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United States v. Winston

United States District Court, W.D. Virginia, Charlottesville Division

September 16, 2016

United States of America,
v.
Robert McKinley Winston Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON UNITED STATES DISTRICT JUDGE

         This habeas case is before the Court in an unusual posture. Citing Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”), Defendant filed his petition on February 10, 2016, which the parties briefed. (Dkts. 58, 62, 64). I issued an opinion (dkt. 65, available at 2016 WL 2757451 (W.D. Va. May 11, 2016)) and an order denying Defendant's petition, but I also granted a certificate of appealability. (Dkts. 66, 67). Before the judgment became final, Defendant moved for reconsideration in light of intervening precedent. (Dkt. 68). The parties briefed that motion (dkts. 73, 74), which I denied. (Dkt. 76, available at 2016 WL 3963234 (W.D. Va. July 21, 2016); dkt. 77 (Order)). Defendant timely noted an appeal.

         The appeal presented an important post-Johnson II question: Does Virginia robbery qualifies as a violent felony under the Armed Career Criminal Act (“ACCA”)? Expedited briefing in the Fourth Circuit occurred, oral argument was scheduled, and other cases were held in abeyance pending a decision. But it was discovered-for the first time on appeal-that Defendant had filed a prior § 2255 petition, a fact not apparent from the criminal docket in this case. Thus, the February 10th petition had not received pre-filing approval from the Court of Appeals, which meant this Court and the Fourth Circuit lacked jurisdiction. See 28 U.S.C. § 2255(h). On a joint motion, the Fourth Circuit dismissed the petition but treated the notice of appeal as a request to file a successive petition, which it granted. (Dkt. 83). The Fourth Circuit, however, retained the oral argument date for October 27, 2016, so it could move forward with an appeal from this Court's eventual ruling on the now-authorized petition, which Defendant filed on September 12, 2016. (Dkt. 88).

         Upon request of the parties (dkts. 86, 87, 88), the Court will incorporate and adopt the parties' prior submissions pertaining to the February 10th petition. All arguments raised therein are considered preserved. Relatedly, the Court will adopt and incorporate its prior opinions and orders. For the reasons stated in those filings, the Court will deny Defendant's September 12th petition and grant the Government's motion to dismiss. For completeness of the record on appeal, the Court also considers (and rejects) an argument the Government asserts is a threshold bar to considering a successive habeas petition.

         I. Adoption of Prior Submissions

         Because the February 10th petition was unauthorized, the submissions, opinions, and orders pertaining to it were a nullity for lack of jurisdiction. So the parties ask that their prior submissions be adopted and deemed applicable to the instant petition. The Court will oblige.

         II. Consideration of Requirements for Successive Petitions in 28 U.S.C. § 2244

         There remains, however, a (slightly) new argument that the Court must consider. The Government observes that “Winston is now in a different procedural posture than it was understood he was when his Petition was initially considered by the Court.” (Dkt. 86 at 2). Section 2244(b)(4) of Title 28 instructs that a district court “shall dismiss any claim presented in a second or successive application that the court of appeal has authorized to be filed unless the applicant shows that the claim satisfies the requirements” elsewhere found in § 2244. The Government argues Defendant cannot satisfy the requirement in § 2244(b)(2)(A) that his claim “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously available.” (emphasis added). It contends that Defendant's petition turns “entirely” on a statutory interpretation case regarding the ACCA's force clause, Johnson v. United States, 559 U.S. (2010) (“Johnson I”), not on Johnson II.

         A. The Court's Prior Rulings Reject the Government's Position

         Although not presented with the identical legal issue, my May 11th opinion explained, in rejecting the Government's statute of limitations defense, why Defendant's petition in fact relies on Johnson II. (Dkt. 65). In surveying the ACCA, Johnson I, and Johnson II, I observed that the petition “depends upon the interplay of Johnson I and Johnson II.” (Id. at 3 (emphasis added); see id. at 4 (petition “does not rest on Johnson I or II independently, but on them together . . .”). This is so because Johnson II eliminated an escape-hatch-that is, a statutory hook on which the Government otherwise could have hung Defendant's ACCA enhancement if robbery did not satisfy the force clause. (Id. at 5-6 & n.2). As numerous post-Johnson I, pre-Johnson II appellate cases make clear (id. at 6 n.2), the Government frequently and successfully used the residual clause in precisely that way, a point which meant that Defendant had no reason to bring a futile petition prior to Johnson II. Thus, the decision in Johnson II afforded Defendant an avenue of relief that was previously unavailable to him, and his petition utilizes that decision.[1]

         As stated above, the Court adopts its prior reasoning. It also adds three bases for its conclusion in Parts II.B-D.

         B. The Plain Text of § 2244(b)(2) Does Not Support the Government's Position

         “We begin, as always in deciding questions of statutory interpretation, with the text of the statute.” Othi v. Holder, 734 F.3d 259, 265 (4th Cir. 2013). In so doing, the Court applies “the fundamental canon of statutory construction that words will be interpreted as taking their ordinary, contemporary, common meaning.” United States v. Serafini, 826 F.3d 146, 149 (4th Cir. 2016) (internal quotations omitted).

         Section 2244(b)(4) requires dismissal of this petition if other requirements in 28 U.S.C. § 2244 are not met. The Government points to § 2244(b)(2)(A), which states:

A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless . . . the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

(emphasis added). The Government contends Defendant's “claim is rooted entirely in the application of” Johnson I, and “thus does not rely upon a new rule of constitutional law.” (Dkt. 86 at 2).

         Here, the critical word in the statute is “relies.” See In re Hubbard, 825 F.3d 225, 229 (4th Cir. 2016) (placing emphasis on that portion of statute). The Government's position is that § 2244(b)(2)(A) requires that Defendant's petition must rest squarely and solely on Johnson II. If Johnson I plays any role, so the argument goes, the petition must be dismissed.

         “Rely” is defined as: “to be dependent [on], ” Merriam Webster's Collegiate Dictionary (10th ed. 1993); “to trust or depend” upon, Webster's New World Dictionary (1983), or; “to find support: depend, ” Webster's Third New International Dictionary. While these definitions include the notion of dependence, they do not connote exclusivity: Reliance on one thing does not foreclose reliance on another, even regarding the same objective. A person relies on his car to get to work, but he might also rely on other methods at times (e.g., bus, train). And even when he relies on his car, he also (whether ...


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