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Williams v. United States

United States Court of Appeals, Sixth Circuit

November 15, 2017

Brian D. Williams, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued: October 5, 2017

         Appeal from the United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:06-cr-00244-1; 1:16-cv-00520-Solomon Oliver Jr., District Judge.

         ARGUED:

          Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant.

          Rebecca C. Lutzko, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

         ON BRIEF:

          Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant.

          Robert E. Bulford, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

          Before: MERRITT, MOORE, and ROGERS, Circuit Judges.

          OPINION

          ROGERS, CIRCUIT JUDGE

         In this case the district court denied Brian Williams' motion to vacate his sentence under 28 U.S.C. § 2255. Williams received an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"), and he petitioned for relief in light of the Supreme Court's decision in United States v. Johnson, 135 S.Ct. 2551 (2015) ("Johnson II"), which struck down the residual clause of the ACCA as unconstitutional. Because binding circuit precedent establishes that Williams necessarily qualified for the enhancement under the ACCA elements clause, he is not entitled to relief.

         On July 28, 2006, Williams pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Williams had three prior convictions-one for attempted felonious assault in violation of Ohio Revised Code §§ 2903.11 and 2923.02, one for domestic violence in violation of Ohio Revised Code § 2919.25, and one for assault on a peace officer in violation of Ohio Revised Code § 2903.13-which subjected him to a mandatory-minimum sentence of 180 months' imprisonment under the ACCA. Williams did not take a direct appeal, but he has twice filed petitions under § 2255. Each was ultimately denied.

         In Johnson II the Supreme Court held the residual clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), unconstitutional. 135 S.Ct. at 2563. In Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that Johnson II had announced a new substantive rule of constitutional law that courts must apply retroactively to cases on collateral review. Id. at 1268. Based on Johnson II and Welch, Williams filed this § 2255 motion, his third, seeking to vacate his sentence, arguing that after Johnson II his three convictions no longer count as predicate offenses under the ACCA. The district court transferred this case to us on April 19 so that we could decide whether to allow Williams' successive § 2255 petition.

         On October 27, 2016, a panel of this court authorized the district court to consider whether Williams' conviction for Ohio felonious assault still qualifies as a violent felony under the ACCA. In re Brian D. Williams, No. 16-3411 (6th Cir. Oct. 27, 2016).[1] We recognized our decision in United States v. Anderson, 695 F.3d 390 (6th Cir. 2012), as a binding precedent which held that committing felonious assault in Ohio necessarily requires the use of physical force and is therefore a predicate offense under the ACCA elements clause, id. at 402, but also noted that "much has changed in the four years since we decided Anderson." We suggested but expressly did not hold that, because a conviction for felonious assault could be based on a showing of purely mental injury, the offense might not necessarily entail the use of physical force required by the elements clause. We instructed the district court to consider whether, in light of intervening Supreme Court precedents, Anderson still controlled Williams' case.

         The district court determined that Williams' conviction for attempted felonious assault remained a qualifying predicate offense under the elements clause. The district court reasoned that Anderson was still controlling precedent that "squarely foreclose[d] Williams's claim." The district court denied Williams' motion ...


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