United States District Court, D. Connecticut
RULING AND ORDER
R. UNDERHUX, United States District Judge
26, 2016, the petitioner Al-Malik Fruitkwan Shabazz (formerly
known as Edward Singer) filed a placeholder version of a
successive motion to vacate, set aside, or correct his
sentence in light of the holding in Johnson v. United
States, 576 U.S. ___, 135 S.Ct. 2551 (2015) ("2015
Johnson"), which struck down the Residual
Clause of the Armed Career Criminal Act ("ACCA"),
18 U.S.C. § 942(e). (doc. 1) On August 5, 2016, the Second
Circuit granted Shabazz' motion for permission to file a
successive petition in the district court. See
Mandate, Shabazz v. United States, No. 16-1566
(filed as doc. 4). On September 21, 2016, Shabazz filed a
full memorandum in support of his petition, (doc. 5) I asked
the parties to submit additional briefing related to whether
the government was asserting a "harmless error"
defense, (doc. 17), and on November 15, 2017, 1 held a
hearing on the motion, (doc. 20). Both parties also submitted
additional briefing following the hearing, (docs. 18, 19, 22)
that Shabazz has met the threshold requirements for a
successive habeas petition; I grant his petition to vacate
his sentence; and I order him to be resentenced. As discussed
below, I first determine that Shabazz has shown by a
preponderance of the evidence that his petition relies on
2015 Johnson, a new rule of constitutional law made
retroactive on collateral review, because the silence on this
point in the record indicates that I relied on the Residual
Clause to determine that his prior robbery convictions could
serve as ACCA predicates, justifying the imposition of a
sentencing enhancement above what would otherwise have been
the statutory maximum sentence for the offense of conviction.
See 28 U.S.C. § 2244(b)(4) (setting out the
requirements for a successive habeas petition). I next
consider whether a 2015 Johnson constitutional error
is comparable to a "trial error" and therefore
amenable to harmless error review, see Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993), or whether it is a
"structural error" that '"affect[s] the
entire framework in which' an ACCA finding proceeds,
" see Villanueva v. United States, 2016 WL
3248174, at *8 (D. Conn. June 10, 2016) (quoting Peck v.
United States, 106 F.3d 450, 454 (2d Cir. 1995)). I hold
that a 2015 Johnson error is a structural error not
amenable to harmless error review, and accordingly, having
shown that such an error occurred in his case, Shabazz is now
entitled to resentencing. I also determine that the same
result would be reached using a harmless error review, which
review must be conducted using current Supreme Court
precedent interpreting ACCA and other federal statutes.
See Rivers v. Roadway Express, Inc., 511
U.S. 298, 312-13 (1994) ("A judicial construction of a
statute is an authoritative statement of what the statute
meant before as well as after the decision of the case giving
rise to that construction.").
2255 provides a prisoner in federal custody an opportunity to
challenge the legality of his or her sentence. To obtain
relief under section 2255, the petitioner must show that his
or her prior sentence was invalid because: (1) it was imposed
in violation of the Constitution or the laws of the United
States; (2) the court lacked jurisdiction to impose the
sentence; (3) it exceeded the maximum detention authorized by
law; or (4) it is otherwise subject to collateral attack.
28U.S.C. § 2255(a).
successive habeas petition, however, must pass through an
additional procedural hurdle. Under section 2255(h), a
successive habeas petition must be:
certified as provided in section 2244 by a panel of the
appropriate court of appeals to contain-
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
2244, in turn, provides that an application may be granted
"only if [the court of appeals] determines that the
application makes a prima facie showing that the application
satisfies the requirements of this subsection." 28
U.S.C. § 2244(b)(3)(C). The Second Circuit, following
other federal courts that have ruled on the issue, has held
that "the language 'as provided in section 2244'
incorporates the prima facie standard into [the circuit
court's] consideration of successive habeas applications
under § 2255 and that the same standard applies to both
state and federal successive habeas applications."
Bell v. United States, 296 F.3d 127, 128 (2d Cir.
2002) (citing Bennett v. United States, 119 F.3d
468, 469 (7th Cir. 1997)); see also Herrera-Gomez v.
United States, 755 F.3d 142, 147 (2d Cir. 2014)
(asserting that section 2255(h) incorporates "all of the
subsections of section 2244 dealing with the authorization of
second and successive motions.") (internal quotation
marks and citation omitted).
granting authorization in this case, the Second Circuit
instructed this court to apply section 2244(b)(4), which
provides that "a district court shall dismiss any claim
presented in a second or successive application that the
court of appeals has authorized to be filed unless the
applicant shows that the claim satisfies the requirements of
this section"-namely, for the purposes of this case,
that it "relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable." See
Mandate at 1; accordReyes-Requena v. United States,
243 F.3d 893, 899 (5th Cir. 2001) (holding that section
2244(b)(4) is incorporated into section 2255(h) and that
district courts are thereby required to conduct their own
threshold inquiry) (collecting cases).
discussed in more detail below, the parties dispute what is
required to make an adequate section 2244(b)(4) showing and
how that showing interacts with the harmless error standard
articulated by the Supreme Court in Brecht v.
Abrahamson, 507 U.S. 619 (1993). It remains clear,
however, that as with an initial habeas petition, the
petitioner bears the overall burden of proving, by a
preponderance of the evidence, that he is entitled to relief.
See Napoli v. United States, 45 F.3d 680, 683 (2d
24, 2004, a District of Connecticut grand jury returned an
indictment charging Shabazz with one count of unlawful
possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(e)(1). See
United States v. Singer, No. 3:04-cr-210-l (SRU) (doc.
1). On October 27, 2004, a jury found Shabazz guilty of the
charged offense. Id. (doc. 71)
parties appear to have assumed without discussion that, based
on Shabazz's criminal history, he would be subject to a
sentencing enhancement under ACCA. The Presentence Report
("PSR"), without much discussion, determined that
Shabazz was subject to that enhancement on the basis of
"four violent felonies, " apparently referring to
convictions for first degree and second degree robbery
committed on separate occasions with the disposition date of
March 15, 1991,  and two convictions for first degree
robbery committed on separate occasions with the disposition
date of June 24, 1991. On April 5, 2005, 1 sentenced Shabazz
to 235 months of imprisonment, which term incorporated the
fifteen-year ACCA mandatory minimum and ran concurrently with
the undischarged portions of Shabazz's remaining state
sentence. Id. (doc. 88). Both in the sentencing
memoranda submitted by the parties and at the sentencing
hearing, the application of ACCA was assumed without any
substantive objection or discussion.
timely appealed his sentence, arguing that the district court
erred by failing to instruct the jury on a justification
defense and by denying his motion for a mistrial on the basis
of a colloquy with one of the jurors during the announcement
of the verdict. On July 20, 2007, the Second Circuit affirmed
the judgment of the district court by summary order.
United States v. Singer, 241 F.App'x 727, 729
(2d Cir. 2007).
December 21, 2012, Shabazz filed his first federal habeas
petition. 1st Habeas Petition, Shabazz v. United
States, 3:12-cv-1825 (SRU) (doc. 1). He argued that he
should not have been subject to the ACCA enhancement because
two of his prior convictions-for first degree escape and
third degree burglary-were not "violent felonies"
under the statute. Id. On December 16, 2013, 1
denied that petition as barred by the one-year statute of
limitations for section 2255 petitions. Order, Shabazz v.
United States, 3:12-cv-1825 (SRU) (doc. 21). I also
observed that "Shabazz appears to have as many as five
other prior convictions that would qualify as ACCA
predicates, i.e., first and second degree burglary."
Id. at 2-3.
October 19, 2015, following the Supreme Court's decision
in Johnson v. United States, 135 S.Ct. 2551 (2015),
Shabazz filed a pro se application in the Second
Circuit seeking authorization to file a second section 2255
petition. Shabazz v. United States, No. 15-3306 (2d
Cir.) (doc. 1) Counsel appeared, and on November 13, 2015,
filed a memorandum in support of Shabazz's petition
asserting that, through the retroactive application of 2015
Johnson, Shabazz's prior robbery convictions
could no longer be considered categorically violent felonies.
Shabazz v. United States, No. 15-3306 (doc. 25). The
Second Circuit initially denied Shabazz's motion,
observing that even if 2015 Johnson should be
applied retroactively, his three convictions for first degree
robbery, which the court described as "violent felonies,
" would nevertheless prevent him from successfully
challenging the ACCA enhancement. Order, Shabazz v.
United States, No. 15-3306 (2d Cir. Nov. 17, 2015) (doc.
33); see also Order, Shabazz v. United
States, No. 15-3306 (2d Cir. Nov. 24, 2015) (doc. 39)
(permitting supplemental briefing but denying petition).
17, 2016, following the Supreme Court's decision in
Welch v. United States, 136 S.Ct. 1257 (2016), which
held conclusively that 2015 Johnson should be
applied retroactively, Shabazz filed a second application for
permission to file a second section 2255 petition.
Shabazz v. United States, No. 16-1566 (docs. 1 and
2). In a memorandum in support of his renewed petition,
Shabazz argued that the Second Circuit's prior denial of
his 2015 motion was inconsistent with its subsequent grant of
similar petitions where the petitioner also had prior first
and second degree Connecticut robbery convictions.
Shabazz v. United States, No. 16-1566 (doc. 2). On
August 5, 2016, the Second Circuit granted Shabazz's
motion to file a second section 2255 petition. Order,
Shabazz v. United States, No. 16-1566 (2d Cir. Aug.
5, 2016) (doc. 33).
instant petition followed.
argues that, after 2015 Johnson, he no longer
qualifies for an ACCA sentence because his prior robbery
convictions do not categorically qualify as predicates under
the statute. If Shabazz received a sentencing
enhancement on the basis of convictions that only qualified
as ACCA predicates under the Residual Clause then his Fifth
Amendment Due Process rights have been violated, his sentence
is illegal, and his petition to vacate that sentence must be
order to determine whether Shabazz is entitled to that
relief, first, I must consider whether his petition
adequately alleges that his original sentence erroneously
relied on the Residual Clause, and thereby adequately
"relies on" 2015 Johnson for the purposes
of section 2244(b)(4). Having determined that Shabazz has
made that threshold showing, I next consider whether granting
Shabazz's petition would nevertheless be futile because,
looking to the larger legal context, the 2015
Johnson error did not change the outcome of his
Threshold Inquiry: Whether the Successive Petition Relies on
discussed above, the Second Circuit has instructed me to
first determine whether Shabazz's petition "relies
on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable." See Mandate at 1. 2015
Johnson is such a new rule, see Welch, 136
S.Ct. at 1265, and accordingly, any sentence based on
ACCA's Residual Clause carries a constitutional error.
order to file a petition under 2015 Johnson,
however, Shabazz must also show by a preponderance of the
evidence that he was, in fact, subject to a 2015
Johnson error. Villanueva v. United States,
2016 WL 3248174, at *3 (D. Conn. June 10, 2016). In
conducting this threshold inquiry, I follow the lead of other
courts that have analogized a 2015 Johnson to a
general verdict reached after an erroneous jury instruction.
See United States v. Winston, 2016 WL 4940211, at *6
(W.D. Va. Sept. 16, 2016) (collecting cases). The
"reliance" inquiry thus concerns itself with the
specific facts of this case-it considers whether the
sentencing judge actually used the Residual Clause, or
whether it is possible to discern some adequate alternate
basis for the sentence from the record.
party has substantively addressed this aspect of the
"reliance" question, so I touch on it only in
brief. I reviewed the PSR, sentencing memoranda, and
sentencing transcript in Shabazz's criminal case and none
of those documents discussed under which ACCA clause the
robbery predicates qualified; however, I find compelling the
arguments from other courts that such a silence in the record
should be read in favor of the petitioner because the
Residual Clause, written to be a capacious catch-all, was the
most direct and efficient route to establishing an ACCA
predicate at the time. See, e.g., Id. at *3 (holding
that the absence of discussion suggested that the Residual
Clause had been relied upon because it was "the most
obvious path" to an ACCA predicate; it would
"readily have encompassed" the relevant crime; and,
unlike the Elements Clause, would have required "a
minimum of statutory analysis"). Moreover, requiring a
petitioner to make an affirmative showing on a record that is
not only more than ten years old, but was made at a time when
I had no reason to identify on which ACCA clause his sentence
relied would be inequitable and would render 2015
Johnson relief virtually impossible to obtain.
See In re Chance, 831 F.3d 1335, 1340 (11th Cir.
2016) (observing that if silence about the applicable clause
was read against a petitioner despite the fact that the
sentencing judge was not then required to identify which
clause was relied upon, the petitioner "could not
benefit from that binding precedent except in the rare
instances where the sentencing judge thought to make clear
that she relied on the residual clause. That is not
right."); Simmons v. United States, 2016 WL
4536092, at *1 (S.D. Fla. Aug. 31, 2016) (same); United
States v. Wolf, 2016 WL 6433151, at *3 (M.D. Pa. Oct.
31, 2016) (same); United States v. Winston, 2016 WL
4940211, at *7 (W.D. Va. Sept. 16, 2016) (observing that
"there was no reason for a sentencing judge, pre-[2015
Johnson], to identify the specific clause for an
ACCA predicate offense"). Accordingly, I determine that
Shabazz has adequately shown that he was sentenced under the
Residual Clause, and is now entitled to raise a successive
habeas claim under 2015 Johnson.
government's primary argument that Shabazz's claim
does not adequately "rely" on 2015 Johnson
is based on the fact that Shabazz's claim also
relies on 2010 Johnson. There is no dispute that
Shabazz would not be permitted to file a second or successive
habeas on the sole basis of'2010 Johnson-the
Second Circuit has repeatedly held that 2010 Johnson
concerned the interpretation of ACCA, rather than announcing
a new rule of constitutional law, see, e.g., Belk v.
United States, 2016 WL 1587223, at *1 (2d Cir. Apr. 19,
2016); moreover, the one-year statute of limitations under
AEDPA for filing a petition based on 2010 Johnson
has long-since run, see 28 U.S.C. § 2255(f)(3).
Shabazz's Elements Clause argument engages with the 2010
Johnson holding, the availability of that argument
in his case is wholly a product of the new rule announced in
2015 Johnson. Prior to 2015 Johnson,
Shabazz would not have had a viable challenge to his
predicate robbery convictions because the Residual clause
would have picked up wherever the Elements clause left off.
"It is only as a result of 2015 Johnson's
voiding of the residual clause that [Shabazz] could
reasonably argue that he is no longer eligible for the ACCA
enhancement." Diaz v. United States, 2016 WL
4524785, at *5 (W.D.N.Y.Aug. 30, 2016), reconsideration
denied, 2016 WL 5404582 (W.D.N.Y.Sept. 28, 2016)
(internal quotation marks and citation omitted); see also
Chance, 831 F.3d at 1341 n.5 ("[A]n inmate's
sentence that was valid up until the moment 
Johnson was decided was not only ultimately
invalidated by Descamps, it was invalidated by
 Johnson.") (internal citation omitted);
United States v. Pena, 161 F.Supp.3d 268, 275 n.3
(S.D.N.Y. 2016) (observing that by removing the Residual
Clause, 2015 Johnson rendered viable arguments that
Hobbs Act robbery was not a crime of violence under the
I find that Shabazz has met the threshold requirements for
filing a successive habeas petition.
The Brecht Harmless Error Standard
government asserts that, in addition to passing the threshold
requirements for a successive petition, Shabazz must also
show that the 2015 Johnson error caused him
"actual prejudice, " which, it further asserts, he
cannot do. Gov't's Am. Post-Hearing Br. at 1-2 (doc.
19). In other words, the government asserts that
Shabazz's petition should not be granted because removing
the 2015 Johnson error would not change the outcome
of his case. That argument is based on the "harmless
error" standard articulated in Brecht v.
Abrahamson, 507 U.S. 619 (1993). Several judges, myself
included, have applied Brechfs harmless error
standard to successive petitions based on 2015
Johnson without much discussion. See Wiggan v.
United States, 2016 WL 4179838 (D. Conn. Aug. 5, 2016);
United States v. Hicks, 2016 WL 5672949, at *3 (N.D.
Cal. Oct. 3, 2016) (collecting cases); see also In re
Leonard, 2016 WL 3885037, at *11 n.10 (11th Cir. July
13, 2016) (Martin, J. concurring) (observing that prior to
the 2015 Johnson cases, the Eleventh Circuit had
never before applied the harmless error standard in the
successive habeas context, and expressing concern that it did
so without the benefit of briefing). I now believe that I
erred by applying the harmless error standard in this
context,  and agree with Chief Judge Janet C.
Hall's determination in Villanueva v. United
States, 2016 WL 3248174 (D. Conn. June 10, 2016), that a
2015 Johnson error is a structural error not
amenable to Brechfs harmless error review.
Id. at *8.
delving into the applicability of the Brecht
standard itself, however, I must resolve the parties'
debate over who bears the burden on that issue. At the
hearing, the government rejected the suggestion that it was
making a "harmless error" argument because it
asserted that the burden remained on the petitioner to show
prejudice, rather than on the government to show
harmlessness. In its post-hearing briefing on the same issue,
the government relies on Brecht and cases quoting
Brecht for the proposition that the burden is on the
petitioner to show "actual prejudice." See
Gov't's Am. Post-Hearing Br. at 1-2.
appears to be some ambiguity on that point in the
Brecht decision itself: the majority adopted its
harmless error standard from Kotteakos v. United
States, 328 U.S. 750 (1946), which, as Justice Stevens
observed in his concurrence, "places the burden on
prosecutors to explain why [constitutional trial errors] were
harmless." 507 U.S. at 640 (Stevens, J. concurring).
Justice White's dissent, however, observes critically
that majority had, in fact, "impose[d] on the defendant
[presumably meaning the petitioner] the burden of
establishing that the error 'resulted in "actual
prejudice.'"" Id. at 647 (White, J.
dissenting). In O 'Neal v. McAninch, 513 U.S.
432 (1995), the Court suggested that Brechfs
ambiguity might be deliberate, asserting that this issue
should not be thought of in terms of burdens at all, but
rather in terms of whether the legal standard is met. See
Id. at 436-37. Nevertheless, the Court held that if the
reviewing court is in truly equipoise, the error should be
treated as not harmless. Id. at 435; see also
Id. at 439 (observing that both of the earlier standards
on which the Brecht Court relied "plac[ed] the
risk of doubt on the State"). Subsequent Supreme Court
cases have apparently adopted the view that the burden
remains with the government. See Fry v. Pliler, 551
U.S. 112, 121 n.3 (2007) (in response to the question of who
bears the burden of persuasion on Brecht issues,
observing that the State had consistently conceded that it
bore the burden) (citing O 'Neal); United States v.
Dominguez Benitez, 542 U.S. 74, 82 n.7 (2004) (in the
context of direct review, observing that "[w]hen the
Government has the burden of showing that constitutional
trial error is harmless because it comes up on collateral
review, the heightened interest in finality generally calls
for the Government to meet the more lenient
Kotteakos standard") (citing Brecht).
Regardless, allocation of the "burden" does not
appear to be meaningful here where the issue is purely a
question of law, rather than of fact, and there is no
suggestion that the issue has been waived by the government
if it does, indeed, carry the burden of arguing harmless
error as a defense.
Applicability of the Brecht Harmless ...