United States District Court, D. Maryland
LIPTON HOLLANDER, UNITED STATES DISTRICT JUDGE
Memorandum Opinion resolves a hotly contested Motion to
Vacate, Set Aside, or Correct Sentence filed by Kevin Battle,
Petitioner, under 28 U.S.C. § 2255. Mr. Battle
challenges his fifteen-year mandatory minimum sentence,
imposed under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). He contends
that this Court erred in finding him to be an armed career
criminal because one of the three predicate offenses - a 1991
conviction in Maryland for assault with intent to murder -
does not qualify as a “violent felony” under the
ACCA. In support of his position, Battle relies, inter
alia, on the Supreme Court's decision in Johnson
v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015),
and the Fourth Circuit's decision in United States v.
Torres-Miguel, 701 F.3d 165 (4th Cir. 2012).
initial Petition, with exhibits, was filed by Battle, without
counsel. See ECF 80. However, by Order of March 7,
2016, then Chief Judge Catherine Blake appointed the Federal
Public Defender to represent Mr. Battle. ECF 84. Thereafter,
by Order docketed June 2, 2016 (ECF 85), the Fourth Circuit
granted Petitioner's motion for leave to file a
successive petition. Through counsel, Mr. Battle filed a
Supplemental Motion to Vacate on June 2, 2016. ECF 86. I
shall refer to ECF 80 and ECF 86 collectively as the
government opposes the Petition. ECF 91
(“Opposition”). Petitioner's reply is
docketed at ECF 92 (“Reply”). With leave of Court
(ECF 95), the government filed a surreply. ECF 96. Since
then, counsel have submitted a flurry of correspondence in
regard to the Petition. See ECF 99; ECF 100; ECF
101; ECF 102; ECF 103; ECF 104; ECF 105; ECF 109.
28 U.S.C. § 2255(c), a hearing is required
“[u]nless the motion and the files and records of the
case conclusively show the prisoner is entitled to no relief
. . . .” In my view, no hearing is needed here. For the
reasons that follow, I shall deny the Petition.
Factual and Procedural Background
March 2011, Battle was indicted on the charge of possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). ECF 1. The offense ordinarily carries a
maximum sentence of ten years' imprisonment. However, if
a defendant is found to be an armed career criminal under 18
U.S.C. § 924(e), then he is subject to a mandatory
minimum term of fifteen years' imprisonment.
entered a plea of guilty on August 8, 2011 (ECF 38), pursuant
to a Plea Agreement. See ECF 39. The Plea Agreement
reflected the government's position that Battle qualified
as an armed career criminal, and therefore he would be
subject to the enhanced penalty, i.e., a mandatory
minimum sentence of fifteen years' incarceration, under
18 U.S.C. § 924(e). See ECF 39, ¶¶ 3,
6(b). Battle reserved the right to argue that he did not
qualify as an armed career criminal. Id. ¶
6(b). He also reserved his right to note an appeal as to that
issue. Id. ¶ 10(b).
sentencing on November 8, 2011 (ECF 45), the Court found that
Battle was an armed career criminal, pursuant to 18 U.S.C.
§ 924(e), based on three prior convictions incurred in
Maryland: a conviction in 1991 for assault with intent to
murder (“AWIM”); a conviction in 1998 for
possession with the intent to distribute cocaine base; and a
conviction in 2006 for possession with the intent to
distribute cocaine. Only the AWIM conviction is at issue
particular, I concluded that the offense of assault with
intent to murder constituted a violent felony under the so
called “Force Clause” of the ACCA. See
18 U.S.C. § 924(e)(2)(B)(i). Under the Force Clause,
“violent felony” means any crime punishable by
imprisonment for a term exceeding one year that “has as
an element the use, attempted use, or threatened use of
physical force against the person of another.” In the
alternative, I concluded that AWIM constituted a violent
felony under ACCA's “Residual Clause, ” 18
U.S.C. § 924(e)(2)(B)(ii). Accordingly, I sentenced
Battle to a term of 180 months' imprisonment,
corresponding to the mandatory minimum sentence required
under the Armed Career Criminal Act. See ECF 48
appealed his sentence to the Fourth Circuit (ECF 50),
claiming that his prior conviction for AWIM does not qualify
as a “violent felony” under ACCA's Force
Clause. He maintained that the use or threatened use of
violent force is not an element of assault with intent to
murder, and therefore the trial court erred in finding that
AWIM constituted a violent felony. Alternatively, Battle
argued that the Residual Clause was unconstitutionally vague.
ECF 58 at 6-8. In an unpublished, per curiam opinion issued
on October 4, 2012 (ECF 58), the Fourth Circuit affirmed the
Judgment. See United States v. Battle, 494 Fed.Appx.
404, 406-07 (4th Cir. 2012); see also ECF 58.
decision, the Fourth Circuit considered Johnson v. United
States, 559 U.S. 133, 140 (2010), and stated that, under
18 U.S.C. § 924(e)(2)(B)(i), “‘physical
force means violent force - that is, force capable
of causing physical pain or injury to another
person.'” ECF 58 at 4 (emphasis in original).
Moreover, it noted that under Maryland law common law assault
“may be based on a wide range of conduct[.]”
Id. Indeed, it pointed out that assault under
Maryland law “‘encompasses several distinct
crimes, some of which qualify as violent felonies and others
of which do not[.]'” Id. at 5 (quoting
United States v. Alston, 611 F.3d 219, 233 (4th Cir.
2010)). Therefore, the Fourth Circuit stated that an assault
conviction in Maryland is not categorically a violent felony.
ECF 58 at 5 (citing, e.g., Alston, 611 F.3d
at 222-23; United States v. Harcum, 587 F.3d 219,
224 (4th Cir. 2009); United States v. Coleman, 158
F.3d 199, 204 (4th Cir. 1998) (en banc)). However, it also
recognized that the Maryland offense of AWIM “required
proof of an assault coupled with a specific intent to
kill.” ECF 58 at 4.
the Fourth Circuit determined that it was not necessary to
resolve whether the crime of AWIM qualified as a violent
felony under the Force Clause. ECF 58 at 6. Instead, it
concluded that Battle's conviction for AWIM constituted a
violent felony under ACCA's Residual Clause, 18 U.S.C.
§ 924(e)(2)(B)(ii). ECF 58 at 6-8; see also
Battle, 494 Fed.Appx. at 406-07. As of the time of the
Fourth Circuit's decision in Battle, the Supreme
Court had not yet found ACCA's Residual Clause
unconstitutional. The Mandate issued on October 26, 2012. ECF
November 25, 2013, Battle filed his first motion to vacate
under 28 U.S.C. § 2255 (ECF 60, “First
Petition”), supported by a memorandum of law (ECF 60-2)
and several exhibits. Relying on Alleyne v. United
States, 570 U.S. 99 (2013), Battle claimed that his
Sixth Amendment right to trial by jury was violated by the
Court's determination that he qualified as an armed
career criminal, and by the resulting imposition under ACCA
of the enhanced, mandatory minimum sentence of fifteen years.
In addition, Battle raised for the first time the claim that
his 2006 drug conviction is not a qualifying ACCA predicate
because his offense was not punishable by a sufficient
maximum penalty under Maryland law.
government opposed the First Petition (ECF 65) and Battle
replied. ECF 69. Thereafter, the Court ordered the government
to respond to a contention lodged in Mr. Battle's reply
(ECF 70) and the government filed a Court-ordered Surreply.
ECF 71. For the reasons set forth in my Memorandum Opinion
(ECF 72) and Order (ECF 73) of June 26, 2014, I denied the
to 28 U.S.C. § 2255(a), a prisoner in federal custody
may “move the court which imposed the sentence to
vacate, set aside or correct the sentence” if the
petitioner shows “that the sentence was imposed in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack . . . .”
claim is rooted in the Armed Career Criminal Act, 18 U.S.C.
§ 924(e). It provides, in part, that a person convicted
under 18 U.S.C. § 922(g) who has “three previous
convictions . . . for a violent felony or a serious
drug offense . . . shall be fined under this title and
imprisoned not less than fifteen years[.]” 18 U.S.C.
§ 924(e)(1) (emphasis added). Of relevance here, the term
“violent felony” is defined in §
924(e)(2)(B)(i), (ii) as any crime punishable by imprisonment
for a term exceeding one year that
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another
[“Force Clause”]; or
(ii) is burglary, arson, or extortion, involves use of
explosives [“Enumerated Crimes Clause”], or
otherwise involves conduct that presents a serious potential
risk of physical injury to another [“Residual
Armed Career Criminal Act included the so called Residual
Clause, 18 U.S.C. § 924(e)(2)(B)(ii), as a basis for
finding a violent felony. But, in 2015, in Johnson v.
United States, 576 U.S. ___, 135 S.Ct. 2551, 2556-58
(2015) (“Johnson II”), the United States
Supreme Court held ACCA's Residual Clause
unconstitutionally vague. Therefore, a predicate offense,
such as AWIM, can qualify as a violent felony only if it
satisfies one of two statutory standards in ACCA: 1) the
Enumerated Crimes Clause, § 924(e)(2)(B)(ii), which
applies only to the offenses of burglary, arson, extortion,
or use of explosives or 2) the Force Clause, under §
Battle's prior conviction of AWIM does not qualify under
the Enumerated Crimes Clause. Therefore, the issue here is
whether Battle's 1991 Maryland conviction for AWIM falls
within the Force Clause. This requires the Court to determine
whether AWIM is an offense that “has as an element the
use, attempted use, or threatened use of physical force
against the person of another.” See 18 U.S.C.
maintains that AWIM does not constitute a “violent
felony” under the Force Clause because it can be
accomplished without the use or threatened use of violent
physical force. ECF 86 at 6. As noted, he relies, inter
alia, on Johnson v. United States, 559 U.S. 133
(2010) (“Johnson I”) to argue that a
violent felony requires a “substantial degree of
force” or “strong physical force.” ECF 92
at 2. Moreover, Petitioner maintains that in
Torres-Miguel, 701 F.3d at 168, the Fourth Circuit
made clear, in “no uncertain terms, ” that a
crime of violence cannot be predicated ...