Goins v. United States

CHRISTOPHER HAROLD GOINS, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 7:10-CR-107-FL-1

No. 7:16-CV-95-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION

February 2, 2017

ORDER

This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 52), which challenges petitioner's Armed Career Criminal Act (ACCA) sentencing enhancement in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 58). The issues raised are ripe for ruling. For the reasons that follow, the court denies petitioner's motion and grants the government's motion.

BACKGROUND

The government filed an indictment in this case on September 15, 2010, charging petitioner with one count of felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924, and one count of possession of a stolen firearm, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). The indictment charged that petitioner had at least three previous convictions for violent felonies, as defined in 18 U.S.C. § 924(e)(2)(B). On January 12, 2011, defendant pleaded guilty without a plea agreement to both counts.

Prior to sentencing, the United States Probation Office prepared and published a Presentence Investigation Report ("PSR"), which describes in detail petitioner's background, including his criminal history. Based on petitioner's criminal history, the PSR determined that petitioner was an "armed career criminal" and that his statutory minimum sentence was 15 years, under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). (DE 27, ¶¶ 44, 48-49). In petitioner's criminal history, the PSR identified one North Carolina felony conviction for "breaking and entering," one North Carolina felony conviction for "Assault With a Deadly Weapon Inflicting Serious Injury," one North Carolina felony conviction for "Assault With a Deadly Weapon With Intent to Kill or Inflict Serious Injury," and one North Carolina felony conviction for "Assault With a Deadly Weapon With Intent to Kill Inflicting Serious Injury." (Id. ¶¶ 10, 15, 17, 18).¹

The court sentenced petitioner on April 1, 2011, to a term of imprisonment of 240 months, adopting the PSR without change, and upwardly departing on the basis of criminal history inadequacy, pursuant to U.S.S.G. § 4A1.3. (See DE 33, 34). Petitioner appealed, and the Fourth Circuit affirmed and remanded for correction of the written judgment to specify that petitioner's federal sentence shall be served concurrently with any not-yet-imposed state sentence involving the same firearm. The court amended its judgment accordingly on June 8, 2012.

Petitioner filed the instant motion to vacate on May 6, 2016, arguing that he can no longer be classified as an Armed Career Criminal because he does not have qualifying predicate convictions following Johnson. The government moves to dismiss on the basis that petitionerqualifies as an Armed Career Criminal on the basis of petitioner's convictions for breaking and entering, assault with a deadly weapon with intent to kill or inflict serious injury, and assault with a deadly weapon with intent to kill inflicting serious injury. In response, petitioner contends that the assault convictions do not constitute predicate convictions for purposes of the ACCA.

On December 8, 2016, the court held in abeyance ruling on the instant motions and directed the government to file further documentation regarding the nature of petitioner's prior conviction denominated in the PSR as "assault with a deadly weapon with intent to kill or inflict serious injury." (PSR ¶ 17). The United States Probation Office provided said documentation to the court on December 15, 2016, and the government filed the same on February 1, 2017. (See DE 65). Defendant filed a response reiterating his position that none of the assault convictions constitute predicate convictions for purposes of the ACCA.

COURT'S DISCUSSION

A. Standard of Review

A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." § 2255(b).

B. Analysis

1. Breaking and Entering

Johnson invalidated the "residual clause" contained in the definition of "violent felony" in the ACCA. 135 S.Ct. at 2555-56, 2563 (quoting 18 U.S.C. § 924(e)(2)(B)). Johnson, however, "does not call into question application of the [ACCA] to the four enumerated offenses or the remainder of the [ACCA's] definition of a violent felony." Id. at 2563. One of those enumerated offenses that constitutes a "violent felony" under the ACCA is "burglary." 18 U.S.C. § 924(e)(2)(B)(ii). It is well-established in this circuit that the North Carolina offense of breaking and entering qualifies as burglary. See United States v. Mungro, 754 F.3d 267, 272 (4th Cir. 2014). Accordingly, Johnson has no impact on the status of petitioner's breaking and entering conviction as an Armed Career Criminal predicate.

2. Assault With a Deadly Weapon With Intent to Kill Inflicting Serious Injury

The court turns next to the government's contention that petitioner's prior conviction for "Assault With a Deadly Weapon With Intent to Kill Inflicting Serious Injury" set forth at paragraph 18 of the PSR (hereinafter "AWDWIKISI"), constitutes a "violent felony" under the ACCA.²

Before Johnson, the Fourth Circuit regularly held or stated that various North Carolina assault with deadly weapon convictions constituted violent felonies under the ACCA, either based upon the residual clause or without discussing in isolation the remainder of the ACCA definition of "violent felony." See, e.g., United States v. Boykin, 669 F.3d 467, 469 (4th Cir. 2012) (stating predicate conviction for "assault with a deadly weapon inflicting serious injury" is a violent felony for purposes of the ACCA); United States v. Williams, 187 F.3d 429, 430 (4th Cir. 1999) (holdingthat "assault with a deadly weapon with the intent to kill" is a violent felony under the ACCA); see also United States v. Brady, 438 F. App'x 191, 193 (4th Cir. 2011) (holding that "assault with a deadly weapon inflicting serious injury" is a violent felony under the ACCA); United States v. Harris, 458 F. App'x 297, 300 (4th Cir. 2011) (holding that "assault with a deadly weapon on a government official" is an ACCA predicate).

Where the residual clause of the ACCA now is unavailable after Johnson, the government contends that AWDWIKISI constitutes a violent felony instead under the "use of force" provision of the ACCA. Under the "use of force" provision, a prior conviction may count as a "violent felony" under the ACCA if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). "Use of physical force" against another requires "a higher degree of intent than negligent or merely accidental conduct." Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). Likewise, mere "[r]ecklessness, like negligence, is not enough to support a determination that a crime is a 'crime of violence.'" United States v. Vinson, 805 F.3d 120, 125 (4th Cir. 2015) (quotations omitted); see also United States v. Travis, 149 F. Supp. 3d 596, 599 (E.D.N.C. 2016) ("defendant must have purposefully or knowingly applied the requisite force against his victim; negligently or recklessly applied force falls outside the scope of the 'use of physical force' provision"). In addition, "the phrase 'physical force' means violent force - that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010).

To determine if petitioner's AWDWIKISI conviction constitutes a "violent felony" under the "use of force" provision, the court must apply "the familiar categorical approach," under which the court must "look only to the fact of conviction and the statutory definition of the prior offense,focusing on the elements of the prior offense rather than the conduct underlying the conviction." Vinson, 805 F.3d at 123 (internal quotations omitted). In analyzing the elements of the offense at issue, the court may look also to relevant interpretations of the offense by the North Carolina Supreme Court. See id. at 125. The court may also consider the North Carolina pattern jury instructions. See id. at 126; United States v. Gardner, 823 F.3d 793, 802-803 (4th Cir. 2016).

The statute criminalizing AWDWIKISI states that "Any person who assaults another person with a deadly weapon with intent to kill and inflicts serious injury shall be punished as a Class C felon." N.C. Gen. Stat. § 14-32(a). "The elements of assault with a deadly weapon with intent to kill inflicting serious injury are: (1) an assault, (2) with the use of a deadly weapon, (3) with an intent to kill, and (4) inflicting serious injury, not resulting in death." State v. Tirado, 358 N.C. 551, 579 (2004) (citing N.C. Gen. Stat. § 14-32(a)); see N.C. Pattern Instructions - Crim. 208.10 (same elements).

A conviction of the AWDWIKISI offense "requires proof of a specific intent or mental state." State v. Tate, 294 N.C. 189, 196 (1978) (quotations omitted); see State v. Irick, 291 N.C. 480, 502 (1977) (stating that AWDWIKISI is "a specific intent crime"). Thus, "a specific intent to kill [is] a necessary element in the proof" of an AWDWIKISI conviction, and it...