Clifford Senter v. United States

983 F.3d 1289

Opinion

USCA11 Case: 18-11627 Date Filed: 12/30/2020 Page: 1 of 13

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-11627 ________________________

D.C. Docket Nos. 5:16-cv-08107-LSC; 5:99-cr-00102-LSC-TMP-1

CLIFFORD SENTER,

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

Respondent – Appellee.

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________

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Before NEWSOM and BRANCH, Circuit Judges, and BAKER,* District Judge.

BAKER, District Judge:

Clifford Senter, a federal prisoner, appeals from the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate sentence. Before the district court, Senter

argued, in relevant part, that he no longer qualified as an armed career criminal in

light of Johnson v. United States, 576 U.S. 591 (2015), because his prior 1988

Alabama conviction for attempted first-degree robbery was not a crime in the state

and as such had no state law elements. The district court rejected this portion of

Senter’s purported Johnson claim as an improper collateral attack on his state

conviction. We granted a certificate of appealability to determine whether the

district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992) (en banc), by

misapprehending and thereby failing to address his argument that he no longer

qualified as an armed career criminal post-Johnson because his prior Alabama

attempted first-degree robbery conviction contained no state law elements.

However, a close review of the district court’s opinion reveals that it correctly

identified and sufficiently addressed Senter’s claim. Therefore, after careful

review and with the benefit of oral argument, we will affirm.1

* Honorable R. Stan Baker, United States District Judge for the Southern District of Georgia, sitting by designation. 1 We sua sponte VACATE and WITHDRAW the previous opinion filed on November 30, 2020 and appearing at Senter v. United States, F.3d , No. 18-11627, 2020 WL 6685299, at *1 (11th Cir. Nov. 13, 2020), and issue this opinion in its place. The previous opinion may not be cited by or to this Court or any district court of the Eleventh Circuit. 2 USCA11 Case: 18-11627 Date Filed: 12/30/2020 Page: 3 of 13

I

In 1999, a jury in the Northern District of Alabama found Senter guilty of

armed bank robbery in violation of 18 U.S.C. § 2113(a), (d), and 2 (Count I); using

and carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. §

924(c)(1)(A)(iii) (Count II); and possessing a firearm after a felony conviction in

violation of 18 U.S.C. § 922(g)(1) (Count III). Normally, a violation of 18 U.S.C.

§ 922(g)(1) carries a maximum penalty of ten years in prison. 18 U.S.C. §

924(a)(2). However, Senter’s Presentence Investigation Report (“PSI”) provided

that under the Armed Career Criminal Act (“ACCA”) Senter qualified for an

enhanced sentence because he had three prior violent felony convictions. The PSI

based its finding on Senter’s three prior Alabama convictions: (1) a 1988 second-

degree robbery; (2) a 1988 attempted first-degree robbery; and (3) a 1992 third-

degree robbery.

At the time of Senter’s sentencing, a conviction could qualify as a violent

felony conviction under three different ACCA definitional clauses. 18 U.S.C. §

924(e)(2)(B)(i)–(ii). A conviction could qualify as a violent felony under the

ACCA’s so-called “elements clause” if it had “as an element the use, attempted

use, or threatened use of physical force against the person of another[,]” or it could

qualify under the “enumerated clause” if it was for “burglary, arson, . . . extortion

[or] involve[d] use of explosives.” 18 U.S.C. § 924(e)(2)(B)(i)–(ii); In re Hires,

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825 F.3d 1297, 1298–99 (11th Cir. 2016). Finally, under the statute’s “residual

clause,” a violent felony conviction also included “conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).

During the sentencing hearing, Senter made no objections to the PSI. The

district court subsequently adopted the PSI and found that Senter was an armed

career criminal. However, the district court did not specify whether the prior

convictions qualified as violent felonies under the residual clause or instead under

one of the ACCA’s other definitional clauses. The district court applied the ACCA

enhanced sentencing requirement and sentenced Senter to a term of three hundred

months for Count I and three hundred and sixty months for Count III, to be served

concurrently. Finally, for Count II, Senter received an additional sixty months to

be served consecutively, for a total sentence of four hundred and twenty months.

This Court affirmed Senter’s conviction and sentence on direct appeal. United

States v. Senter, 232 F.3d 214 (11th Cir. 2000) (mem.).

In 2015, the United States Supreme Court decided Johnson v. United States,

holding “that imposing an increased sentence under the [ACCA’s residual clause]

violates the Constitution’s guarantee of due process.” Johnson, 576 U.S. at 606.

In June 2016, Senter, acting pro se, filed a § 2255 motion in the Northern District

of Alabama, arguing that his “[e]nhanced sentence [was] void in light of Johnson.”

After the district court appointed him counsel, Senter filed a Supplemental Brief.

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In it, he argued, among other things, that without the ACCA’s residual clause his

1988 Alabama attempted robbery conviction did not count as a violent felony for

purposes of the ACCA because attempted robbery is not a crime under Alabama

law and thus has no elements.2 Senter asserted that, without any elements, his

attempted robbery conviction did not meet either of the remaining definitions of a

violent felony because it did “not have as an element the use, attempted use, or

threatened use of physical force against a person” or “the elements of burglary,

arson, extortion [or] an element involving the use of explosives” as required by the

ACCA.

On February 5, 2018, the district court issued a Memorandum of Opinion

denying Senter’s § 2255 motion. The district court characterized Senter’s

Supplemental Brief as “argu[ing] that his attempted first-degree robbery conviction

is not a violent crime because attempted robbery has not been a criminal offense in

Alabama since 1979” or, “[i]n other words, . . . argu[ing] that his attempted

robbery conviction is invalid as a matter of Alabama state law.” The district court

rejected this argument as an impermissible collateral attack on the validity of his

2 Alabama enacted a new criminal code in 1980 which no longer recognized attempted robbery as a separate criminal offense from robbery. See Conner v. State, 955 So. 2d 473, 475 (Ala. Crim. App. 2006) (“Since the effective date of the Alabama Criminal Code, January 1, 1980, attempted robbery is no longer considered a criminal offense . . . .”); Petty v. State, 414 So. 2d 182, 183 (Ala. Crim. App. 1982) (“Because the definition of robbery has been enlarged and expanded by the new criminal code . . . the former crime of attempted robbery now constitutes robbery.”).

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state court conviction. The district court then dismissed Senter’s § 2255 motion

with prejudice.

This appeal followed.3

II

Senter argues that the district court violated Clisby v. Jones by failing to

address his claim that his Alabama attempted robbery conviction was not a violent

felony conviction for purposes of the ACCA post-Johnson because the crime does

not exist under Alabama law and thus lacks any elements. Clisby requires a federal

district court “to resolve all claims for relief raised in a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254 (1988), regardless whether habeas relief is

granted or denied.” 4 Clisby, 960 F.2d at 936. The district court classified Senter’s

claim as a collateral attack against his state sentence and dismissed it. Senter

asserts that the district court “misconstrued” his claim, and thereby failed to

address it in violation of Clisby.

3 “On an appeal of a § 2255 motion to vacate, we review legal issues de novo and factual findings for clear error.” McKathan v. United States, 969 F.3d 1213, 1222 (11th Cir. 2020). 4 We have also applied the principle announced in Clisby to claims raised in a § 2255 motion. See Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009) (per curiam) (“[T]he district court was required to comply with Clisby and resolve all claims for relief raised in [movant’s] § 2255 motion.”); see also Gay v. United States, 816 F.2d 614, 616 n.1 (11th Cir. 1987) (“[T]he principles developed in habeas cases also apply to § 2255 motions.”). 6 USCA11 Case: 18-11627 Date Filed: 12/30/2020 Page: 7 of 13

A

In Custis v. United States, the Supreme Court examined “whether a

defendant in a federal sentencing proceeding may collaterally attack the validity of

previous state convictions that are used to enhance his sentence under the ACCA.”

Custis v. United States, 511 U.S. 485, 487 (1994). The Supreme Court ultimately

held that the ACCA “does not permit [a defendant] to use the federal sentencing

forum to gain review of his state convictions” unless the conviction involved a

violation of the defendant’s right to counsel. Id. at 497. Instead, a defendant must

challenge his state sentence either in state court or through federal habeas review

via 28 U.S.C. § 2254. Id. If successful, the defendant could “then apply for

reopening of any federal sentence enhanced by the state sentences.” Id.

Several years later, in Daniels v. United States, the Supreme Court

considered whether to extend Custis to federal movants who, through § 2255

motions, challenge their federal sentence by arguing that their prior state

convictions—which had been used for federal sentence enhancement—were

unconstitutionally obtained. Daniels v. United States, 532 U.S. 374, 376 (2001).

Applying reasoning similar to that used in Custis, the Supreme Court held that a

movant could not collaterally attack a state court conviction in a § 2255 motion.

Id. at 384. Writing for the Court, Justice O’Connor noted that states have an

interest in the finality of their judgments even in the context of their use for federal

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sentencing enhancements, because “if a state conviction were determined to be

sufficiently unreliable that it could not be used to enhance a federal sentence, the

State’s ability to use that judgment subsequently for its own purposes would be, at

the very least, greatly undermined.” Id. at 379–80. This broad interpretation of

what constitutes a collateral attack aligned with the Supreme Court’s prior

statements regarding the reasoning behind the doctrine. See Parke v. Raley, 506

U.S. 20, 30 (1992) (“Respondent, by definition, collaterally attacked his previous

convictions; he sought to deprive them of their normal force and effect in a

proceeding that had an independent purpose other than to overturn the prior

judgments.”) (citing Black’s Law Dictionary 261 (6th ed. 1990) and Lewis v.

United States, 445 U.S. 55, 58, 65 (1980)).

Our own precedent also supports a broad interpretation of the parameters of

a collateral attack. In United States v. Phillips, the district court determined during

sentencing that the defendant qualified as a career offender under U.S.S.G. §

4B1.1. United States v. Phillips, 120 F.3d 227, 229 (11th Cir. 1997). However,

the district court departed downward from the sentencing guidelines and sentenced

the defendant as if he were not a career offender. Id. In explaining its decision,

the sentencing court expressed doubt as to whether the defendant was truly guilty

of the aggravated assault charge for which he had been convicted in the state court

system. Id. at 230–31. We reversed the district court’s sentence, reasoning that,

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“[f]or all intents and purposes, the district court engaged in a collateral attack on

[the defendant’s] aggravated assault conviction.” Id. at 231. We further explained

that, “in sentencing a defendant a district court cannot ignore or discount for any

purpose a prior conviction that has not been invalidated in a prior proceeding,

unless there was an unwaived absence of counsel in the proceedings resulting in

that conviction.” Id.

While Phillips was a direct appeal, the opinion taken together with Custis

and its progeny illustrates the broad parameters of the prohibition against attacking

state court convictions through federal proceedings. Petitioners are prohibited

from asserting claims which would require a district court to “ignore or discount

for any purpose a prior [state] conviction that has not been [previously]

invalidated” except “when the conviction was obtained in violation of the

defendant’s right to counsel.” Phillips, 120 F.3d at 231 (citing Custis, 511 U.S. at

486–89 and United States v. Roman, 989 F.2d 1117, 1120 (11th Cir. 1993)).

B

In his § 2255 motion, Senter argued that “[a]ttempted robbery cannot qualify

as a violent felony under either the force clause or as an enumerated offense

because it is a non-existent offense and therefore does not have any elements.”

When addressing this argument, the district court provided the following analysis,

Senter additionally argues that his attempted first-degree robbery conviction is not a violent crime because attempted robbery has not 9 USCA11 Case: 18-11627 Date Filed: 12/30/2020 Page: 10 of 13

been a criminal offense in Alabama since 1979, relying upon Conner v. State, 955 So. 2d 473, 475 (Ala. Crim. App. 2006) (“Since the effective date of the Alabama Criminal Code, January 1, 1980, attempted robbery is no longer considered a criminal offense.”). In other words, Senter argues that his attempted robbery conviction is invalid as a matter of Alabama state law. However, Senter may not collaterally attack the validity of his state-court conviction in these proceedings. See, e.g., Custis v. United States, 511 U.S. 485, 497 (1994) (“§ 924(e) does not merit Custis to use the federal sentencing forum to gain review of his state convictions”); United States v. Phillips, 120 F.3d 227, 231 (11th Cir. 1997) (“Collateral attacks on prior convictions are allowed in federal sentencing proceedings in one narrow circumstance only: when the conviction was obtained in violation of the defendant’s right to counsel.”); United States v. Jackson, 57 F.3d 1012, 1018 (11th Cir. 1995) (“Generally, we do not allow a defendant to collaterally attack in the sentence proceeding convictions being used to enhance his sentence.”). Thus, a claim that the attempted robbery conviction is not a valid conviction cannot serve as a basis to grant Senter relief.

The crux of Senter’s Clisby argument is that the district court

mischaracterized his claim as attacking the validity of his attempted robbery

conviction under Alabama law rather than as attacking the use of that conviction as

an ACCA predicate violent felony under federal law. However, the district court’s

reasoning shows that it understood at bottom that Senter’s claim would require it to

examine the validity of Senter’s state conviction. Indeed, in his motion before the

district court, Senter began his argument by contending that his attempted robbery

conviction was for a “non-existent offense.” Thus, in the first sentence of its

analysis quoted above, the district court correctly identified that Senter’s purported

Johnson claim was premised on his contention that he was convicted for a state

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law crime that did not exist at the time of his conviction. A defendant cannot be

convicted of a non-existent offense. See Adams v. Murphy, 653 F.2d 224, 225 (5th

Cir. 1981)5 (“Nowhere in this country can any man be condemned for a

nonexistent crime.”); Casey v. State, 925 So. 2d 1005, 1006 (Ala. Crim. App.

2005) (“[B]ecause [defendant] pleaded guilty to an offense that does not exist, his

conviction is void and should be set aside.”). Therefore, Senter’s claim implicitly

attacked the validity of his state conviction. Recognizing this practical import, in

the next sentence of its analysis the district court reformulated Senter’s claim by

stating, “In other words, [he] argues that his attempted robbery conviction is

invalid as a matter of Alabama state law.” This was not a misstatement of Senter’s

claim but rather simply an effort to get to the root of the problem with it—that

Senter was collaterally attacking a state court judgment. Indeed, by use of the

phrase “in other words,” the district court indicated that it recognized the actual

rather than the purported substance of Senter’s claim. Thus, the court correctly

identified the claim before it, and its reframing of the claim did not violate Clisby.

As for the analysis of Senter’s claim, to satisfy Clisby, a district court must

simply resolve a petitioner’s claim to an extent that makes it amenable to a

meaningful review on appeal. See Long v. United States, 626 F.3d 1167, 1170

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981), the Eleventh Circuit adopted the decisions of the United States Court of Appeals for the Fifth Circuit decided prior to September 30, 1981, as binding precedent.

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(11th Cir. 2010) (“[W]e have long required the district courts and administrative

boards to facilitate meaningful appellate review by developing adequate factual

records and making sufficiently clear findings as to the key issues.”). Here, the

district court’s assessment of Senter’s claim was thorough enough that we could

infer the analytic steps that were not expressly laid out in the Memorandum of

Opinion. As described above, both the Supreme Court and our own precedent

establish broad parameters for the collateral attack doctrine, and make clear that

the doctrine bars not only those claims that directly attack a state conviction but

also those that imply the invalidity of the conviction. As such, we can infer that by

citing both Custis and Phillips in support of its collateral attack determination, the

district court identified that Senter’s claim would at a minimum undermine a state

court decision (Senter’s Alabama conviction for attempted robbery) and should be

appropriately considered and analyzed as a collateral attack. To be clear, if the

district court had determined that Senter’s prior conviction lacked elements

because it was a non-existent offense under Alabama law, the district court at a

minimum would have been implying that the state conviction is invalid—after all,

as we have explained above one cannot have a valid conviction for a non-existent

offense. Such a holding, in essence, would have been sanctioning a collateral

attack to the state conviction and would have constituted an end-run around the

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Supreme Court’s decision in Custis and its progeny. 6 This recognition of Senter’s

claim as a collateral attack would necessitate dismissal of the claim, which is what

the district court did.

It may be best practice for a district court to follow a “show your work”

approach by directly restating a movant’s claim and then laying out all analytical

steps in addressing that claim. However, the district court’s approach here

correctly identified and sufficiently analyzed Senter’s claim and did not run afoul

of Clisby.

III

For the foregoing reasons, we affirm the district court’s judgment.

AFFIRMED.

6 Although Senter has suggested that granting him relief in this instance would have no effect beyond this federal proceeding, the Supreme Court rejected a virtually identical argument in Daniels. See 532 U.S. at 380 (rejecting the petitioner’s argument “that invalidating a prior conviction . . . for purposes of its use under the ACCA would have no effect beyond the federal proceeding,” and noting that “if a state conviction were determined to be sufficiently unreliable that it could not be used to enhance a federal sentence, the State’s ability to use that judgment subsequently for its own purposes, would be, at the very least, greatly undermined. [And], the State does have a real and continuing interest in the integrity of its judgments”). 13