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Steiner v. United States

United States Court of Appeals, Eleventh Circuit

October 16, 2019

JAMES STEINER, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee.

          Appeal from the United States District Court D.C. Docket Nos. 2:14-cv-01256-WKW-TFM; 2:09-cr-00113-WKW-TFM-2 for the Middle District of Alabama

          Before WILSON and NEWSOM, Circuit Judges, and PROCTOR, [*] District Judge.

          PER CURIAM.

         James Steiner appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, challenging his conviction for aiding and abetting the offense of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2 and 924(c). Steiner first argues that the district court erred by denying his motion because the government did not present sufficient evidence at trial that he had advance knowledge his co-conspirators would use or carry a firearm during the underlying crime of violence, as required by Rosemond v. United States. See 572 U.S. 65, 67 (2014). We have not yet addressed whether Rosemond applies retroactively to cases on collateral review. We hold today that it does. Nonetheless, we conclude that Steiner is not entitled to relief under Rosemond because the evidence at trial was sufficient for a reasonable jury to infer that he had advance knowledge his co-conspirators would use or carry firearms during the underlying crime of violence.

         Steiner also argues that his conviction is unconstitutional because the underlying crime of violence-aiding and abetting a carjacking-no longer qualifies as a crime of violence after United States v. Davis, 588 U.S., 139 S.Ct. 2319, 2336 (2019) (holding that the residual clause in § 924(c)(3)(B) is unconstitutionally vague). However, our prior precedent demonstrates that aiding and abetting a carjacking qualifies as a crime of violence under the elements clause of § 924(c)(3)(A). Therefore, Davis does not affect Steiner's § 924(c) conviction.

         Steiner further argues that the district court erred by denying his claim that counsel was ineffective for failing to object to the jury charge, which lacked an instruction on advance knowledge. But because advance knowledge was not a requirement of a conviction for aiding and abetting a § 924(c) offense at the time of Steiner's trial, we conclude that counsel was not ineffective for failing to make such an objection.

         Finally, Steiner asserts that the district court failed to grant or deny a certificate of appealability (COA) regarding his claim that the jury instructions themselves were erroneous under Rosemond. He asks us to remand this matter to the district court for the limited purpose of ruling on that issue. We decline to do so because the district court's order regarding a COA effectively denied a COA regarding Steiner's jury-instruction claim.

         I. Background

         A grand jury charged Steiner and one of his co-conspirators, Wayne Ware, with (1) conspiracy to commit carjacking, in violation of 18 U.S.C. § 371; (2) aiding and abetting carjacking, in violation of 18 U.S.C. §§ 2 and 2119; and (3) aiding and abetting the crime of using or carrying a firearm during and in relation to a crime of violence-here, aiding and abetting a carjacking-in violation of §§ 2 and 924(c)(1)(A). According to the indictment, Steiner and Ware committed the carjacking with two other young men, Torie Wilson and Jihad Walker. Steiner and Ware were tried together in the Middle District of Alabama in 2009.

         At trial, the testimony of Walker and two victims established the following.[1]Steiner, Walker, Wilson, and Ware met up on the evening of the carjacking. At some point that evening, Ware suggested they "go hit a lick," which Walker understood to mean "go try to get some money" by robbing someone. No one objected to Ware's suggestion. Instead, the group got into Walker's Chevy Blazer and drove off in search of a target. Before they left, Walker saw Ware load two firearms into the vehicle-a pistol and an AK-47. Ware did not attempt to conceal the guns from the others. But, importantly, there was no evidence presented at trial that Steiner observed Ware loading the guns into the car. When they left, Steiner drove, Walker sat in the front passenger seat, and Wilson and Ware sat in the backseat.

         That same evening, Megan Patterson was driving around in her Chevy Impala with three friends, Melissa Nolan, S.H., and S.R.[2] Around 11:30 p.m., they stopped briefly at a gas station to purchase some items. When they left, Patterson was driving, Nolan was in the front passenger seat, and S.H. and S.R. were in the back seat. Unfortunately for Patterson and her friends, Steiner and his co-conspirators had arrived at the same gas station, observed Patterson and her companions, and decided to target them. Steiner followed Patterson's Impala as it left the gas station.

         Shortly thereafter, Steiner drove up very fast behind the Impala with his bright lights on, passed the Impala, pulled in front of it, and slammed on the brakes. Patterson was unable to stop in time and hit the Blazer. Steiner, Walker, Wilson, and Ware got out of the Blazer and began approaching the Impala. Wilson and Ware brandished the guns and began firing them.[3]

         Patterson observed that one gun was a pistol and one was a "long gun" with a "banana clip." She immediately ducked, reversed her car into a ditch, and hit a tree. S.H. and S.R. managed to get out of the car and escape into the woods. But Patterson did not get out of the car for fear of being shot, and Nolan could not get out of the car because her door was blocked.

         Steiner and his co-conspirators approached the Impala and demanded Patterson's and Nolan's money and purses. Patterson and Nolan handed the items over. The four men then returned to the Blazer, only to discover it would not start. Patterson and Nolan saw the four men talking amongst themselves. Meanwhile, Nolan called her mom, but the call was cut short when Steiner and the others returned a few moments later and asked Patterson and Nolan for their cell phones and keys. One of the men told Patterson to get out of the car and tried to drive the Impala out of the ditch, but it was stuck. Someone then told Patterson to get back in the car and Nolan to lie down in the ditch. Steiner and the others began trying to lift the car out of the ditch.

         While they were trying to free the car, a man named Corey Burkett drove down the road. Steiner, Walker, Wilson, and Ware ran into the woods and warned Patterson and Nolan not to try anything. However, Patterson motioned for Burkett to stop. Burkett began to slow down, but then he quickly drove away when one of the men shot at his vehicle. Steiner and the others returned from the woods, resumed trying to free the car, and managed to get it out of the ditch. They ordered Patterson to lie down in the ditch by Nolan and drove off in the Impala, with Steiner driving.

         Soon after Steiner drove off, a police officer started pursuing the Impala. Steiner began to slow down because, according to Walker, he was considering telling the police what happened. But the others told Steiner to keep going, and he did. He eventually lost the police. The men abandoned the car, ran into the woods, and called someone to give them a ride home. The victims reported the carjacking that evening, and Steiner, Walker, Wilson, and Ware were arrested within a few days.

         After the close of evidence, the district court instructed the jury. The jury charge included an instruction on aiding and abetting the using or carrying of a firearm during and in relation to a crime of violence. But, because Rosemond had not yet been decided, the court did not instruct the jury that it must find that Steiner had advance knowledge that a co-conspirator would use or carry a firearm during the carjacking. Steiner's counsel did not object to the lack of an instruction. The jury found Steiner guilty on all three counts charged in the indictment. The district court sentenced Steiner to a total sentence of 195 months.

         Steiner appealed his convictions and sentences. He argued, in relevant part, that there was insufficient evidence to support his conviction for aiding and abetting a § 924(c) offense because there was no evidence that he had carried or discharged a firearm. We affirmed Steiner's conviction under the pre-Rosemond framework for aiding and abetting a § 924(c) offense. United States v. Ware, 440 Fed.Appx. 745, 748-49 (11th Cir. 2011). In doing so, we noted that "Steiner was also aware that Ware had placed guns into the Blazer before the men left to 'go hit a lick.'" Id. at 749.

         In 2014, the Supreme Court issued its decision in Rosemond. Subsequently, Steiner filed the present § 2255 motion, raising three arguments. First, he argued that there was insufficient evidence to support his conviction for aiding and abetting a § 924(c) offense because the government did not present evidence at trial showing that he had advance knowledge one of his co-conspirators would use or carry a firearm during the robbery-turned-carjacking. He asserted that this claim was timely because Rosemond announced a new rule that applies retroactively. Second, he argued that the district court erred by failing to instruct the jury that advance knowledge was required to support a conviction for aiding and abetting a § 924(c) violation, as required by Rosemond. Third, he argued that his trial counsel was ineffective for failing to object to the erroneous jury instructions.

         Steiner amended his motion in January 2016 to include a claim under Johnson v. United States, in which the Supreme Court held that the residual clause of the Armed Career Criminal Act is unconstitutionally vague. 576 U.S., 135 S.Ct. 2551, 2563 (2015). Specifically, he argued that his conviction for aiding and abetting a § 924(c) offense was invalid because the predicate offense-aiding and abetting a carjacking-no longer qualified as a crime of violence under the similarly worded residual clause of § 924(c)(3)(B).

         The district court denied Steiner's § 2255 motion. The court first concluded that Steiner's Rosemond claim was untimely because Rosemond did not announce a new rule that applied retroactively to cases on collateral review. The court relied on our opinion in United States v. Quartavious Davis, in which we stated that Rosemond "clarified" the government's burden of proof for obtaining a conviction for aiding and abetting a violation of § 924(c). 754 F.3d 1205, 1222 (11th Cir. 2014) (Quartavious Davis), reh'g en banc granted, opinion vacated, 573 Fed.Appx. 925 (11th Cir. 2014), and reinstated in part, 785 F.3d 498 (11th Cir. 2015) (en banc). The district court further concluded that Steiner's Rosemond claim failed on the merits for two reasons. The court relied on our statement on direct appeal that "Steiner was also aware that Ware had placed guns into the Blazer before the men left to 'go hit a lick.'" In addition, the court found that Steiner's continued participation in the carjacking after Wilson and Ware initially used the firearms was sufficient to show that he had advance knowledge that his co-conspirators would use firearms during the offense.

         Next, the district court found that Steiner's jury-instruction and ineffective-assistance-of-counsel claims were untimely for the same reason his direct Rosemond claim was untimely. The court also found that the jury-instruction claim was procedurally barred because Steiner had not raised it on direct appeal and counsel could not be deemed ineffective for failing to predict a Supreme Court ruling. Finally, the court found that Johnson did not invalidate Steiner's § 924(c) conviction because aiding and abetting a carjacking qualified as a crime of violence under the elements clause of § 924(c)(3)(A).

         Steiner appealed and moved for a COA on all four claims. The district court granted a COA on the following issues: (1) whether Steiner's § 924(c) conviction was unconstitutional in light of Rosemond; (2) whether the same conviction was unconstitutional in light of Johnson; and (3) whether counsel was ineffective for failing to object to the jury instructions. The court did not address Steiner's request for a COA on the issue of whether the jury instructions themselves were erroneous under Rosemond.

         On appeal, Steiner recasts his Johnson claim as a claim under the Supreme Court's recent decision in Davis. See Davis, 139 S.Ct. at 2336. In addition to arguing the issues specified in the COA, Steiner argues that the district court erred by failing to address his jury-instruction claim in the order granting a COA. He ...


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