IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION * THE UNITED STATES OF AMERICA Crim. No. DKC * v. Civil No. * KEVIN KILPATRICK BATEN * * * * * * SUPPLEMENT TO EMERGENCY CONSENT MOTION TO CORRECT SENTENCE UNDER 28 U.S.C INTRODUCTION Petitioner, Kevin Kirkpatrick Baten, through undersigned counsel, James Wyda, Federal Public Defender, and Paresh S. Patel, Appellate Attorney, hereby supplements his emergency consent motion to set aside the judgment in this case and correct his sentence pursuant to 28 U.S.C On January 31, 2005, this Court sentenced Mr. Baten as an armed career criminal under 18 U.S.C. 924(e) (Armed Career Criminal Act) (ACCA). Mr. Baten s ACCA sentence was predicated on one prior Maryland robbery conviction, one Maryland robbery with a dangerous weapon conviction, and one Virginia robbery conviction. However, in light of the Supreme Court s recent decision in Johnson v. United States, 135 S. Ct (2015), Mr. Baten is no longer an armed career criminal because his Maryland robbery conviction no longer qualifies as an ACCA violent felony. 1 1 Mr. Baten s position is also that Maryland robbery with a dangerous weapon and Virginia robbery do not qualify as ACCA violent felonies. However, no need exists for this Court to decide these issues because Mr. Baten is no longer an armed career criminal based on the fact that his Maryland robbery conviction no longer qualifies as a violent felony. This fact alone renders his ACCA sentence void and establishes that Mr. Baten is now serving a per se illegal sentence that has exceeded the non-acca maximum of 10 years.

2 In Johnson, the Supreme Court struck down the Armed Career Criminal Act s (ACCA) residual clause (18 U.S.C. 924(e)(2)(B)(ii)) as unconstitutionally vague. 135 S. Ct. 2551, 2557 (2015). Thus, the only question here is whether Mr. Baten s robbery offense qualifies as a violent felony under the remaining force clause of the ACCA (18 U.S.C. 924(e)(2)(B)(i)). It does not. As the government recently conceded in the Fourth Circuit, Maryland robbery categorically fails to qualify as a violent felony under the ACCA force clause. See Br. Of Appellee, at 73, United States v. Louis Martin, No (4th Cir. Sept. 14, 2015). This is true for two independent reasons: 1) the offense can be violated by putting someone in fear of injury to property rather than violent physical force against a person, and 2) the offense can also be accomplished by nothing more than a larceny combined with de minimis force, i.e., offensive touching or putting someone in fear of an offensive touching. Hence, Mr. Baten does not have the three necessary predicate convictions (either violent felonies or serious drug offenses ) to qualify him as an armed career criminal. As a result, Mr. Baten s currently imposed sentence of 180 months is now a per se illegal sentence, not only in violation of the United States law, but in excess of the 10-year statutory maximum for his offense of being a felon in possession of a firearm. Allowing this sentence to remain in tact further violates due process. Therefore, Mr. Baten is entitled to relief under 28 U.S.C. 2255(a). Mr. Baten s petition is timely under 28 U.S.C. 2255(f)(3) because he filed it well within one year of the Supreme Court s decision in Johnson a ruling which established a newly recognized right that is retroactively applicable to cases on collateral review. Mr. Baten respectfully requests that this Court grant his 2255 motion, vacate his current sentence, and re- 2

3 sentence him to time served. Mr. Baten has no objection to the Court imposing an additional two weeks for release planning if the Court wishes to do. As grounds for this motion, Mr. Baten states as follows: STATEMENT OF FACTS On October 28, 2004, Mr. Baten pled guilty to the offense of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g). On January 31, 2005, this Court sentenced Mr. Baten to a term of 180 months imprisonment after finding that he was an armed career criminal under the ACCA. This Court found him to be an armed career criminal after adopting the finding of the presentence report that he had at least three qualifying prior convictions necessary to support the ACCA enhancement. Specifically, the Court found that Mr. Baten had one Maryland robbery conviction, one Maryland robbery with a dangerous weapon conviction, and one Virginia robbery conviction that qualified as violent felonies under the ACCA. This Court s application of the ACCA to Mr. Baten subjected him to a statutory mandatory minimum sentence of 180 months, and the Court sentenced him to that term. Without an ACCA enhancement, he faces a statutory maximum of 10 years or 120 months a time period he has already served. See 18 U.S.C. 924(a)(2) On June 26, 2015, the Supreme Court issued its decision in Johnson, 135 S. Ct. 2551, holding that the residual clause of the ACCA violent felony definition is void for vagueness. This petition follows. 3

4 ARGUMENT I. In Light of Johnson, Mr. Baten Does Not Have Three Prior Convictions That Qualify as ACCA Predicate Offenses. Under the ACCA, a prior offense qualifies as a violent felony if it is punishable by imprisonment for a term exceeding one year and it (i) (ii) has an element the use, attempted use, or threatened use of physical force against the person of another; [known as the force clause] or is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[ known as the residual clause] 18 U.S.C. 924(e)(2)(B) (emphasis added). In Johnson, 135 S. Ct. 2551, the Supreme Court held that the residual clause (18 U.S.C. 924(e)(2)(B)(ii) referenced above was unconstitutionally void for vagueness in all applications. Therefore, a prior offense can now only qualify as a violent felony if it is either one of the enumerated offenses (burglary, arson, extortion, or use of explosives) or falls within the force clause. There is no question that Mr. Baten s robbery conviction does not qualify as one of the ACCA enumerated offenses. Therefore, the only issue here is whether Mr. Baten s prior conviction falls within the ACCA force clause. It does not. A. The categorical approach applies in determining whether a prior conviction qualifies as a violent felony under the ACCA force clause. Before addressing the robbery conviction, it is important to understand the categorical approach that applies here. In determining whether a prior conviction qualifies as a violent felony under the ACCA force clause, sentencing courts must employ the categorical approach. See Descamps v. United States, 133 S. Ct. 2276, 2283 (2013); United States v. Royal, 731 F.3d 333, (4th Cir. 2013). This approach requires that courts look only to the statutory definitions 4

5 i.e., the elements of a defendant s [offense] and not to the particular facts underlying [the offense] in determining whether the offense qualifies as a violent felony. Descamps, 133 S. Ct. at 2283 (citation omitted); Royal, 731 F.3d at In addition, under the categorical approach, a prior offense can only qualify as a violent felony if all of the criminal conduct covered by a statute including the most innocent conduct matches or is narrower than the violent felony definition. United States v. Torres-Miguel, 701 F.3d 165, 167 (4th Cir. 2012). If the most innocent conduct penalized by a statute does not constitute a violent felony, then the statute categorically fails to qualify as a violent felony. As a result, post-descamps, for an offense to qualify as a violent felony under the ACCA force clause, the offense must have an element the use, attempted use, or threatened use of physical force against another person. 18 U.S.C. 924(e)(2)(B)(i). And physical force means violent force that is strong physical force, which is capable of causing physical pain or injury to another person. Johnson v. United States, 559 U.S. 133, 140 (2010) (emphasis in original). As further detailed below, under these terms, Mr. Baten s prior conviction for Maryland robbery categorically fails to qualify as an ACCA predicate. B. Mr. Baten s Maryland robbery conviction does not qualify as an ACCA violent felony because it does not require the use, attempted use, or threatened use of violent physical force against another person; rather, it can be accomplished by threatening injury to one s property or by de minimis force against a person. The government is correct to concede that Mr. Baten s prior Maryland robbery conviction fails to qualify as an ACCA violent felony. See Br. Of Appellee, at 73, United States v. Louis Martin, No (4th Cir. Sept. 14, 2015). Maryland robbery is defined as the felonious taking and carrying away of the personal property of another, from his person or in his presence, by violence or by putting him in fear. Coles v. State, 821 A.2d 389, 394 (Md. 2002) (citations and quotations 5

6 omitted). This means Maryland robbery can be accomplished by either the application of physical force, or by the intimidation or putting in fear of the victim. Giles v. State, 261 A.2d 806, 807 (Md. Ct. Spec. App. 1970). However, to be clear, although Maryland courts use the label violence, Maryland robbery does not require actual violent physical force, i.e., strong physical force against a person, as required under the ACCA force clause. Rather, whether the Maryland violence element is accomplished by application of physical force or putting in fear, neither means of committing a Maryland robbery satisfies the terms of the ACCA force clause. First, Maryland robbery can be accomplished by putting someone in fear of injury to his property. This automatically disqualifies Maryland robbery from qualifying as a violent felony under the force clause, which requires violent physical force against a person. Second, Maryland robbery, whether by physical force or putting in fear, can be committed by de minimis force i.e., an offense touching of another person or putting someone in fear of an offense touching. This also disqualifies Maryland robbery as an ACCA violent felony. 1. Maryland robbery categorically fails to qualify as a violent felony under the ACCA force clause because it can be violated by putting someone in fear of injury to his property. To begin with, in Giles v. State, the Maryland Court of Special Appeals squarely held that Maryland robbery can be accomplished simply by putting someone in fear of injury to the person or to the property, as for example a threat to burn down a house. 261 A.2d at 807 (emphasis added). In Douglas v. State, 267 A.2d 291, 295 (Md. Ct. Spec. App. 1970), the Court repeated the same: That the fear be of great bodily harm is not a requisite. Nor need the fear be of bodily injury at all. The fear may be of injury to the person or to property, as for example, a threat to burn down a house. Id. (quoting Giles, 267 A.2d at 807). Even more, in Giles, the Court of Specials noted that 6

7 robbery can also be accomplished when one threatens to accuse another of an unnatural crime, sodomy, and thereby obtains property from him. 267 A.2d at 808 n.1. Because Maryland robbery does not require the use, attempted use, or threatened use of violent physical force against the person of another, it does not qualify as a violent felony under the ACCA force clause. The Fourth Circuit s decision in United States v. Parral-Dominguez, 749 F.3d 440 (4th Cir. 2015) is directly on point. In that case, the Court held that a prior North Carolina conviction for discharging a firearm into an occupied building was not a crime of violence under the force clause of U.S.S.G. 2L1.2(b)(1)(A)(ii) which is identical to the ACCA force clause. The Court reasoned that the North Carolina offense could not qualify as a crime of violence under the 2L1.2 force clause because it did not require force against a person, but rather merely force against property. The Court clarified that by its plain language, the use-of-force clause does not encompass acts involving the use of force against property (rather than persons). Parral- Dominguez, 794 F.3d at 444. Likewise, the identical ACCA force clause (18 U.S.C. 924(e)(2)(B)(i) also does not encompass acts involving the use of force against property. Therefore, Maryland robbery, which criminalizes threats of injury to property, likewise fails to qualify as an ACCA violent felony. 2. Maryland robbery categorically fails to qualify as a violent felony under the ACCA force clause because it can be violated by de minimis force or putting someone in fear of de minimis force. It is well settled that Maryland robbery, even when accomplished by means of force against a person or putting another in fear of force against his person, requires nothing more than the use or threat of de minimis force, i.e., an offensive touching or threat of offensive touching. In Snowden v. State, 583 A.2d 1056, the Maryland Court of Appeals explained that Maryland robbery is a 7

8 larceny combined with an assault. Id. at Neither larceny nor assault require violent physical force (i.e., strong physical force) necessary to constitute an ACCA predicate. Therefore, it follows that robbery is not a violent felony under the ACCA. To be sure, larceny only requires the fraudulent taking and carrying away of a thing without claim of right with the intention of converting it to a use other than that of the owner without his consent. Snowden v. State, 204 A.3d 532, 536 (Md. 1964). Therefore, larceny certainly does not have an element of violent physical force. Likewise, a Maryland assault offense also does not require violent physical force. Rather, it only requires an offensive touching or putting another in fear of an offensive touching. A Maryland assault is defined as an attempted battery, an intentional placing of a victim in reasonable apprehension of an imminent battery, or a consummated battery. Id. at Battery, in turn, is broadly defined by case law as any unlawful force used against a person of another, no matter how slight. State v. Duckett, 510 A.2d 253, 257 (Md. 1986). Under Maryland law, battery (and in turn assault) can be accomplished by a wide range of conduct including kissing without consent, touching, or tapping, jostling, or throwing water upon another.... Epps v. United States, 634 A.2d 20, 23 (Md. 1993). Indeed, for this very reason, the Fourth Circuit in Royal, 731 F.3d at 342, held that Maryland assault fails to qualify as an ACCA violent felony : [B]ecause, as we have repeatedly observed, Maryland s second-degree assault statute reaches any unlawful touching, whether violent or nonviolent and no matter how slight, convictions under the statute, including [Royal s] cannot categorically be crimes of violence. Id. (quoting Karimi v. Holder, 715 F.3d 561, 568 (4th Cir. 2013)). 8

9 Since Maryland has defined robbery as a larceny by way of assault, and assault does not require violent physical force, then it logically follows that robbery also does not require violent physical force. The Maryland Court of Appeals and Court of Special Appeals have explicitly provided that a robbery may be accomplished with de minimis force or putting someone in fear of de minimis force. Indeed, in Facon v. State, 796 A.2d 101, 119 (Md. 2002), rev d. on other grounds, 825 A.2d 1096 (Md. 2003), the Maryland Court of Special Appeals provided that the degree of force necessary to constitute a robbery is immaterial so long as it is sufficient to compel the victim to part with his property. Id. In Coles v. State, 821 A.2d 389, 396 (Md. 2003), the Court of Appeals held that when intimidation or putting in fear is the gravaman of the robbery, this can be accomplished by [a]ny attempt to apply the least force to the person of another. Id. (citation omitted); see also Giles, 261 A.2d at 807 (robbery can be accomplished with resistance however slight, that, for example, includes rudely push[ing] [the victim] for the purpose of diverting his attention ). In sum, Maryland robbery fails to qualify as an ACCA violent felony because it does not have as an element the use, attempted use, or threatened use of violent physical force, i.e., strong physical force that is capable of causing of causing physical pain or injury to another person. Johnson, 559 U.S. at 140. II. Mr. Baten is Entitled to 2255 Relief Because His Current ACCA Sentence Exceeds the Statutory Maximum and Violates Due Process. Under 28 U.S.C. 2255, a petitioner is entitled to a resentencing when his original sentence was in excess of the maximum authorized by law or was imposed in violation of the Constitution or laws of the United States. 28 U.S.C. 2255(a). Mr. Baten is entitled to relief on all these grounds. In light of Johnson, Mr. Baten does not have three prior convictions that qualify as ACCA 9

10 predicate offenses. His current ACCA sentence, therefore, exceeds the 10-year statutory maximum for a non-acca offense and violates due process. See United States v. Shipp, 589 F.3d 1084, 1091 (10th Cir. 2009) (an erroneous ACCA sentence that exceeds the statutory maximum is not only illegal, but violates due process and results in a fundamental miscarriage of justice). The Fourth Circuit has made clear that a claim of this nature is cognizable under In United States v. Newbold, 791 F.3d 455 (4th Cir. 2015), the Court granted 2255 relief to a defendant whose original ACCA sentence was rendered invalid by a subsequent change in the law. In doing so, the Court explained that [s]uch circumstances, where a change in the law reduces the defendant s statutory maximum sentence below the imposed sentence, have long been cognizable on collateral review. Id. at 460 (quoting Welch v. United States, 604 F.3d 408, (7th Cir. 2010)). As in Newbold, Mr. Baten is entitled to 2255 relief in this case. III. Johnson Applies Retroactively on Collateral Review. A Supreme Court decision applies retroactively to cases on collateral review if it announces a new rule that is substantive. Schriro v. Summerlin, 542 U.S. 348, 351 (2004); Miller v. United States, 735 F.3d 141, 145 (4th Cir. 2013). Johnson satisfies both requirements. First, the Johnson holding is new because it expressly overruled two prior decisions James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 131 S. Ct (2011) that had affirmed sentences imposed under the residual clause. 135 S. Ct. at 2563 ( Our contrary holdings in James and Sykes are overruled. ). That Johnson expressly overruled prior precedent demonstrates that the decision is new. See Teague v. Lane, 489 U.S. 288, 301 (1989) ( [A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. ). 10

11 Second, the Johnson holding is substantive because it narrows the class of persons that the law can punish as armed career criminals. Under Supreme Court precedent, a decision is considered substantive if it narrow[s] the scope of a criminal statute by interpreting its terms. Schriro, 542 U.S. at A decision is also substantive if it prohibit[s] a certain category of punishment for a class of defendants because of their status or offense. O Dell v. Netherland, 521 U.S. 151, 156 (1997) (citation and brackets omitted). Such decisions apply retroactively because they necessarily carry a significant risk that a defendant... faces a punishment that the law cannot impose upon him. Schriro, 542 U.S. at 352. Applying these standards, a decision that narrows the reach of the ACCA as Johnson does by declaring one of its provisions unconstitutional is substantive. See, e.g., Welch, 604 F.3d at 415 ( the application of the ACCA imposed, at a minimum, five years of imprisonment that the law otherwise could not impose upon him under his statute of conviction. Such an increase in punishment is certainly a substantive liability ). The federal courts have consistently held that the Supreme Court s prior decisions narrowing the scope of the ACCA Begay v. United States, 553 U.S. 137 (2008) and Chambers v. United States, 555 U.S. 122 (2009) are substantive decisions that apply retroactively to cases on collateral 2 review. That conclusion applies with even more force to Johnson because it both narrowed the ACCA s reach by voiding the residual clause and expressly declared that [i]ncreasing a defendant s sentence under the clause denies due process of law. 135 S. Ct. at See, e.g., Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253, (11th Cir. 2013) (Begay); Narvaez v. United States, 674 F.3d 621, 623 (7th Cir. 2011) (Begay and Chambers); Jones v. United States. 689 F.3d 621, 625 (6th Cir. 2012) (Begay); Welch v. United States, 604 F.3d 408, 415 (7th Cir. 2010) (Begay); Lindsey v. United States, 615 F.3d 998, 1000 (8th Cir. 2010) (Begay); United States v. Shipp, 589 F.3d 1084, 1090 (10th Cir. 2009) (Chambers). 11

12 Indeed, the Seventh Circuit has already held that Johnson is retroactive. Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015). The Court explained that Johnson announced a substantive rule, because [i]n deciding that the residual clause is unconstitutionally vague, the Supreme Court prohibited a certain category of punishment for a class of defendants because of their status. Id. (citation omitted). Likewise, the Eleventh Circuit has also held that Johnson is retroactive. In re Rivero, 797 F.3d 986, 991 (11th Cir. Aug. 12, 2015). Specifically, the Court explained that Johnson announced a substantive rule because it narrow[ed] the scope of [section] 924(e) by interpreting its terms, specifically, the term violent felony, and narrowed the class of people who are eligible for an increased sentence under the Armed Career Criminal Act. Id. at 991 (internal quotation marks and citations omitted). The court stated in dicta that if the movant were seeking a first collateral review 3 of his sentence, the new substantive rule from Johnson would apply retroactively. Id. at 991. Further, the government has conceded that the rule announced in Johnson is substantive and thus retroactive in several cases. See Gov t s Resp. to Appellant s Mot. at 4-5, United States v. Imm, Nos , (3d Cir. Aug. 6, 2015), Price v. United States, 795 F.3d 731 (7th Cir. July 14, 2015) (No ); Joint Emergency Mot., United States v. Striet, No (9th Cir. Aug. 12, 2015); Joint Mot. at 7-8, United States v. Jackson, No (10th Cir. Sept. 3, 2015); Joint Emergency Mot., In re Scott, No (4th Cir. Sept. 9, 2015); Gov t s Resp. to Petitioner s Request to File Successive Mot. Under 28 U.S.C. 2255, Wilson v. United States, No (8th Cir. Sept. 11, 2015). 3 Also, it is important to note that for initial 2255 petitions, like that at issue here, any court, including the district court, can decide whether a case is retroactively applicable on collateral review. The Supreme Court itself does not have to make the case retroactive. See United States v. Thomas, 627 F.3d 534, (4th Cir. 2010). 12

13 The conclusion that Johnson applies retroactively to cases on collateral review is further supported by the fact that the Supreme Court granted certiorari for the purpose of vacating and remanding in light of Johnson in numerous cases involving collateral attacks. See Denson v. United States, 135 S. Ct (2015) (2015) (vacating Denson v. United States, 569 F. App x 710 (11th Cir. 2014) (affirming denial of 2255 motion)); Beckles v. United States, 135 S. Ct (2015) (2015) (vacating Beckles v. United States, 579 F. App x 833 (11th Cir. 2014) (same)); Wynn v. United States, 135 S. Ct (2015) (vacating order in Wynn v. United States, No (6th Cir. Oct. 10, 2014) (same)); Jones v. United States, 135 S. Ct (2015) (vacating order in United States v. Jones, No (3d. Cir. Feb. 20, 2015) (denying certificate of appealability to appeal denial of 2255 motion)); Nipper v. Pastrana, 135 S. Ct (2015) (vacating Nipper v. Warden, 597 F. App x 581 (11th Cir. 2015) (affirming denial of 2241 habeas corpus petition)); Coney v. Pastrana, 135 S. Ct (2105) (vacating Coney v. Warden, 579 F. App x 848 (11th Cir. 2014) (same)); Aiken v. Pastrana, 135 S. Ct (2015) (vacating Aiken v. Warden, 595 F. App x 953 (11th Cir. 2014) (same)); Lynch v. United States, 135 S. Ct (2015) (vacating order in Lynch v. United States, No E (11th Cir. Jan. 16, 2015) (denying certificate of appealability to appeal denial of 2255 motion)). Therefore, Johnson is retroactive. 13

14 IV. This Motion Is Timely under 28 U.S.C. 2255(f)(3). This motion is timely under 28 U.S.C. 2255(f)(3), which provides for a one-year limitations period to run from the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review. The Supreme Court decided Johnson on June 26, 2015, and Mr. Baten filed his claim within a year of that date. As discussed above, the Supreme Court recognized a new right in Johnson, and announced a substantive rule that is therefore retroactive to cases on collateral review. CONCLUSION Mr. Baten is entitled to relief under 2255 because, in light of Johnson, his sentence violates due process of law and exceeds the non-acca statutory maximum. This Court should vacate his ACCA sentence and sentence him to time served. Mr. Baten does not object to this Court imposing a period of incarceration for two weeks beyond time served for release planning purposes. Respectfully submitted, JAMES WYDA Federal Public Defender /s/ PARESH.S PATEL, Appellate Attorney 6411 Ivy Lane, Ste. 710 Greenbelt, Maryland (301)

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 26th day of October 2015, a copy of the foregoing pleading was delivered via electronic filing to Michael C. Hanlon, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland. /s/ PARESH S. PATEL Appellate Attorney