Williams v. United States, No. 17-3211 (6th Cir. 2019)

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In 2006, Williams pleaded guilty to being a felon in possession of a firearm. He had prior convictions under Ohio law: attempted felonious assault, domestic violence, and assault on a peace officer, which subjected him to a mandatory-minimum sentence of 180 months’ imprisonment under the Armed Career Criminal Act, 18 U.S.C. 924(e) (ACCA). Williams twice unsuccessfully filed 28 U.S.C. 2255 petitions to vacate his sentence. In 2015, (Johnson) the Supreme Court found the ACCA's residual clause, section 924(e)(2)(B)(ii), unconstitutional and subsequently held that Johnson had announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review. Williams filed a third motion, arguing that his prior convictions no longer counted as ACCA predicate offenses. The Sixth Circuit authorized the district court to consider whether Williams’ felonious assault conviction still qualifies as an ACCA violent felony, noting its 2012 holding (Anderson), that committing felonious assault in Ohio necessarily requires the use of physical force and is an ACCA predicate offense under the elements clause. The district court then held, and the Sixth Circuit agreed, that Anderson remained controlling precedent. The Sixth Circuit, en banc, subsequently overruled Anderson and held that a conviction for Ohio felonious assault no longer categorically qualifies as a violent felony predicate under the ACCA’s elements clause. The court then remanded Williams’ case.

This opinion or order relates to an opinion or order originally issued on November 15, 2017.

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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 19a0102p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIAN D. WILLIAMS, Petitioner-Appellant, > v. UNITED STATES OF AMERICA, Respondent-Appellee. No. 17-3211 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: June 13, 2018 Decided and Filed: May 24, 2019 Before: COLE, Chief Judge; MERRITT, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, and NALBANDIAN, Circuit Judges.* _________________ COUNSEL REARGUED EN BANC: Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Michael A. Rotker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON SUPPLEMENTAL BRIEF: Jeffrey B. Lazarus, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Michael A. Rotker, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Rebecca C. Lutzko, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. The court delivered a PER CURIAM opinion. ROGERS, J. (pp. 3–4), delivered a separate concurring opinion. *This case was submitted to the en banc court prior to the commission dates of Judges Readler and Murphy. No. 17-3211 Williams v. United States Page 2 _________________ OPINION _________________ PER CURIAM. After pleading guilty to a felon in possession of a firearm charge, Brian Williams was sentenced as a career offender under the Armed Career Criminal Act (“ACCA”) because of three previous qualifying convictions. See 18 U.S.C. § 924(e). Relevant here, Williams had been convicted previously of attempted felonious assault in violation of Ohio Revised Code §§ 2903.11 and 2923.02. After the Supreme Court invalidated the ACCA’s residual clause in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015), Williams filed a successive § 2255 petition, arguing that his three convictions could no longer be considered predicate offenses under the ACCA. A panel of this court authorized the district court to consider whether Williams’s conviction for attempted felonious assault qualified as a violent felony predicate under the ACCA, and if not, whether Williams is entitled to relief under Johnson. In re Brian D. Williams, No. 16-3411 (6th Cir. Oct. 27, 2016). The district court held that Williams’s felonious assault conviction was a predicate offense, concluding that it was bound by United States v. Anderson, 695 F.3d 390, 399–402 (6th Cir. 2012), which held that Ohio felonious assault is a violent felony under the ACCA’s elements clause. Williams v. United States, Nos. 1:16 CV 520, 1:06 CR 244-1, 2017 WL 7792603, at *7 (N.D. Ohio Feb. 28, 2017). A panel of this court affirmed, agreeing that Anderson controlled the outcome of Williams’s case. Williams v. United States, 875 F.3d 803, 805 (6th Cir. 2017). We granted rehearing en banc in this matter, but subsequently, the en banc court overruled Anderson and held that a conviction for Ohio felonious assault no longer categorically qualifies as a violent felony predicate under the ACCA’s elements clause. See United States v. Burris, 912 F.3d 386, 406 (6th Cir. 2019). In light of the fact that Anderson has been overruled, we remand this case to the original panel to be decided consistent with this order. No. 17-3211 Williams v. United States Page 3 _________________ CONCURRENCE _______________ ROGERS, Circuit Judge, concurring in the remand. Sitting en banc, we may hold today that Ohio felonious assault under Ohio Revised Code § 2903.11(A)(1) is not a qualifying conviction under the Armed Career Criminal Act, notwithstanding the earlier contrary holding by a panel of our court in United States v. Anderson, 695 F.3d 390, 399–402 (6th Cir. 2012). In doing so, we may certainly rely on the intervening legal reasoning of the plurality in United States v. Burris, 912 F.3d 386, 396–402 (6th Cir. 2019), even though that part of the Burris opinion’s analysis was not necessary to the decision to affirm in Burris, and was joined by only six of the eleven judges in the Burris majority. Strictly speaking, however, we are on wobbly grounds as a matter of stare decisis law to reason instead that the en banc court in Burris has already “overruled Anderson and held” that Ohio felonious assault does not categorically qualify as an ACCA predicate offense. It is not entirely clear that Burris overruled Anderson. The treatment of Anderson in Burris was not necessary to the majority’s decision to uphold Burris’s sentence, as we did, on the ground that Ohio Revised Code § 2903.11(A)(2) qualifies as an ACCA predicate. See Burris, 912 F.3d at 410 (Rogers, J., concurring in part and in the judgment); id. at 410–11 (Kethledge, J., concurring in the judgment). To be sure, the seven judges in Burris who did not vote to affirm agreed explicitly with the lead opinion’s determination that Anderson was wrongly decided. 912 F.3d at 411–12 (Cole, C.J., concurring in part and dissenting in part). It could be argued that a plurality of judges voting to affirm, plus seven dissenting judges who agree with the plurality on one point, constitute a majority to create a binding precedent on that point of agreement. Such a theory of vote counting could be criticized as overly rigidifying stare decisis analysis in ways that may have untoward and unforeseeable consequences. But even setting those criticisms aside, the point of agreement in Burris (about Anderson) was dictum—and dictum is dictum no matter how many votes it gets. No. 17-3211 Williams v. United States Page 4 Fortunately, we do not have to resolve these puzzling stare decisis questions. As an en banc court—with the question of whether Ohio Revised Code § 2903.11(A)(1) is an ACCA predicate now fairly before us—we may simply hold that Anderson was not correct. Because this case, unlike Burris, turns on whether Anderson is good law, what was dictum in Burris will here be holding. Unlike in Burris, the Shepard documents here do not make sufficiently clear whether Williams was convicted under Ohio Revised Code § 2903.11(A)(1) or § 2903.11(A)(2). So Williams qualifies as an armed career criminal only if both of those subsections satisfy the ACCA’s elements clause. Burris holds that § 2903.11(A)(2) does satisfy the ACCA. 912 F.3d at 405–06. Anderson held that § 2903.11(A)(1) does also. 695 F.3d at 399–402. Rejecting Anderson is necessary to our decision today. Taking today’s decision as one to reject the Anderson holding for the reasons given by the lead opinion in Burris, 912 F.3d at 396–402, rather than as one deciding that the Burris opinions bind us to reach that conclusion, I concur. ENTERED BY ORDER OF THE COURT __________________________________ Deborah S. Hunt, Clerk

Primary Holding

The Sixth Circuit overrules its own precedent: A conviction for Ohio felonious assault no longer categorically qualifies as a violent felony predicate under the ACCA’s elements clause.

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