Raines v. United States

898 F.3d 680

Damon Tonyado RAINES, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 17-1457

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 31, 2018

ON BRIEF: Davin M. Reust, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee. Damon Tonyado Raines, Three Rivers, Texas, pro se.

Before: COLE, Chief Judge; GIBBONS and BUSH, Circuit Judges.

The court delivered a PER CURIAM opinion. COLE, C.J., (pp. 690–93), delivered a separate concurring opinion.

PER CURIAM.

Damon Tonyado Raines, a federal prisoner proceeding pro se, appeals a district court judgment denying his 28 U.S.C. § 2255 motion to vacate his sentence. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a).

In 2012, Raines pleaded guilty to one count of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count of possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The district court concluded that Raines was subject to a statutory minimum term of 180 months of imprisonment under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B), because he had three prior convictions for controlled substance offenses or violent felonies. Specifically, Raines had a 1991 Michigan conviction for assault with intent to do great bodily harm less than murder, a 2002 federal conviction for distributing cocaine base, and a 2002 federal conviction for collecting credit by extortionate means, in violation of 18 U.S.C. § 894(a)(1). The district court sentenced him to a total term of 180 months of imprisonment, and we affirmed.

On May 11, 2016, Raines filed a § 2255 motion to vacate, in which he argued that he should not have been sentenced as an armed career criminal because his 2002 convictions should have been counted as a single offense and he, therefore, did not have the requisite three predicate offenses. But Raines already raised that issue on direct appeal, and we affirmed, holding that his 2002 convictions were separate qualifying convictions because they arose from separate criminal episodes, even though both convictions were entered on the same day. United States v. Raines , Nos. 12-2431/12-2432 (6th Cir. June 11, 2013) (order).

Raines also challenges whether his prior convictions are violent felonies "after Johnson ," purporting to lodge a claim based on Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held the ACCA’s residual clause to be unconstitutionally vague. The district court denied Raines’s § 2255 motion, concluding that each of Raines’s predicate convictions qualified as either a serious drug offense or violent felony without reliance on the ACCA’s now-invalidated residual clause. Specifically, the district court held that Raines’s assault conviction qualified under the ACCA’s force clause, Raines’s drug-distribution conviction qualified as a serious drug offense, and Raines’s collecting-credit-by-extortion conviction qualified under the ACCA’s enumerated-crimes clause. Raines v. United States , No. 1:16-cv-498, 2017 WL 104093, at *2–3 (W.D. Mich. Jan. 11, 2017) ("[T]he 2002 conviction for collection of credit by extortionate means in violation of 18 U.S.C. § 894(a)(1) is a ‘violent felony’ because it is a crime of ‘extortion’ under 18 U.S.C. § 924(e)(2)(B)(ii).").

The district court denied Raines a certificate of appealability, but we granted one on the following issues: (1) whether Raines’s Johnson claim is properly before this court on appeal; and (2) whether Raines is entitled to relief based on Johnson because his 2002 conviction under 18 U.S.C. § 894(a)(1), for collecting credit by extortionate means, was counted as a violent felony under the ACCA’s now-invalidated residual clause. Raines v. United States , No. 17-1457 (6th Cir. Oct. 26, 2017) (order).

On appeal, Raines argues that the Johnson issue is properly before us and that we must review the merits of the district court’s decision. He also argues that his prior conviction for collecting credit by extortionate means in violation of § 894(a)(1) should not have been counted as a violent felony under the ACCA because it is not covered by the use-of-force clause and it is not equivalent to the generic crime of "extortion."

The government argues that Raines cannot claim an entitlement to relief under Johnson : because Raines’s sentencing record is silent as to which of the ACCA’s clauses the district court relied upon in treating his extortionate-collection charge as a violent felony, Raines cannot show that the district court relied specifically on the residual clause. The government argues that

it is not enough for a defendant seeking collateral relief simply to assert that his claim arises under Johnson ; he must show that more likely than not, he was sentenced as an armed career criminal based on the residual clause. E.g., Beeman v. United States , 871 F.3d 1215, 1224 (11th Cir. 2017) (defendant has the "burden of establishing that he, in fact, was sentenced as an armed career criminal ... solely because of the residual clause"); United States v. Snyder , 871 F.3d 1122, 1129 (10th Cir. 2017) (courts should take a "snapshot" of law at the time and find burden unsatisfied if there was no need to rely on residual clause at the time); but see United States v. Winston , 850 F.3d 677, 682 (4th Cir. 2017) (declining to impose burden on movants); United States v. Geozos , 870 F.3d 890, 895 (9th Cir. 2017) (same); cf. United States v. Taylor , 873 F.3d 476, 481 (5th Cir. 2017) (discussing but declining to decide burden issue).

Appellee’s Br. 11–12.

The cases cited by the government reflect a circuit split, which, at the time of the government’s filing of its brief, did not include our circuit. But we have since entered the fray, siding with the Tenth and Eleventh Circuits in putting a Johnson claimant up to the seemingly improbable task of proving that his sentencing judge "relied only on the residual clause in sentencing" him. Potter v. United States , 887 F.3d 785, 787 (6th Cir. 2018). See also Dimott v. United States , 881 F.3d 232, 234, 241–42 (1st Cir. 2018), pet. for cert. filed sub nom. Casey v. United States (U.S. Mar. 8, 2018) (No. 17-1251) (creating a three-way circuit split by dismissing petitioners' claims as "untimely" where they brought putative Johnson claims within one year of Johnson but could not "establish by a preponderance of the evidence ... that [their] ACCA sentence[s] rested on the residual clause"). This burden, of course, presents a tall order when a movant’s sentencing record (like Raines’s and Potter’s) is silent as to which ACCA clause a district court applied. And it makes sense that a movant’s sentencing record (like Raines’s) would be silent as to which specific ACCA clause was being applied when the sentence was handed down well before the Supreme Court’s decisions in Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), Johnson , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569, and Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). But see United States v. Quarles , No. 1:14-cr-29-RJJ, R.40 at 20 (W.D. Mich. Mar. 5, 2015) (transcript of sentencing hearing) (expressly relying on residual clause and declining to invoke enumerated-offenses clause while observing that the Supreme Court had granted certiorari in Johnson and opining that imposing an ACCA enhancement under both clauses might pose a "severance problem" in the event that the Court invalidates the residual clause).

Nevertheless, Potter is precedential, so we must determine whether it precludes Raines from asserting his Johnson claim. For two reasons, it does not.

First, Potter involved a movant on a second-or-successive motion for relief. Potter , 887 F.3d at 787. Such a movant faces a statutory hurdle that first-time movants do not face: the habeas statute "permits a second collateral attack only if it rests on new facts or ‘a new rule of constitutional law , made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.’ " Ibid. (citing 28 U.S.C. §§ 2255(h), 2244(b) ) (emphasis added). In Potter , we relied on that provision to hold that Potter could not base his entitlement to relief on Mathis , 136 S.Ct. 2243 (analyzing the ACCA’s enumerated-offenses clause), because " Mathis involved an old rule of statutory law, not a new rule of constitutional law." Potter , 887 F.3d at 788. The Supreme Court’s decision in Johnson did indeed announce a new rule of constitutional law retroactively applicable to cases on collateral review. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). But because Potter could not show that his second collateral attack rested solely on Johnson itself —that is, that the district court sentenced him based on the residual clause invalidated by Johnson and not, for example, based on an interpretation of the use-of-force clause or enumerated-offenses clause that a decision like Mathis may have called into question—Potter could not clear 28 U.S.C. § 2255(h) ’s statutory hurdle to raising that collateral attack in the first instance. That hurdle does not apply to Raines, whose first collateral attack may rest "upon the ground 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." 28 U.S.C. § 2255(a) (emphasis added).¹

Second, Potter ’s record was not entirely silent as to which clause the district court used to treat his prior burglary conviction as a violent felony under the ACCA. Indeed, Potter’s sentencing judge was the same judge who denied Potter’s ...