15‐2674 (L)
Williams v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 26th day of October, two thousand and
seventeen.
PRESENT: ROBERT D. SACK,
PETER W. HALL,
CHRISTOPHER F. DRONEY,
Circuit Judges.
______________________
TREVOR WILLIAMS,
Petitioner‐Appellant,
‐v.‐ 15‐2674, 15‐3503
UNITED STATES OF AMERICA,
Respondent‐Appellee.
______________________
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FOR PETITIONER‐APPELLANT:
Daniel Habib, Federal Defenders of
New York, Inc., New York, NY.
FOR RESPONDENT‐APPELLEE:
Michael Krouse, Margaret Garnett,
Assistant United States Attorneys, for
Joon H. Kim, Acting United States
Attorney for the Southern District of
New York, New York, NY.
Appeal from a judgment of the United States District Court for the
Southern District of New York (Berman, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
I. Prior Proceedings
Petitioner‐Appellant Trevor Williams was convicted in the District Court
for the Southern District of New York of being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court sentenced him
pursuant to the Armed Career Criminal Act (ʺACCAʺ or the ʺActʺ), 18 U.S.C.
§ 924(e), to 192 monthsʹ imprisonment and five yearsʹ supervised release.
Williams appealed to this Court, arguing, among other things, that he should not
have been sentenced under the ACCA because he did not have at least three
previous violent‐felony convictions. United States v. Williams, 526 F. Appʹx 29, 36‐
37 (2d Cir. 2013) (ʺWilliams Iʺ).
This Court decided that Williams had three or more prior convictions
qualifying as violent felonies, viz. (1) a 1993 conviction for third‐degree robbery,
in violation of New York Penal Law (ʺNYPLʺ) § 160.05; (2) a 1994 second‐degree
attempted robbery conviction, in violation of NYPL §160.10; and (3) a 1997
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second‐degree assault conviction, in violation of NYPL § 120.05(2). Williams I,
526 F. Appʹx at 37. Because the Second Circuit had previously found that
convictions pursuant to § 160.05 (robbery in the third degree) and § 120.05(2)
(assault) qualified categorically as violent felonies under the Armed Career
Criminal Act, and that § 160.10 adopted the same robbery definition as § 160.05,
we held that Williams was properly adjudicated as an armed career criminal. Id.
(citing United States v. Walker, 442 F.3d 787, 789 (2d Cir. 2006) (§ 120.05(2)); United
States v. Brown, 52 F.3d 415, 425‐426 (2d Cir. 1995) (§ 160.05)).
On April 21, 2015, Williams, acting pro se, petitioned for habeas relief
under 28 U.S.C. § 2255, asserting, among other things, that he had been wrongly
sentenced under the ACCA because his prior convictions were not ʺviolent
feloniesʺ within the meaning of that Act and that he had been sentenced
improperly under the Actʹs ʺresidual clause.ʺ See Williams v. United States, No.
15‐Civ‐3302, 2015 WL 4563470, at *4‐5, 2015 U.S. Dist. LEXIS 97107, at *9‐11
(S.D.N.Y. July 20, 2015). The district court denied Williamsʹs habeas petition,
concluding that because the Second Circuit had previously determined that
Williams qualified as a violent felony offender under the ACCA, this issue could
not be relitigated in a § 2255 petition. Id., 2015 U.S. Dist. LEXIS 97107 at *11. The
district court also found that although the Supreme Court had struck down the
ʺresidual clauseʺ in Johnson v. United States, 135 S. Ct. 2551 (2015) (ʺ2015 Johnsonʺ),
for being unconstitutionally vague, Williams was not classified or sentenced
pursuant to this clause. Williams, 2015 WL 4563470 at *5, 2015 U.S. Dist. LEXIS
97107 at *11.
II. The Law‐of‐the‐Case Doctrine
On appeal, Williams argues that none of his prior convictions qualify as
ACCA predicates within the meaning of the Act. However, he has not identified
any intervening changes in law, or any other circumstances, that would justify
reconsidering this Courtʹs holding in Williams I.
Under 28 U.S.C. § 2255(a), a federal prisoner ʺmay move the court which
imposed the sentence to vacate, set aside or correct the sentenceʺ ʺupon the
ground that the sentence was imposed in violation of the Constitution or laws of
the United States[.]ʺ Because ʺ[t]he law of the case ordinarily forecloses
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relitigation of issues expressly or impliedly decided by the appellate court,ʺ
United States v. Quintieri, 306 F.3d 1217, 1229 (2d Cir. 2002) (internal quotation
marks omitted), we have made clear that ʺsection 2255 may not be employed to
relitigate questions which were raised and considered on direct appeal.ʺ United
States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007) (quoting Cabrera v. United States,
972 F.2d 23, 25 (2d Cir. 1992) (internal quotation marks omitted)). Nevertheless,
the law‐of‐the‐case doctrine ʺremains a matter of discretion, not jurisdiction,ʺ id.
at 127, and this Court may find it appropriate to revisit an earlier decision if
presented with ʺcogent or compelling reasonsʺ to do so. United States v. Tenzer,
213 F.3d 34, 39 (2d Cir. 2000) (internal quotation marks omitted). Such reasons
may include ʺan intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice.ʺ
Tenzer, 213 F.3d 34 at 39 (internal quotation marks omitted).
Williams argues that the law‐of‐the case doctrine does not apply because
his present claim was not raised or decided on direct appeal. In its summary
order affirming Williamsʹs conviction and sentence in Williams I, however, we
considered and then rejected the precise claim that Williams raises in his habeas
petition: that his ACCA‐based sentence was unconstitutional because he did not
have at least three prior violent felony‐convictions. As this Court wrote,
Williams has three or more prior convictions that qualify as violent
felonies: (1) a 1993 conviction for third‐degree robbery, in violation of New
York Penal Law (“NYPL”) § 160.05; (2) a 1994 second‐degree attempted
robbery conviction, in violation of NYPL § 160.10; and (3) a 1997 second‐
degree assault conviction, in violation of NYPL § 120.05(2). We have
previously determined that convictions pursuant to NYPL §§ 160.05
(robbery in the third degree) and 120.05(2) (assault) qualify, categorically,
as violent felonies under the Armed Career Criminal Act. Furthermore, as
NYPL § 160.10 adopts the same definition of robbery as § 160.05, except
that the degree is second instead of third, it too qualifies as a violent
felony.
Williams I, 526 F. Appʹx at 37 (citations omitted).
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Williamsʹs further contention that his argument based on the Supreme
Courtʹs decision in Johnson v. United States, 559 U.S. 133 (2010) (ʺ2010 Johnsonʺ)
was not raised on direct appeal is unavailing. In 2010 Johnson, the Supreme
Court determined that a defendantʹs battery conviction under Florida law was
not a violent felony under the ACCA because it did not involve violent force. Id.
at 138‐143. In his brief on direct appeal, Williams quoted 2010 Johnson to argue
that his 2005 attempted second‐degree assault conviction does not qualify as a
violent felony under the ACCA. Also, in Williams I, this Court implicitly
determined that New York third‐degree robbery ʺqualif[ies], categorically, as [a]
violent felon[y] under the Armed Career Criminal Actʺ notwithstanding 2010
Johnson. Williams I, 526 F. Appʹx at 37 (citing United States v. Brown, 52 F.3d 415,
426 (2d Cir. 1995) for this proposition).
Williams next argues that even if this Court finds the law of the case
applies, ʺan intervening change of controlling lawʺ or ʺthe need to correct a clear
error or prevent manifest injusticeʺ permits reconsideration of Williamsʹs
argument that none of his priors constitute violent felonies in the context of the
ACCA. We do not agree.
First, Williams contends that, to the extent that our decision in Williams I
depended on the residual clause, this conclusion must be revisited in light of
2015 Johnson. But neither the district court nor this Courtʹs decision in Williams I
depended on—or even addressed—the residual clause in finding that Williams
qualified for an ACCA sentence. Rather, there, we concluded that Williamsʹs
prior robberies were violent felonies based on United States v. Brown, an
elements‐clause case, which did not involve application of the residual clause.
See Williams I, 526 F. Appʹx at 37; Brown, 52 F.3d at 426. With regard to Williamsʹs
1997 second‐degree assault conviction, in Williams I, we decided that this crime
qualified as a violent felony under United States v. Walker, which rested on both
the elements and the residual clauses. See Williams I, 516 F. Appʹx at 37; Walker,
442 F.3d at 788‐789.
Second, Williams argues that the Supreme Courtʹs decision in United States
v. Castleman, 134 S. Ct. 1405 (2014), established that in the context of the ACCA,
forcible stealing does not qualify as the type of violent force required under the
Act. Castleman, however, only addressed the meaning of a ʺmisdemeanor crime
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of domestic violenceʺ as defined by 18 U.S.C. § 922(g)(9). Thus, the decision does
not squarely address the ʺviolent felonyʺ definition of ACCA, and does not
provide grounds to depart from the law of the case.
Third, Williams contends that our decision in United States v. Jones, 830
F.3d 142 (2d Cir. 2016) (ʺJones Iʺ), vacated and withdrawn from bound volume, 838
F.3d 296 (2d Cir. 2016) (ʺJones IIʺ), that a New York robbery conviction absent
other aggravating factors no longer necessarily qualifies as a crime of violence,
constitutes a change in law justifying reconsideration of Williamsʹs ACCA claim.
But Jones I has indeed been vacated, and the portion of this decision that
Williams relies upon has not been reinstated. See United States v. Jones, No. 15‐
1518‐cr (2d Cir. Sep. 11, 2017) (concluding that New York first‐degree robbery
categorically qualifies as a crime of violence under the residual clause). It is
possible that this Court will one day conclude, as we intended to in the now‐
vacated Jones I, that robbery in New York is not categorically a crime of violence
under the elements clause. The present case is not, however, in a procedural
posture in which we can address the issue. We therefore do not do so.
Finally, Williams argues that the Williams I decision was ʺin clear errorʺ or
that it would be a ʺmanifest injusticeʺ to let the judgment in that case stand. We
cannot find ʺcogent or compelling reasons,ʺ however, why the law of the case
doctrine should be discarded here. For the time being, at least, we must treat
Williams I as having been correctly decided. And there is no manifest injustice in
the district courtʹs decision; it was faithful to the Williams I holding.
We have considered Williamsʹs remaining arguments on appeal and find
them to be without merit. For the foregoing reasons, the judgment of the district
court is therefore AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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