Richardson v. United States

ROBERT RICHARDSON, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 3:16-cv-1779-K

No. 3:09-cr-108-K-1

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

July 25, 2019

MEMORANDUM OPINION AND ORDER

Movant Robert Richardson, a federal prisoner, filed, through court-appointed counsel, a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Dkt. No. 1. The government filed a response opposing relief, see Dkt. No. 6, and Richardson has filed a reply brief, see Dkt. No. 9. The Court DENIES the Section 2255 motion for the following reasons.

Richardson pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). And, under the Armed Career Criminal Act (the "ACCA"), he was sentenced, on September 14, 2011, to the statutory minimum of 180 months of imprisonment. See United States v. Richardson, No. 3:09-cr-108-K-1 (N.D. Tex.).

He now collaterally challenges the applicability of the ACCA to his sentence under Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). As recounted in that decision,

Federal law forbids certain people - such as convicted felons, persons committed to mental institutions, and drug users - to ship, possess, and receive firearms. § 922(g). In general, the law punishes violation of this ban by up to 10 years' imprisonment. § 924(a)(2). But if the violator has three or more earlier convictions for a "serious drug offense" or a "violent felony," the [ACCA] increases his prison term to a minimum of 15 years and a maximum of life. § 924(e)(1); Curtis Johnson v. United States, 559 U.S. 133, 136 (2010). The Act defines "violent felony" as follows:

"any crime punishable by imprisonment for a term exceeding one year ... 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." § 924(e)(2)(B) (emphasis added).

The closing words of this definition, italicized above, have come to be known as the Act's residual clause.

135 S. Ct. at 2555-56 (citation modified).

In Johnson, the Supreme Court held "that imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." Id. at 2563. The decision thus "affected the reach of the [ACCA] rather than the judicial procedures by which the statute is applied" and therefore is "a substantive decision and so has retroactive effect under Teague[ v. Lane, 489 U.S. 288 (1989),] in cases on collateral review." Welch v. United States, 136 S. Ct. 1257, 1265 (2016). But Johnson did "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." 135 S. Ct. at 2563.

A Johnson claim under Section 2255 thus requires that a movant show that hisconstitutional right to due process was violated—or that he was sentenced in excess of the maximum authorized by law (for example, that he received a minimum sentence of 15 years under Section 924(e), as opposed to a maximum sentence of 10 years under Section 924(a)(2))—because he was sentenced under the ACCA's residual clause. And the United States Court of Appeals for the Fifth Circuit, "join[ing] the majority of [its] sister circuits," has held that a court "must look to the law at the time of sentencing to determine whether a sentence was imposed" in violation of Johnson—that is, it was imposed under the ACCA's residual clause, as opposed to its enumerated offense clause or its force clause. United States v. Wiese, 896 F.3d 720, 724 (5th Cir. 2018) (collecting cases); see also id. at 725 (noting that, "[i]n determining potential reliance on the residual clause by the sentencing court," a reviewing court "may look to (1) the sentencing record for direct evidence of a sentence, and (2) the relevant background legal environment that existed at the time of the defendant's sentencing and the presentence report ('PSR') and other relevant materials before the district court" (citations, internal quotation marks, and brackets omitted)).

Prior to his conviction in this Court, Richardson was convicted of murder in Dallas County. See State v. Richardson, No. F05-19422 (194th Jud. Dist. Ct., Dallas Cnty., Tex.); Richardson, No. 3:09-cr-108-K-1, Dkt. No. 80-1 at 21-43 (relevant charging documents, written plea agreements, judicial confessions, and criminal judgment included in the PSR). Richardson fired multiple rounds through the door of the victim's residence, killing the victim.

And, also in Dallas County, he was twice convicted of aggravated assault with a deadly weapon. See State v. Richardson, Nos. F03-19397 & -19398 (194th Jud. Dist. Ct., Dallas Cnty., Tex.); Richardson, No. 3:09-cr-108-K-1, Dkt. No. 80-1 at 21-43 (relevant charging documents, written plea agreements, judicial confessions, and criminal judgment included in the PSR). As to the first aggravated-assault conviction, Richardson threatened the victim with bodily injury by using or exhibiting a firearm. As to the second, he shot the victim with a firearm during the commission of an assault.

Taking the aggravated-assault predicates first, a conviction for aggravated assault under Texas law requires that a person commit "assault as defined in [Texas Penal Code] Section 22.01 and the person: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault." TEX. PENAL CODE § 22.02(a). And the United States Court of Appeals for the Fifth Circuit recently concluded "that Texas aggravated assault is a violent felony under the ACCA." United States v. Combs, ___ F. App'x ___, No. 16-11402, 2019 WL 2450898, at *2 (5th Cir. June 11, 2019) (per curiam); see also id. at *1 (noting that the Court of Appeals previously "determined that the Texas assault statute is divisible—that is, each subsection of this assault statute contains 'independent groups of elements for committing multiple crimes'" and thus allows a court to apply "the modified categorical approach" (quoting in United States v. Albin Torres, 923 F.3d 420, 425 (5th Cir. 2019))).

To reach its conclusion, the Fifth Circuit panel in Combs relied on the ACCA'sforce clause, Section 924(e)(2)(B)(i), see 2019 WL 2450898, at *1, observing that "[t]he Supreme Court has stated that 'physical force' in this provision means 'violent force—that is, force capable of causing physical pain or injury to another person,'" id. (quoting Curtis Johnson, 559 U.S. at 140). Thus, Combs relies on a Supreme Court precedent in place when Richardson was sentenced in September 2011 and further affirms then-existing Fifth Circuit precedent placing Texas aggravated assault within the ACCA's force clause. See United States v. Martinez, 962 F.2d 1161, 1168-69 (5th Cir. 1992) ("[T]he offense of [Texas] aggravated assault ... require[s] proof of the use or threat of use of physical force." (footnote omitted)); see also United States v. Shelton, 325 F.3d 553, 561 (5th Cir. 2003) (holding that, because Texas "misdemeanor assault requires bodily injury it includes as an element the use of physical force").

As such, looking to the law in place when Richardson was sentenced—particularly the Curtis Johnson definition of "physical force"—Richardson has not shown by a preponderance of the evidence, see Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980); United States v. Bondurant, 689 F.2d 1246, 1251 (5th Cir. 1982); United States v. Clay, 921 F.3d 550, 559 (5th Cir. 2019), that the Court relied on the residual clause to find that his Texas aggravated assault convictions qualified as ACCA predicates.

The Shepard documents included in Richardson's PSR concerning the aggravated assault convictions also support this conclusion—that these crimes fit under the ACCA's force clause. See Wiese, 896 F.3d at 725; Shepard v. United States, 544 U.S. 13,16, 20-21 (2005).

Further, even if Richardson could show that the Court relied on the residual clause in 2011, given the current law in this circuit—that Texas aggravated assault remains a violent felony under the ACCA—as explained in Combs, Richardson would be unable to show prejudice. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht in a Section 2255 proceeding); see, e.g., Van Cannon v. United States, 890 F.3d 656, 661-62 (7th Cir. 2018) (where "[t]he government confessed the Johnson error," "[t]he only remaining dispute concerned the question of prejudice," and during that dispute, a movant is "entitled to show that under current caselaw, one or more of [his] remaining predicates could not be counted" (citation omitted)); Monroe v. United States, No. 3:16-cv-1693-G-BK, 2019 WL 1930139, at *3 (N.D. Tex. Apr. 9, 2019) ("[E]ven if the sentencing Court had relied on the ACCA's residual clause—thus implicating Johnson—Monroe cannot demonstrate prejudice because as the law currently stands, his two Texas aggravated assault convictions are still viewed as crimes of violence under the force clause." (citations omitted)), rec. adopted, 2019 WL 358509, at *1 (N.D. Tex. Jan. 29, 2019).

Turning to the murder predicate, a person commits murder in Texas "if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual; or

(3) commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits orattempts to commit an act clearly dangerous to human life that causes the death of an individual.

TEX. PENAL CODE § 19.02(b).

The Court was unable to...