 25, 2015, this Court sentenced Harry Thomas Williams (“Williams”) to fifteen years' imprisonment under the Armed Career Criminal Act (“ACCA”) after he pleaded guilty to being a felon in possession of a firearm, as well as to one count of possession of methamphetamine with intent to distribute. Williams, who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia, has now filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 52.)[1] Williams contends that the Court must resentence him following the United States Supreme Court's decision in Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (June 26, 2015). However, Johnson only invalidated the ACCA's residual clause, and Williams has failed to demonstrate that the Court relied upon that clause in any way during in his sentencing proceedings. To the contrary, the record reveals that the Court properly sentenced Williams as an armed career criminal under other provisions of the ACCA due to his prior convictions for sale and distribution of cocaine, possession of cocaine with intent to distribute, and burglary. Williams also claims that his trial counsel rendered ineffective assistance of counsel by failing to object to his designation as an armed career criminal and failure to investigate an insanity defense. However, Williams has failed to show that his counsel's performance fell below the objective standard of reasonableness, and he has failed to show that he suffered prejudice from his counsel's alleged deficiencies.

         For these reasons, which I detail more fully below, Williams' claims lack merit. Therefore, I RECOMMEND the Court DENY Williams' Motion to Vacate, Set Aside, or Correct his Sentence. (Doc. 52.) Further, I RECOMMEND that the Court DENY Williams a Certificate of Appealability and in forma pauperis status on appeal. The Court should DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. The Court GRANTS Williams' Leave to Amend his Reply, (doc. 62), and the Court has considered the assertions in that pleading when ruling on this matter.

         BACKGROUND

         I. The Armed Career Criminal Act

         The Court typically begins its discussion of a matter by detailing the factual and procedural background of the case before it. However, the facts and history of Williams' case will be better understood by first discussing the federal statutes under which Williams was prosecuted and recent cases pertinent to those laws.

         Federal law prohibits certain persons, including convicted felons, from shipping, possessing, or receiving firearms in or affecting interstate commerce. 18 U.S.C. § 922(g)(1). Ordinarily, an individual who violates this prohibition faces a statutory maximum sentence of ten years' imprisonment. 18 U.S.C. § 924(a). However, a statutory provision known as the “Armed Career Criminal Act” or “ACCA” imposes a higher mandatory minimum term of imprisonment for certain offenders. Any person who violates Section 922(g) and has on three or more occasions been convicted for a “serious drug offense” or “violent felony” will receive a mandatory minimum sentence of fifteen years' imprisonment. 18 U.S.C. § 924(e)(1). The ACCA provides, in relevant part:

the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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).[2]

         The first prong of this definition, set forth in subsection (i), has come to be known as the “elements clause, ” while the crimes listed at the beginning of the subsection (ii), “burglary, arson, or extortion, or involves use of explosives, ” have come to be known as the “enumerated crimes.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Finally, the last portion of subsection (ii), “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” is commonly referred to as the “residual clause.” Id.

         In the landmark case of Johnson, __U.S. at__, 135 S.Ct. at 2563, the Supreme Court held that “imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process[.]” Thus, the Court struck down that portion of the ACCA. However, the Court also emphasized that its “decision does 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. In Welch v. United States, __U.S.__, 136 S.Ct. 1257, 1264-65 (Apr. 18, 2016), the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review.

         While the four enumerated crimes (or the “enumerated crimes clause”) have not suffered the same fate as the residual clause, they have been the subject of numerous recent decisions of the Supreme Court and the Eleventh Circuit Court of Appeals. These decisions inform an analysis that is more complicated than would appear at first blush: whether an offender's prior conviction that bears the label of an enumerated crime actually constitutes a conviction for one of the enumerated offenses for purposes of the ACCA. Rather than merely relying on the label attached to an offender's prior conviction, federal courts must assess whether the defendant committed one of the enumerated crimes actually envisioned upon the passage of the ACCA. To conduct this inquiry, a sentencing court must assess the elements forming the basis of the offender's conviction and compare those elements to the “generic crime-i.e., the offense as commonly understood.” Descamps v. United States, 570 U.S. 254, 257 (2013).

         Decisions regarding whether a burglary conviction qualifies as an ACCA predicate offense demonstrate how courts approach the enumerated crimes. Though the ACCA specifically lists “burglary” as a violent felony, merely because a state conviction is labeled a “burglary” does not automatically qualify it as a predicate offense under the ACCA. Rather, “[a]s the [ACCA] has been interpreted, a conviction for ‘generic burglary' counts as a violent felony, while a conviction for ‘non-generic burglary' does not.” United States v. Ranier, 616 F.3d 1212, 1213 (11th Cir. 2010), abrogated on other grounds by United States v. Howard, 742 F.3d 1334 (11th Cir. 2014). A “generic” burglary is “any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). A “non-generic” burglary is one that “do[es] not include all of the elements essential to generic burglaries, ” including burglaries of boats, automobiles, and other non-buildings. Ranier, 616 F.3d at 1214.

         As with all enumerated crimes, to assess whether a state conviction for burglary qualifies as a generic crime, the Court can employ two methods. First, the Court must assess the state statute under “the categorical approach.” Howard, 742 F.3d at 1345-46. If that assessment does not end the inquiry, then the Court must determine whether the statute can be assessed under the “modified categorical approach.” Id. Under the “categorical approach, ” courts “compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic' crime-i.e., the offense as commonly understood.” Descamps, 570 U.S. at 257. Under this approach, “[t]he prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.” Id. If the statute so qualifies, then this ends the inquiry: the conviction is a violent felony, and the modified categorical approach is not needed. Howard, 742 F.3d at 1345.

         However, if the burglary statute is broader than the elements of the generic crime, the statute itself does not qualify as a predicate offense under the categorical approach. Thus, the court must then determine whether it can apply the “modified categorical approach” to assess whether the defendant's conviction under the statute does qualify as a predicate offense. Id. Courts can use the modified categorical approach in those instances “when a prior conviction is for violating a so-called divisible statute.” Descamps, 570 U.S. at 257. A divisible statute is a statute which “sets out one or more elements of the offense in the alternative-for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to . . . determine which alternative formed the basis of the defendant's prior conviction.” Id.

         To determine which alternative of a divisible statute formed the basis for the prior conviction, a court can assess a limited class of documents including the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge. Shephard v. United States, 544 U.S. 13, 16 (2005). These documents are commonly referred to as “Shephard documents.” If a statute is divisible, the Court can use the Shephard documents to “do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Descamps, 570 U.S. at 257. If the Shephard documents show that the defendant was found guilty under elements of a divisible statute which match elements of the generic offense instead of those which do not, the prior conviction is an ACCA predicate. Howard, 742 F.3d at 1347. In contrast, “a statute is indivisible if it contains ‘a single, indivisible set of elements.'” Id. at 1346 (quoting Descamps, 570 U.S. at 258 & at 257 (defining an indivisible statute as one “‘not containing alternative elements'”). “If a statute is indivisible, a court may not apply the modified categorical approach, and that is the end of the inquiry; the prior conviction cannot qualify as an ACCA predicate regardless of what any Shephard documents may show.” Id.

         In Howard, the Eleventh Circuit assessed whether the defendant's conviction under Alabama's third-degree burglary statute qualified as a generic burglary, and thus, a predicate violent felony under the ACCA. The Eleventh Circuit noted “[t]he elements of generic burglary under the ACCA are: (1) ‘an unlawful or unprivileged entry into, or remaining in, ' (2) ‘a building or other structure, ' (3) ‘with intent to commit a crime.'” Id. at 1348 (quoting Taylor, 495 U.S. at 598). The Eleventh Circuit first determined that the Alabama statute that the defendant in Howard was convicted under did not qualify as a generic burglary under the categorical approach because the elements of the offense were not the same as, or narrower than, those of the generic offense. Id. (citing Ranier, 616 F.3d at 1215). The Howard court then assessed whether the statute was divisible, and therefore, was able to be assessed under the modified categorical approach. The Court noted that, under Descamps, the “key to determining divisibility . . . is whether the statute sets out one or more elements of the offense in the alternative-for example, stating that burglary involves entry into a building or an automobile.” Id. (internal citation omitted) (emphasis in original). The Alabama statute contains nothing “suggest[ing] its definition of ‘building' is drafted in the alternative.” Id. “The items that follow each use of the word ‘includes' in the statute are non-exhaustive examples of items that qualify as a ‘structure' and thus count as a ‘building' under . . . § 13A-7-l(2). . . . The statutory definition of ‘building' does not say what is not included. In light of the Descamps decision, illustrative examples are not alternative elements.” Id. (internal citations omitted). Thus, the Eleventh Circuit determined that Alabama's third-degree burglary statute, § 13A-7-7, is a non-generic and indivisible statute, and a conviction under that statute “cannot qualify as a generic burglary under the ACCA.” Id. at 1349.

         In Mathis v. United States, __U.S.__, 136 S.Ct. 2243 (June 23, 2016), the Supreme Court further clarified how courts should employ the modified categorical approach. The Court held that the fact that a statute contains multiple alternative means of committing the crime does not make the statute divisible, if these means are not alternative elements but rather only factual determinations about an element, and thus, unnecessary to the jury's determination of guilt for the crime. Mathis, __U.S. at__, 136 S.Ct. at 2251-54. Put another way, the Court held that, when using the modified categorical approach to determine whether a prior conviction is a “violent felony” or “serious drug offense” under the ACCA, a court should focus on the “elements” of the statutory offense rather than on that offense's non-essential “means” of commission. Id.

         After Mathis, the Eleventh Circuit analyzed whether a conviction under Georgia's former burglary statute can constitute a predicate violent felony under the ACCA. United States v. Gundy, 842 F.3d 1156, 1166-69 (11th Cir. 2016). In Gundy, the offender had been designated as an armed career criminal due to his prior burglary convictions under the same Georgia burglary statute underlying Williams' Georgia burglary convictions. Id. Applying Mathis, the Eleventh Circuit determined that, though the statute was “non-generic, ”-i.e., broader than generic burglary, it was divisible. Id. The Court reasoned “the plain text of the Georgia statute has three subsets of different locational elements, stated in the alternative and in the disjunctive . . . effectively creating several different crimes.” Id. at 1167. “That the Georgia prosecutor must select and identify the locational element of the place burgled-whether the place burgled was a dwelling, building, railroad car, vehicle, or watercraft-is the hallmark of a divisible statute.” Id. Therefore, courts may continue to apply the modified categorical approach to determine whether a defendant's convictions under Georgia's prior burglary statute match the generic definition of burglary, and thus, qualify as predicate offenses under the ACCA. Id. at 1168-69.

         II. Williams' Conviction and Sentencing

         On December 8, 2010, a grand jury in this District charged Williams with four counts: possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count One); possession of a prohibited weapon, in violation of 26 U.S.C. § 5861 (Count Two); possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a) (Count Three); and possession of firearms in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c) (Count Four). (Doc. 1.) The Government's Penalty Certification filed at the commencement of the case stated that Williams faced a minimum term of imprisonment of fifteen years under the ACCA if he had three prior convictions for serious drug offenses or violent felonies. (Doc. 2.)

         Williams and his retained attorney, Mr. Joseph East, were able to negotiate a plea agreement with the Government whereby Williams agreed to plead guilty to Count One (possession of a firearm by a convicted felon) and Count 3 (possession with intent to distribute methamphetamine) in exchange for the Government moving to dismiss the remaining counts. (Doc. 46.)

         On January 13, 2015, Williams appeared before the Honorable Lisa Godbey Wood for a change of plea, or Rule 11, proceeding. (Doc. 45.) At the commencement of the hearing, Judge Wood explained that the parties had previously appeared for a Rule 11 hearing on December 19, 2014, but that Williams expressed surprise at the range of penalties he could face. (Doc. 56, pp. 2-3.) Thus, at that time, the Court found that Williams could not enter a knowing and voluntary guilty plea and set the case for trial. (Id.) However, Williams moved to continue that trial, and his counsel, Mr. East, subsequently notified the Court that Williams “is now fully apprised and understands the range of possible penalties he may face and does desire to enter into a plea of guilty to Counts 1 and 3 of this indictment.” (Id. at p. 3.) Judge Wood asked Williams if this was correct, and he responded that it was. (Id.) Mr. East explained that he had met with Williams on multiple occasions since the last Rule 11 hearing and that Mr. East had “done everything necessary to appraise him of everything he needs to know prior to today.” (Id.)

         Judge Wood then engaged in an extensive plea colloquy with Williams. She explained to Williams that the decision to plead guilty was an important one, that the decision was entirely his decision, and that she wanted to be certain that Williams understood all of the important considerations that go into the decision. (Id. at pp. 3-4.) Judge Wood inquired whether anyone had forced Williams to offer to plead guilty, and he said no one had done so and that pleading guilty was what he wanted to do. (Id. at p. 4.)

         Judge Wood had Williams placed under oath before asking him a series of questions. (Id.) He was able to recount his personal information, including his age, the age of his children, and his residence. (Id. at p. 5.) Williams testified that he completed high school and held a number of jobs. (Id.) Williams then stated that he had the disabilities of bipolar disorder and paranoid schizophrenia. (Id.) Judge Wood asked Williams whether he was currently taking medication for those conditions, and he responded that he was. (Id. at pp. 5-6.) He also affirmed that his medications adequately addressed his conditions. (Id. at p. 6.) Judge Wood then asked Mr. East whether he had any difficulty in conversing with Williams. (Id.) Mr. East responded that he had not, that Williams had been very alert, that Williams had not exhibited any kind of erratic behavior during their conversations, that no court in Williams' extensive criminal history had ever declared him incompetent to stand trial, and that East did “not know of any reason other than having a mental condition whereby he would be unable to- to where he would be able to meet the criteria of some type of psychological defense.” (Id.) Williams then affirmed that he had not experienced any problem talking with his attorney. (Id.) When asked by Judge Wood to describe in his own words why the last proceeding was cut short, Williams responded, “Because I wasn't understanding [sic] the 15-year minimum.” (Id. at pp. 6-7.) He then stated that he understood it better after talking with Mr. East. (Id. at p. 7.)

         Judge Wood explained to Williams that he was presumed innocent and the Indictment was not evidence of his guilt. She also explained that he did not have to plead guilty, and if he chose to persist in his not guilty plea, he would have the right to: a public and speedy trial by jury; a presumption of innocence during that trial; the assistance of trial counsel; see, hear, confront, and cross-examine the Government's witnesses and evidence; call witnesses on his behalf; and testify himself or remain silent. (Id. at pp. 8-9.) Judge Wood cautioned Williams he would be waiving these rights if he pleaded guilty. (Id.) She explained that, if she accepted his guilty plea, there would be no right to trial of any kind, and that what would remain of his case would be the sentencing phase. (Id. at p. 9.)

         Williams stated he understood. (Id.) Williams also stated he and Mr. East reviewed the Indictment together, that he had the opportunity to talk to Mr. East about the facts of his case and the underlying conduct, as well as about the proposed plea agreement, and that Mr. East had discussed the law pertaining to his case. (Id. at pp. 9-10.) Williams specifically testified that he and Mr. East had multiple conversations about the possible penalties in his case. (Id. at p. 10.) Williams stated that he was satisfied with Mr. East's services and that he had no complaints about Mr. East whatsoever. (Id. at p. 11.)

         Judge Wood reviewed the applicable counts of the Indictment with Williams and discussed the essential elements of the crimes for which he was charged and what the Government would have to prove if he went to trial. (Id. at pp. 11-13.) Williams responded that he understood these elements and what the Government would have to prove if he went to trial. (Id.) Judge Wood advised Williams of the penalties she could impose on the Counts to which he was pleading guilty. (Id. at pp. 13-14.) Pertinently, she stated, “Mr. Williams, Count 1 carries what is called a mandatory minimum, and that means that if I accept your plea as to Count 1, I must sentence you to at least 15 years in prison as to Count 1. Do you understand that?” (Id. at p. 13.) Williams responded that he understood. (Id.) Moreover, Judge Wood explained to Williams that, in imposing a sentence upon him, she would have to take into consideration the advisory Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553. (Id. at pp. 14-15.)

         Williams stated that no one had promised him an exact sentence, and Judge Wood explained that anyone's estimation of what his sentence might be would in no way bind the Court. (Id. at p. 15.)

         Judge Wood affirmed with Williams that he had given Mr. East permission to negotiate a plea agreement with the Government. (Id. at pp. 15-16.) She then asked the Assistant United States Attorney (“AUSA”) to summarize the provisions of the plea agreement. AUSA Shane Mayes stated:

Your Honor, in summary, the plea agreement provides that the Defendant will plead guilty to Counts 1 and 3of the indictment. The Government will not object to a recommendation by the U.S. Probation Office that Mr. Williams receive a three-level reduction in the offense level for acceptance of responsibility pursuant to the sentencing guidelines.
The Government and the Defendant agree to recommend to the probation officer and the Court at sentencing that, for the purpose of the guidelines, the offense involved methamphetamine having a net weight of 9.91 grams.
The Defendant agrees to pay restitution for the full loss caused by his criminal conduct. At sentencing, the Government will move to dismiss any other counts of the indictment that remain pending against Mr. Williams.
Your Honor, the plea agreement provides the Government's standard direct appeal waiver and collateral attack waiver. Mr. Williams additionally waives all rights to request information under the Freedom of Information Act. Mr. Williams waives protections of Rule 11(f) of the Federal Rules of Criminal Procedure and Rule 410 of the Federal Rules of Evidence.

(Id. at pp. 16-17.) Judge Wood asked Williams if AUSA Mayes' summarization of the plea agreement was consistent with the plea agreement he signed, and he stated it was. (Id. at p. 17.)

         Williams also stated he read the plea agreement, and Mr. East answered any questions he may have had before he signed the agreement. (Id.) Williams reaffirmed that no one had made him any promises regarding the outcome of his case, other than the provisions contained in the plea agreement. (Id.)

         Judge Wood then specifically addressed the direct appeal waiver with Williams, stating the following:

I do want to pick back up on something that Mr. Mayes alluded to and that is, that this plea agreement that you're urging does contain waivers of certain appeal rights.
It states “Defendant entirely waives his right to a direct appeal of his conviction and sentence on any ground.” However, there are three exceptions to that waiver. That is, if one of these three things were to occur, then you do get a direct appeal right. Number 1, if I were to sentence you above the statutory maximum, then you could appeal that directly; or, Number 2, if I were to sentence you above the advisory guideline range as found by me, then you could appeal that directly. Or Number 3, if the Government were to file an appeal, you could appeal that directly. Do you understand?

(Id. at pp. 17-18.) Williams stated he understood the appeal waiver provision and that he had no questions regarding it. (Id. at p. 18.)

         Judge Wood also explained that the proposed plea agreement contained a waiver of certain of Williams' collateral attack rights. She explained:

It states “Defendant entirely waives his right to collaterally attack his conviction and sentence on any ground and by any method including but not limited to a 28 USC Section 2255 motion.”
Now, that waiver does contain one exception. The exception is that you may collaterally attack your conviction and sentence based on a claim of ineffective assistance of counsel.

(Id.) When asked if he understood the collateral attack waiver provision, Williams replied that he did and that he had no questions whatsoever about it. (Id. at pp. 18-19.)

         Judge Wood asked Mr. East and AUSA Mayes whether they were aware of any impropriety on the part of the Government in handling Williams' case, and they both responded no. (Id. at p. 19.) Judge Wood then asked Williams whether he wished to still plead guilty to Counts One and Three of the Indictment because he was in fact guilty of those Counts, and he answered in the affirmative. (Id.) Judge Wood also asked Williams whether he understood the rights and privileges he was waiving if she accepted his plea, and he said he did. (Id.) Judge Wood determined that Williams' decision to plead guilty was “knowing” and “voluntary.” (Id. at pp. 19-21.) Specifically, Judge Wood stated:

[Williams] has been diagnosed with bipolar disorder and schizophrenia, and because of that, I have paid particular attention to Mr. Williams as he's interacted with the Court today and on December 19th when he appeared before me last. According to him, he does take medication that addresses those issues and he is current on his medication. Nonetheless, I've carefully analyzed his behavior during court today and prior to.
I find specifically that he has an understanding of the case that's presently pending against him. He understands the essential elements that the Government would have to prove in ...

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