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Shabazz v. United States

United States District Court, D. Connecticut

January 3, 2017

AL-MALIK FRUITKWAN SHABAZZ, Petitioner,
v.
UNITED STATES, Respondent.

          RULING AND ORDER

          STEFAN R. UNDERHUX, United States District Judge

         On June 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).[1] (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)

         I hold 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.").

         I. Legal Standard

         Section 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).

         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; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

         Section 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).

         After 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).

         As 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 Cir. 1995).

         II. Background

         On June 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.[2] Id. (doc. 71)

         The 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, [3] 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.

         Shabazz 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).

         On December 21, 2012, Shabazz filed his first federal habeas petition.[4] 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.

         On 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).

         On May 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).

         The instant petition followed.[5]

         III. Discussion

         Shabazz argues that, after 2015 Johnson, he no longer qualifies for an ACCA sentence because his prior robbery convictions do not categorically[6] qualify as predicates under the statute.[7] 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 granted.

         In 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 case.

         A. Threshold Inquiry: Whether the Successive Petition Relies on 2015 Johnson

         As 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.

         In 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.

         Neither 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.

         The 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).

         Although 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 [2015] Johnson was decided was not only ultimately invalidated by Descamps, it was invalidated by [2015] 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 Elements Clause).

         In sum, I find that Shabazz has met the threshold requirements for filing a successive habeas petition.

         B. The Brecht Harmless Error Standard

         The 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, [8] 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.

         Before 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.

         There 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.

         1. Applicability of the Brecht Harmless ...


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