Williams v. U.S., No. 17-3211 (ROGERS, Moore, Merritt).

Williams v. U.S., No. 17-3211 (ROGERS, Moore, Merritt).

Petitioner pleaded guilty to being a felon in possession of a firearm, and was declared an Armed Career Criminal subject to a fifteen-year mandatory minimum sentence because he had three prior convictions for violent felonies, including a conviction for felonious assault in Ohio. He filed this habeas petition challenging his sentence in light of U.S. v. Johnson, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutional. The district court denied the petition, finding that the petition was foreclosed by Sixth Circuit precedent holding that Ohio felonious assault necessarily requires the use of physical force, and therefore falls under the ACCA’s still-effective elements clause. The petitioner appealed.

The Sixth Circuit affirmed the denial, holding that U.S. v. Anderson, 695 F.3d 390 (6th Cir. 2012) unambiguously held that the Ohio felonious assault statute qualifies as a predicate violent felony under the elements clause. Because Anderson was a published opinion, the Circuit panel could not overturn it unless the Supreme Court or the en banc Circuit issued a new, inconsistent intervening opinion.

Judge Moore wrote a separate concurrence expressing her belief that Anderson should fall because the Ohio felonious assault and aggravated statutes include conduct that Congress did not target by passing the ACCA. “Serious physical harm” under Ohio law includes “[a]ny mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment,” whereas the ACCA covers “violent force,” which is limited to physical force.

Judge Merritt dissented, arguing that an intervening Supreme Court case, Mathis v. U.S., 136 S. Ct. 2243 (2016), established a new procedure for sentencing courts such that the sentencing court in this case should have considered the divisibility of the felonious assault statute as a threshold matter. Because the Anderson court did not engage in the new procedure established by Mathis, Judge Merritt does not consider it controlling in this case.