from the United States District Court for the Western
District of Michigan at Grand Rapids. Nos. 1:12-cr-00016;
1:16-cv-00498-Paul Lewis Maloney, District Judge.
M. Reust, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids,
Michigan, for Appellee.
Tonyado Raines, Three Rivers, Texas, pro se.
Before: COLE, Chief Judge; GIBBONS and BUSH, Circuit Judges.
Tonyado Raines, a federal prisoner proceeding pro se, appeals
a district court judgment denying his 28 U.S.C. § 2255
motion to vacate his sentence. This case has been referred to
a panel of the court that, upon examination, unanimously
agrees that oral argument is not needed. See Fed. R.
App. P. 34(a).
2012, Raines pleaded guilty to one count of possessing a
firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1), and one count of possessing cocaine with
intent to distribute, in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C). The district court concluded that
Raines was subject to a statutory minimum term of 180 months
of imprisonment under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e)(2)(B), because he
had three prior convictions for controlled substance offenses
or violent felonies. Specifically, Raines had a 1991 Michigan
conviction for assault with intent to do great bodily harm
less than murder, a 2002 federal conviction for distributing
cocaine base, and a 2002 federal conviction for collecting
credit by extortionate means, in violation of 18 U.S.C.
§ 894(a)(1). The district court sentenced him to a total
term of 180 months of imprisonment, and we affirmed.
11, 2016, Raines filed a § 2255 motion to vacate, in
which he argued that he should not have been sentenced as an
armed career criminal because his 2002 convictions should
have been counted as a single offense and he, therefore, did
not have the requisite three predicate offenses. But Raines
already raised that issue on direct appeal, and we affirmed,
holding that his 2002 convictions were separate qualifying
convictions because they arose from separate criminal
episodes, even though both convictions were entered on the
same day. United States v. Raines, Nos.
12-2431/12-2432 (6th Cir. June 11, 2013) (order).
also challenges whether his prior convictions are violent
felonies "after Johnson," purporting to
lodge a claim based on Johnson v. United States, 135
S.Ct. 2551 (2015), which held the ACCA's residual clause
to be unconstitutionally vague. The district court denied
Raines's § 2255 motion, concluding that each of
Raines's predicate convictions qualified as either a
serious drug offense or violent felony without reliance on
the ACCA's now-invalidated residual clause. Specifically,
the district court held that Raines's assault conviction
qualified under the ACCA's force clause, Raines's
drug-distribution conviction qualified as a serious drug
offense, and Raines's collecting-credit-by-extortion
conviction qualified under the ACCA's enumerated-crimes
clause. Raines v. United States, No. 1:16-cv-498,
2017 WL 104093, at *2-3 (W.D. Mich. Jan. 11, 2017)
("[T]he 2002 conviction for collection of credit by
extortionate means in violation of 18 U.S.C. § 894(a)(1)
is a 'violent felony' because it is a crime of
'extortion' under 18 U.S.C. §
district court denied Raines a certificate of appealability,
but we granted one on the following issues: (1) whether
Raines's Johnson claim is properly before this
court on appeal; and (2) whether Raines is entitled to relief
based on Johnson because his 2002 conviction under
18 U.S.C. § 894(a)(1), for collecting credit by
extortionate means, was counted as a violent felony under the
ACCA's now-invalidated residual clause. Raines v.
United States, No. 17-1457 (6th Cir. Oct. 26, 2017)
appeal, Raines argues that the Johnson issue is
properly before us and that we must review the merits of the
district court's decision. He also argues that his prior
conviction for collecting credit by extortionate means in
violation of § 894(a)(1) should not have been counted as
a violent felony under the ACCA because it is not covered by
the use-of-force clause and it is not equivalent to the
generic crime of "extortion."
government argues that Raines cannot claim an entitlement to
relief under Johnson: because Raines's
sentencing record is silent as to which of the ACCA's
clauses the district court relied upon in treating his
extortionate-collection charge as a violent felony, Raines
cannot show that the district court relied specifically on
the residual clause. The government argues that
it is not enough for a defendant seeking collateral relief
simply to assert that his claim arises under
Johnson; he must show that more likely than not, he
was sentenced as an armed career criminal based on the
residual clause. E.g., Beeman v. United States, 871
F.3d 1215, 1224 (11th Cir. 2017) (defendant has the
"burden of establishing that he, in fact, was sentenced
as an armed career criminal . . . solely because of the
residual clause"); United States v. Snyder, 871
F.3d 1122, 1129 (10th Cir. 2017) (courts should take a
"snapshot" of law at the time and find burden
unsatisfied if there was no need to rely on residual clause
at the time); but see United States v. Winston, 850
F.3d 677, 682 (4th Cir. 2017) (declining to impose burden on
movants); United States v. Geozos, 870 F.3d 890, 895
(9th Cir. 2017) (same); cf. United States v. Taylor,
873 F.3d 476, 481 (5th Cir. 2017) (discussing but declining
to decide burden issue).
Appellee's Br. 11-12.
cases cited by the government reflect a circuit split, which,
at the time of the government's filing of its brief, did
not include our circuit. But we have since entered the fray,
siding with the Tenth and Eleventh Circuits in putting a
Johnson claimant up to the seemingly improbable task
of proving that his sentencing judge "relied only on the
residual clause in sentencing" him. Potter v. United
States, 887 F.3d 785, 787 (6th Cir. 2018). See also
Dimott v. United States, 881 F.3d 232, 234, 241-42 (1st
Cir. 2018), pet. for cert. filed sub nom. Casey v. United
States (U.S. Mar. 8, 2018) (No. 17-1251) (creating a
three-way circuit split by dismissing petitioners' claims
as "untimely" where they brought putative
Johnson claims within one year of Johnson
but could not "establish by a preponderance of the
evidence . . . that [their] ACCA sentence[s] rested on the
residual clause"). This burden, of course, presents a
tall order when a movant's sentencing record (like
Raines's and Potter's) is silent as to which ACCA
clause a district court applied. And it makes sense that a
movant's sentencing record (like Raines's) would be
silent as to which specific ACCA clause was being applied
when the sentence was handed down well before the Supreme
Court's decisions in Descamps v. United States,
570 U.S. 254 (2013), Johnson, 135 S.Ct. 2551, and
Mathis v. United States, 136 S.Ct. 2243 (2016).
But see United States v. Quarles, No.
1:14-cr-29-RJJ, R.40 at 20 (W.D. Mich. Mar. 5, 2015)
(transcript of sentencing hearing) (expressly relying on
residual clause and declining to invoke enumerated-offenses
clause while observing that the Supreme Court had granted
certiorari in Johnson and opining that imposing an
ACCA enhancement under both clauses might pose a
"severance problem" in the event that the Court
invalidates the residual clause).
Potter is precedential, so we must determine whether
it precludes Raines from asserting his Johnson
claim. For two reasons, it does not.
Potter involved a movant on a
second-or-successive motion for relief.
Potter, 887 F.3d at 787. Such a movant faces a
statutory hurdle that first-time movants do not face: the
habeas statute "permits a second collateral attack only
if it rests on new facts or 'a new rule of
constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.'" Ibid. (citing 28 U.S.C.
§§ 2255(h), 2244(b)) (emphasis added). In
Potter, we relied on that provision to hold that
Potter could not base his entitlement to relief on
Mathis, 136 S.Ct. 2243 (analyzing the ACCA's
enumerated-offenses clause), because "Mathis
involved an old rule of statutory law, not a new rule of
constitutional law." Potter, 887 F.3d at 788.
The Supreme Court's decision in Johnson did
indeed announce a new rule of constitutional law
retroactively applicable to cases on collateral review.
Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
But because Potter could not show that his second collateral
attack rested solely on Johnson itself-that is, that
the district court sentenced him based on the residual clause
invalidated by Johnson and not, for example, based
on an interpretation of the use-of-force clause or
enumerated-offenses clause that a decision like
Mathis may have called into question-Potter could
not clear 28 U.S.C. § 2255(h)'s statutory hurdle to
raising that collateral attack in the first instance. That
hurdle does not apply to Raines, whose first ...