Watford v. Ormond

JOHN JOSE WATFORD PETITIONER v. J. RAY ORMOND, Warden RESPONDENT

CIVIL ACTION NO. 17-322-DLB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION AT LONDON

August 30, 2020

MEMORANDUM OPINION AND ORDER*** *** *** ***

Inmate John Jose Watford filed an original and two amended petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 to challenge the enhancement of his federal sentence. (Docs. # 1, # 11, and # 13). The Court previously determined that Watford's claims were not cognizable in habeas and denied the petition upon initial review. (Doc. # 15). On appeal, the Sixth Circuit granted the warden's motion to remand the case for reconsideration. See (Doc. # 31). Upon remand the Court appointed counsel for Watford and ordered further briefing. (Doc. # 33). That briefing has been completed, (Docs. # 39, # 43, and # 46), and this matter is therefore ripe for decision.

I.

In September 1997 Watford was convicted on federal charges of committing three armed bank robberies in Indiana in April and May of that year. (Doc. # 41 at 3-4). The presentence report concluded that Watford qualified as a career offender pursuant to U.S.S.G. § 4B1.1 (Nov. 1, 1997) because he had two prior convictions for a "crime of violence." Specifically, Watford had a 1990 conviction in Florida for burglary of a dwelling pursuant to Fla. Stat. § 810.02(3) and a 1994 conviction in Pennsylvania for aggravated assault pursuant to 18 Pa. Cons. Stat. § 2702(a)(4). (Doc. # 41 at 9-13). As a result, Watford faced an imprisonment range of 262 to 327 months pursuant to the Sentencing Guidelines for his three convictions under 18 U.S.C. § 2113(d). In February 1998, the trial court sentenced Watford to 262 months imprisonment for that offense. That nearly 22-year sentence was at the very bottom of the applicable guidelines range¹ and below the 25-year statutory maximum for a single conviction (let alone three) under § 2113(d).² When added to a mandatory 540-month sentence for his three separate convictions under 18 U.S.C. § 924(c), Watford received a combined 802-month sentence. United States v. Watford, No. 3: 97-CR-26(2)-RLM (N.D. Ind. 1997) (Docs. # 27, # 61, # 99, and # 101 therein).

In his original § 2241 petition before this Court, Watford claimed entitlement to relief under Mathis v. United States, 136 S. Ct. 2243 (2016). He asserted that the two predicate offenses used to label him a career offender "sweep categorically broader than the federal generic definition" because (i) Florida's burglary statute covers not only burglary of a building but of its curtilage, and (ii) Pennsylvania's aggravated assaultstatute criminalizes not just intentional but reckless conduct as well. (Doc. # 1 at 5) (cleaned up). Watford's first and second amended petitions referenced Begay v. United States, 553 U.S. 137 (2008) and Descamps v. United States, 570 U.S. 254 (2013), but did not argue additional grounds for relief beyond the overbreadth argument he made in his original petition. See (Docs. # 11 at 3, 5 and # 13 at 5).³

Upon initial review of his petition, the Court first concluded that while Watford referenced Descamps and Mathis, he was actually asserting overbreadth claims under Taylor v. United States, 495 U.S. 575 (1990). Because Watford did not actually make a claim under Mathis or Descamps by asserting that the trial court had incorrectly treated the Florida and Pennsylvania statutes as divisible, he could not pursue his claims under § 2241. (Doc. # 15 at 5). In the alternative, the Court concluded that because Mathis and Descamps did not interpret the statutes under which Watford was convicted, but instead merely clarified the judicially-crafted process by which his prior offenses were evaluated as possible predicate offenses for purposes of enhancing his sentence, under Hill v. Masters, 836 F.3d 591 (6th Cir. 2016), Watford could not invoke those decisions as grounds for relief from his sentence in a § 2241 petition. (Doc. # 15 at 4-5, 5-6).⁴

Watford appealed to the United States Court of Appeals for the Sixth Circuit. (Doc. # 18). In his pro se appellate brief, as well as two supplements, Watford essentially re-asserted the same grounds for relief under Taylor. Watford v. Ormond, No. 18-5328 (6th Cir. 2018) (Docs. # 15, # 16, and # 17 therein) (from now on, "on appeal"). Upon its own motion the Sixth Circuit appointed counsel to represent Watford. (Doc. # 21 (on appeal)). In his counseled brief, Watford did not mention this Court's first ground for decision and challenged only the second. See (Doc. # 30 (on appeal) at 22). And like Watford's pro se petitions in this Court and the pro se brief he filed in the Sixth Circuit, his counseled brief mentioned Mathis and Descamps, but argued only that the state statutes under which he was convicted were broader than their generic counterparts, a contention that has been available to Watford since Taylor was decided in 1990. (Doc. # 30 (on appeal) at 40-42).

In response, the warden filed a motion to remand the case. Like Watford, the warden omitted any reference to the Court's first basis for decision. With respect to the second, the warden conceded without explanation that Watford's claim satisfied the Hill criteria. (Doc. # 31 (on appeal)). The Sixth Circuit granted that motion, stating:

Ormond concedes that under Hill v. Masters, 836 F.3d 591, 592 (6th Cir. 2016), a prisoner who otherwise meets Hill's requirements may rely on Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 136 S. Ct. 2243 (2016), to challenge his career offender sentence enhancement in a § 2241 petition. We agree with Ormond that the district court should consider in the first instance whether Watford can demonstrate that his prior convictions no longer qualify as crimes of violence. The district court's consideration on remand will be limited to Watford's 1990 Florida conviction for burglary of a dwelling and his 1994 Pennsylvania conviction for aggravated assault.⁵ (emphasis added)

(Doc. # 35-2 (on appeal) at 1). Following remand, the Court appointed counsel to represent Watford in these proceedings. See (Doc. # 33; docket entries for July 31, 2019). The parties have briefed the issues upon remand. (Docs. # 39, # 43, and # 46).

II.

As a preliminary matter, the Court must ascertain the scope of the Sixth Circuit's remand, as its Order is not entirely clear on the point. In the first sentence of its Order, the Sixth Circuit notes that the warden conceded that Mathis and Descamps satisfy Hill's cognizability requirements. Notably, however, the Sixth Circuit neither expressly accepted that concession nor directed this Court to do so. Instead, the second and thirdsentences of the Sixth Circuit's Order merely direct this Court to make the substantive determination whether Watford's prior convictions are for "crimes of violence," something it can do independently of the procedural issue.

The Court readily acknowledges that the Sixth Circuit's Order is at least amenable to a more restrictive reading regarding the scope of remand. However, two considerations counsel against deciding only the substantive issue without addressing the threshold procedural one. First, as noted above both Watford and the warden failed to recognize the Court's first basis for denying Watford's petition: that his claims were not (and still are not) in fact based upon either Mathis or Descamps. See (Doc. # 15 at 4-5). As a result, neither party informed the Sixth Circuit of that fact. Indeed, that oversight appears to have prompted the warden's motion to remand and caused the Sixth Circuit to grant it. Second, the Court may address the cognizability issue in addition to, and entirely independently of, the merits determination. Therefore, deciding that issue should not hamper appellate review of the merits determination even if the Sixth Circuit later determines that the cognizability question was intended to be outside the scope of remand. The Court will therefore discuss both issues.

A.

The Court previously held, contrary to the prevailing view, that neither Descamps nor Mathis qualify as a "case of statutory interpretation" as that phrase is used in determining whether a petitioner may seek relief under § 2241 via the "savings clause" found in 28 U.S.C. § 2255(e). (Doc. # 15 at 4-6). At bottom, that conclusion is grounded upon two considerations. First, since the Supreme Court's decisions in Bailey v. United States, 516 U.S. 137 (1995) and Bousley v. United States, 523 U.S. 614, 623-340 (1998),the phrase "case of statutory interpretation" has referred to a Supreme Court decision that construes the petitioner's federal statute of conviction more narrowly than had previously been understood. Neither Mathis nor Descamps do that. Second, the categorical approach as established in Taylor (and as clarified and expounded in its progeny) is not derived from an interpretation of a statute. Instead, it is a methodology created by the federal courts, not Congress, and it is grounded in pragmatic considerations, not the construction of statutory terms.

1.

In Bailey, the Supreme Court held that a defendant does not "use" a firearm in connection with a drug trafficking offense as required to violate 18 U.S.C. § 924(c) unless he "actively employs" it during the offense. 516 U.S. at 142-43. In doing so, the Supreme Court rejected a far more expansive reading of the statute that had been applied by several federal courts of appeal that had permitted a § 924(c) conviction to stand if the firearm was merely nearby the defendant and available for his use. Id. at 143-50. Three years later, in Bousley the Supreme Court held that a defendant convicted under § 924(c) could file a post-conviction motion under 28 U.S.C. § 2255 to assert a Bailey challenge to his conviction, assuming he could overcome any procedural default. 523 U.S. at 618-22.

While Bousley created an opening for petitioners to use § 2255 to assert a claim based upon a...