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Battle v. United States

United States District Court, D. Maryland

April 26, 2018

KEVIN BATTLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          ELLEN LIPTON HOLLANDER, UNITED STATES DISTRICT JUDGE

         This 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).

         The 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.[1] 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 “Petition.”

         The government opposes the Petition. ECF 91 (“Opposition”).[2] 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.

         Under 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.

         I. Factual and Procedural Background

         In 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.

         Battle 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).

         At 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”);[3] 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 here.

         In 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 (Judgment)

         Battle 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.

         In its 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.

         Ultimately, 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 59.

         On 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.

         The 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 First Petition.

         II. Discussion

         A.

         Pursuant 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 . . . .”

         Petitioner's 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).[4] 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 Clause”].

         The 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 § 924(e)(2)(B)(i).

         Clearly, 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. § 924(e)(2)(B)(i).

         Petitioner 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 merely on “‘[a]n offense that results in physical injury, '” unless it also involves “the use or threatened use of force . . . .” ECF 92 at 3.

         According to Battle, “the government deeply misunderstands” the Supreme Court's decision in Johnson I, 559 U.S. 133, and the Fourth Circuit's decision in Torres-Miguel, 701 F.3d 165. ECF 92 at 1. In his view, Johnson I and Torres-Miguel “dictate that Maryland assault with intent to murder is not a ‘violent felony' under the ACCA force clause because it can be committed without violent physical force, i.e., ‘strong physical force.'” Id. For example, he posits that a murder committed by poisoning does not require use of force and thus it would not amount to a violent felony. ECF 92 at 2. As another illustration, Petitioner observes that assault with intent to murder can be committed by acts of omission, such as refusing to provide food or medicine to a child, which would not require the use of force. ECF 92 at 6; ECF 105 at 2.[5]Consequently, Battle argues that the Court's sentence of 180 ...


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