Wilson v. United States

KEAIRUS WILSON, Movant, v. UNITED STATES OF AMERICA, Respondent

No. 3:18-cv-00735

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

March 22, 2021

Judge Trauger

MEMORANDUM OPINION

The United States Court of Appeals for the Sixth Circuit authorized the petitioner to file a successive motion to challenge his federal conviction and sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 11.) The petitioner's Amended Motion to Vacate, Set Aside, or Correct Sentence is before the court and has been thoroughly briefed by the parties. (Doc. Nos. 13, 24, 25, 26, 29, 32.) For the reasons that follow, the court will deny the Amended Motion.

I. BACKGROUND

In March 2012, a jury found the petitioner guilty of conspiring to participate in a racketeering activity in violation of 18 U.S.C. § 1962(d) (Count 1); two counts of murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) (Counts 2 and 6); two counts of using or carrying of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Counts 3 and 7); two counts of murder resulting from the use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(j) (Counts 4 and 8); and conspiring to use or carry a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(o) (Count 27). United States v. Wilson, No. 3:10-cr-00163-27 (M.D. Tenn.) (Crim. Doc. No. 1147-8; Crim. Doc. No. 1501; Crim. Doc. No. 1880; Crim. Doc. No. 1911 at 16-17).¹ The court sentenced the petitioner to five concurrent sentences of life imprisonment (Counts 1, 2, 4, 6 and 8), a concurrent sentence of twenty (20) years in prison (Count 27), and consecutive sentences of ten years (Count 3) and twenty-five (25) years (Count 7), to be followed by five years of supervised release, for a total effective prison sentence of life plus thirty-five years. (Crim. Doc. No. 1880 at 3.)

On direct appeal, the Sixth Circuit vacated the petitioner's Section 924(c) convictions (Counts 3 and 7) on the basis that those charges were lesser-included offenses of the Section 924(j) convictions and, therefore, violated the petitioner's rights under the Double Jeopardy Clause. The remaining convictions and sentences were affirmed. United States v. Wilson, 579 F. App'x 338, 342 (6th Cir. 2014); (Crim. Doc. No. 2066 at 15). The United States Supreme Court denied the petitioner's petition for a writ of certiorari. (Crim. Doc. Nos. 2087, 2091.) This court later entered an Amended Judgment deleting the consecutive ten-year (Count 3) and twenty-five (25) year (Count 7) sentences for the convictions that had been vacated and sentencing the petitioner to an effective total sentence of life in prison on the remaining convictions. (Crim. Doc. No. 2121.)

The petitioner's first motion under Section 2255 claimed that his trial counsel was ineffective in various ways in connection with the failure to obtain a beneficial plea deal. Wilson v. United States, No. 3:15-cv-01058, slip op. at 2 (M.D. Tenn. June 22, 2016). This court denied relief on those claims, and the petitioner did not appeal. Id.

The Sixth Circuit authorized the petitioner to file this second Section 2255 actionpursuant to 28 U.S.C. §§ 2244(b) and 2255(h) in order to determine whether three of his remaining convictions are valid in light of the unconstitutionality of Section 924(c)'s residual clause.² (Doc. No. 11.) Specifically, the petitioner claims in the Amended Motion that his convictions on Counts 4, 8, and 27 must be vacated because they rest on predicate offenses—murder in aid of racketeering—that do not qualify as crimes of violence under the elements clause of Section 924(c). (Doc. No. 13 at 3-4.) In a Supplement to his Amended Motion, the petitioner claims that another possible predicate—conspiring to racketeer—to his conviction for Count 27 also fails to qualify as a "crime of violence" necessary to support his conviction. (Doc. No. 24.)

The government opposes the Amended Motion on the grounds that: (1) the petitioner's claims are procedurally defaulted; (2) murder is a crime of violence under the elements clause of Section 924(c); and (3) the petitioner's supplemental claim about the validity of RICO conspiracy as a predicate to his conviction was not authorized by the Sixth Circuit and is not supported by the record. (Doc. No. 25.)

II. LEGAL FRAMEWORK

A. 28 U.S.C. § 2255

Section 2255 provides a statutory mechanism for challenging the imposition of a federal conviction or sentence:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). To obtain relief under Section 2255, a movant "'must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'" Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are outside the scope of Section 2255 relief, except under rare circumstances. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). In Section 2255 proceedings, it is the movant's burden to show his entitlement to relief. Potter v. United States, 887 F.3d 785, 787-88 (6th Cir. 2018). Generally, claims that a movant failed to raise at trial or on direct review are procedurally defaulted. Massaro v. United States, 538 U.S. 500, 504 (2003). Under the doctrine of procedural default, a defendant who fails to raise an issue on direct appeal may not raise that issue in a § 2255 motion unless he can establish cause and prejudice to excuse his failure or establish actual innocence. Bousley v. United States, 523 U.S. 614, 622 (1998).

If a factual dispute arises in a Section 2255 proceeding, the court is to hold an evidentiary hearing to resolve the dispute. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). However, "there is no reason to conduct an evidentiary hearing to resolve a purely legal issue." Bryan v. United States, 721 F.2d 572, 577 (6th Cir. 1983). Here, the movant's Section 2255 motion only presents legal issues, rather than factual ones. Thus, having reviewed the pleadings, briefs, and records filed in the underlying criminal case, as well as the filings in this case, the court finds it unnecessary to hold an evidentiary hearing.

B. 18 U.S.C. § 924(c)

Section 924(c) provides enhanced penalties for "any person who, during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). An individual convicted of a crime of violence during which a firearm is discharged is subject to a mandatory minimum sentence of ten years "in addition to the punishment provided" for the underlying crime of violence. 18 U.S.C. § 924(c)(1)(A)(i), (iii). Section 924(c)(3) defines "crime of violence" as "an offense that is a felony" and that:

(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). Courts commonly refer to § 924(c)(3)(A) as the "force clause" or "elements clause" and to § 924(c)(3)(B) as the "residual clause."

"[P]hysical force" is "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); see also United States v. Rafidi, 829 F.3d 437, 445-46 (6th Cir. 2016) (applying Johnson's definition of "physical force" to Section 924(c)(3)(A)).

In Johnson v. United States ("Johnson II"), 576 U.S. 591 (2015), the Supreme Court invalidated the so-called residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), as unconstitutionally vague under the Due Process Clause of the Fifth Amendment. 576 U.S. at 606. The Supreme Court later held that Johnson II was a substantive decision that applied retroactively on collateral review. Welch v. United States, 136 S. Ct. 1257,1268 (2016). On June 24, 2019, the Supreme Court held that Section 924(c)(3)(B), like the ACCA's residual clause, is unconstitutionally vague. Davis, 139 S. Ct. at 2336. The Sixth Circuit has held that Davis announced a new rule of constitutional law that retroactively applies to cases on collateral review. In re Franklin, 950 F.3d 909, 911 (6th Cir. 2020).

C. Categorical and Modified Categorical Approaches

Courts are to use a "categorical approach" to determine whether an offense satisfies the elements clause of Section 924(c). Wingate v. United States, 969 F.3d 251, 263 (6th Cir. 2020). This approach requires the court to "focus[] on the statutory definition of the offense, rather than the manner in which an offender may have violated the statute in a particular circumstance." Id. (quoting Manners v. United States, 947 F.3d 377, 379 (6th Cir. 2020)). The court "must determine whether the minimum criminalized conduct" covered by the statute "necessarily involves physical force as contemplated in § 92(c)(3)(A)." Id. (citing Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)).

When a statute is "divisible," meaning that it "list[s] elements in the alternative, and thereby define[s] multiple crimes," courts must turn to the "modified categorical approach" to determine whether the crime for which the defendant was convicted satisfies the elements clause. Manners, 947...