Godwin v. United States

JERALD DEAN GODWIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 2:16cv509-MHT (WO)

DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

February 28, 2020

OPINION

Petitioner Jerald Dean Godwin, a federal inmate, filed this lawsuit seeking habeas relief pursuant to 28 U.S.C. § 2255. He challenges his conviction and 84-month sentence for brandishing a firearm during and in relation to a "crime of violence," in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The petition challenges this conviction as unconstitutional in light of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015).

This lawsuit is now before the court on the recommendation of the United States Magistrate Judge that Godwin's petition be denied. Godwin objected to the recommendation, and the parties have filed additional briefing ordered by the court. After an independent and de novo review of the record, the court concludes that Godwin's objections should be overruled and the magistrate judge's recommendation adopted, albeit for somewhat different reasons.

I. BACKGROUND

In March 2010, Godwin pleaded guilty to both bank robbery, in violation of 18 U.S.C. § 2113(a), and brandishing a firearm during and in relation to a crime of violence, in violation of § 924(c)(1)(A)(ii). The predicate "crime of violence" underlying the firearm-brandishing conviction was the bank robbery. The district court sentenced him to 70 months in prison for the bank robbery, plus a consecutive 84 months for the firearm conviction.

In June 2016, Godwin filed a motion requesting that his § 924(c) firearm conviction and sentence be vacatedbased on the Supreme Court's decision in Johnson. The magistrate judge construed this motion as a motion to alter, amend or vacate the judgment pursuant to 28 U.S.C. § 2255. The magistrate judge recommended denying the petition and dismissing the case with prejudice. Godwin timely objected to the recommendation.

II. DISCUSSION

Godwin challenges his conviction for violating § 924(c), a statute that criminalizes the use, carrying, possession, or brandishing of a firearm in connection with a "crime of violence."¹Section 924(c) defines a "crime of violence" as "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."

18 U.S.C. § 924(c)(3). Subpart A is frequently referred to as the "elements clause" and subpart B the "residual clause." See, e.g., United States v. Davis, 139 S. Ct. 2319, 2324 (2019).²

Godwin argues that his § 924(c) firearm conviction is invalid because the statute's residual clause is unconstitutionally vague in light of Johnson. Johnson involved a challenge to a sentence under a different statute, the Armed Career Criminal Act (ACCA), whichestablishes an enhanced mandatory-minimum sentence when a defendant convicted of being a prohibited person in possession of a firearm has three or more prior convictions for a "serious drug offense" or a "violent felony." 18 U.S.C. § 924(e). The ACCA defines the term "violent felony" in part as an offense that 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)(ii) (emphasis added.) The Supreme Court held that the italicized phrase, referred to as the "residual clause," is unconstitutionally vague under the due process clause of the Fifth Amendment. Johnson, 135 S. Ct. at 2555-2560, 2563.

Godwin contends that the Court's decision in Johnson renders unconstitutional the similarly worded residual clause in the definition of "crime of violence" in § 924(c), the statute criminalizing theuse, carrying, possession, or brandishing of a firearm during a crime of violence. Three years after Godwin filed his habeas petition, the Supreme Court agreed: In United States v. Davis, the Court extended its ruling in Johnson and held that § 924(c)'s residual clause, like the ACCA's residual clause, is unconstitutionally vague. 139 S. Ct. at 2325-2333, 2336.

Since Davis announced a new substantive rule, see In re Hammoud, 931 F.3d 1032, 1038 (11th Cir. 2019), it applies retroactively to cases on collateral review, such as this one, see Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004) (explaining that new substantive rules apply retroactively on collateral review); see also Welch v. United States, 136 S. Ct. 1257, 1268 (2016) (concluding "that Johnson announced a substantive rule that has retroactive effect in cases on collateral review."). The upshot is that Godwin's bank-robbery conviction does not qualify as a crime ofviolence under § 924(c)'s residual clause, because Davis voided that clause for vagueness.

A. § 924(c)'s Residual Clause

Still, the success of Godwin's residual-clause argument is not enough to invalidate his conviction for brandishing a firearm during a crime of violence. To succeed, he must show that "his § 924(c) conviction resulted from application of solely the residual clause." Hammoud, 931 F.3d at 1041 (citations omitted).

He may make this showing in two ways. First, he "may rely on the relevant record," Weeks v. United States, 930 F.3d 1263, 1273 (11th Cir. 2019), to show "that--more likely than not--it was use of the residual clause that" was the basis for the firearm conviction. Beeman v. United States, 871 F.3d 1215, 1222 (11th Cir. 2017). Godwin concedes that the record of proceedings in the trial court "is silent" as to whether hisconviction was based on the residual clause. Petitioner's Second Supplemental Brief (doc. no. 43) at 7-8. Nothing in the indictment, plea agreement, presentence investigation report, judgment, or transcripts suggests reliance on either the residual clause or the elements clause of § 924(c). Godwin's argument fails to this extent, for "[i]f it is just as likely that the sentencing court relied on the elements ... clause, solely or as an alternative basis for the [conviction]..., then the movant has failed to show that his [conviction] ... was due to use of the residual clause." Beeman, 871 F.3d at 1222.

Alternatively, to prevail, Godwin may rely "on legal precedent at the relevant time 'holding, or otherwise making obvious, that a violation [of the relevant ... criminal statute] qualified as a violent felony only under the residual clause.'" Weeks, 930 F.3d at 1273 (quoting Beeman, 871 F.3d at 1224). It must be kept in mind that the holding of a case isquite narrow and fact-specific. See United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) ("We have pointed out many times that regardless of what [our] court says in its opinion, the decision can hold nothing beyond the facts of that case." (citation and internal quotations omitted.)). Also, and critically, this inquiry is "a historical" one. Beeman, 871 F.3d at 1224 n. 5. "[I]f the law was clear at the time of sentencing that only the residual clause would authorize a finding that the prior conviction was a violent felony, that circumstance would strongly point to a sentencing per the residual clause."³ Id. A laterdecision about the law as it stands currently would "cast[] very little light" on the "question of historical fact." Id.

Godwin has failed to identify the required legal precedent. He was convicted in June 2010, and he has not identified any law, as of that date, "holding, or otherwise making obvious, that a violation [of the bank robbery statute under which he was convicted] qualified as a violent felony only under the residual clause." Id. at 1224.

B. § 924(c)'s Elements Clause

Godwin nevertheless attempts to establish that his firearm-brandishing conviction rested on the residual clause by showing that his conviction could not rest on the elements clause. His argument is essentially that, because there are only two ways to establish a crime ofviolence under § 924(c)--the elements clause and the residual clause--"disproving one is necessarily proof of the other." Beeman, 871 F.3d at 1230 (Williams, J., dissenting). Because Godwin's argument, although foreclosed by binding circuit law as shown later, has some plausibility, the court will set it forth in some detail.

To begin, it is helpful to understand the approach that applies when determining whether an offense constitutes a crime of violence under § 924(c) and similar statutes. Whether a particular offense constitutes a crime of violence under § 924(c)'s elements clause is a question of law that a court "must answer 'categorically'--that is, by reference to the elements of the offense, and not the actual facts of [a defendant's] conduct." United States v. McGuire, 706 F.3d 1333, 1336-37 (11th Cir. 2013), overruled on other grounds by Ovalles v. United States, 905 F.3d 1231, 1234 (11th Cir. 2018) (en banc), abrogated on othergrounds by Davis, 139 S. Ct. at 2325-33. Accordingly, the question is whether a given statute of conviction "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." McGuire, 706 F.3d at 1336 (quoting 18 U.S.C. § 924(c)(3)(A)). "Only if the plausible applications of the statute of conviction all require the use or threatened use of force can [a defendant] be held guilty of a crime of violence" under the elements clause. Id. at 1337 (emphasis added).

Put differently, a conviction does not categorically qualify as crime of violence under § 924(c)'s elements clause if there is a "realistic probability" that the statute of conviction would apply to conduct that does not involve the use, attempted use, or threatened use of physical force. Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)); accord United States v....