NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 17 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-55830

Plaintiff-Appellee, D.C. Nos. 2:16-cv-04622-TJH 2:98-cr-00682-RAP-1 v.

SCOTT WEHMHOEFER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Terry J. Hatter, Jr., District Judge, Presiding

Argued and Submitted June 1, 2020 Submission Vacated June 5, 2020 Resubmitted November 13, 2020 Pasadena, California

Before: FERNANDEZ and LEE, Circuit Judges, and ORRICK,** District Judge. Dissent by Judge ORRICK

Scott Wehmhoefer collaterally attacks his sentence via a 28 U.S.C. § 2255

motion. He claims that he was sentenced to life in prison under the residual clause

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable William H. Orrick, United States District Judge for the Northern District of California, sitting by designation. of the federal three strikes law, 18 U.S.C. § 3559(c)(2)(F)(ii), and asserts that the

clause’s statutory language is similar to language held void for vagueness by the

Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015). He also claims

actual innocence of his sentence under a 28 U.S.C. § 2241 habeas petition. The

district court found Wehmhoefer’s § 2255 motion untimely. But the district court

proceeded to address his claim under the actual innocence exception to § 2255 that

excuses untimeliness or procedural default. The district court held that

Wehmhoefer’s prior convictions for aggravated robbery in violation of Texas Penal

Code § 29.03 constituted serious violent felonies for purposes of the federal three

strikes law, 18 U.S.C. § 3559, under the federal provision’s force clause. The district

court thus rejected his claim of actual innocence and denied habeas relief.

Wehmhoefer timely appealed. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253. We review the district court’s denial of habeas corpus de novo, Ivy v. Pontesso,

328 F.3d 1057, 1059 (9th Cir. 2003), and we affirm.

1. Timeliness: The district court properly denied Wehmhoefer’s 28 U.S.C.

§ 2255 motion as untimely. See United States v. Blackstone, 903 F.3d 1020, 1024–

29 (9th Cir. 2018). Blackstone holds that we lack authority under the Antiterrorism

and Effective Death Penalty Act of 1996 to expand retroactive rights for purposes of

habeas because a “right that a movant asserts must be ‘initially recognized by the

Supreme Court.’” 903 F.3d at 1027 (quoting 28 U.S.C. § 2255(f)(3)). The Supreme

2 Court has not squarely addressed the question of whether the residual clause of 18

U.S.C. § 3559(c) is void for vagueness. Because Wehmhoefer’s conviction became

final upon denial of certiorari by the Supreme Court in 2002, see Wehmhoefer v.

United States, 534 U.S. 1095 (2002), and Wehmhoefer filed the present motion in

2016, his motion is 13 years late. See 28 U.S.C. § 2255(f)(1).

2. Actual innocence: Federal prisoners seeking to challenge the legality of

their confinement “must generally rely on a § 2255 motion to do so.” Marrero v.

Ives, 682 F.3d 1190, 1192 (9th Cir. 2012). But one exception is allowed. Under the

“escape hatch” provided by § 2255(e), “a federal prisoner may file a § 2241 petition

if, and only if, the remedy under § 2255 is ‘inadequate or ineffective to test the

legality of his detention.’” Id. at 1192 (quoting Stephens v. Herrera, 464 F.3d 895,

897 (9th Cir. 2006)). A remedy under § 2255 is inadequate, and therefore a § 2241

habeas petition appropriate, where a prisoner “(1) makes a claim of actual innocence,

and (2) has not had an ‘unobstructed procedural shot’ at presenting that claim.”

Stephens, 464 F.3d at 898. Claims of actual innocence may sound in both legal and

factual insufficiency. See Allen v. Ives, 950 F.3d 1184, 1190 (9th Cir. 2020). To

determine what constitutes an “unobstructed procedural shot,” we consider “(1)

whether the legal basis for petitioner’s claim ‘did not arise until after he had

exhausted his direct appeal and first § 2255 motion;’ and (2) whether the law

changed ‘in any way relevant’ to petitioner’s claim after that first § 2255 motion.”

3 Harrison v. Ollison, 519 F.3d 952, 960 (9th Cir. 2008) (quoting Ivy, 328 F.3d at

1060). “If an intervening court decision after a prisoner’s direct appeal and first §

2255 motion ‘effect[s] a material change in the applicable law[,]’ then the prisoner

did not have an unobstructed procedural shot to present his claim.” Allen, 950 F.3d

at 1190 (quoting Alaimalo v. United States, 645 F.3d 1042, 1047–48 (9th Cir. 2011)).

Wehmhoefer claims legal innocence of his life sentence, not factual innocence

of his underlying aggravated robbery convictions. He argues that his prior

convictions under Texas Penal Code § 29.03 are not serious violent felonies for

purposes of 18 U.S.C. § 3559. Allen held that claims sounding in Descamps v.

United States, 570 U.S. 254 (2013) and Mathis v. United States, 136 S. Ct. 2243

(2016) are retroactively applicable. See Allen, 950 F.3d at 1190–91. Until Allen,

Wehmhoefer did not have an unobstructed procedural shot to assert this claim. See

id. at 1191 (holding that the “legal basis for this argument arose only after

[petitioner] had appealed and after he had filed his § 2255 motion”). We thus proceed

to the merits of Wehmhoefer’s argument.

3. Merits: Convictions for aggravated robbery under Texas Penal Code

§ 29.03 constitute enumerated felonies under the federal three strikes law, 18 U.S.C.

§ 3559.1 The enumerated clause of § 3559(c)(2)(F)(i) begins with a broad prefatory

1 Aggravated robbery under Texas Penal Code § 29.03 incorporates the elements of standard robbery under § 29.02. See Tex. Penal Code Ann. § 29.03(a) (“A person commits an offense if he commits robbery as defined in Section 29.02, and he . . .

4 statement defining serious violent felony as “a Federal or State offense, by whatever

designation and wherever committed, consisting of . . . robbery (as described in [18

U.S.C. §§] 2111, 2113, or 2118).” 18 U.S.C. § 3559(c)(2)(F)(i). To determine

whether Texas robbery qualifies as a predicate conviction for purposes of 18 U.S.C.

§ 3559, we must engage in either a categorical or modified categorical analysis. See

Mathis, 136 S. Ct. at 2248. Under the categorical approach, we consider whether the

elements of the state crime match, or are narrower than, the federal offense. See id.

But if the statute is divisible, we deploy the modified categorical approach. See id.

at 2249. Under that analysis, we look to a limited class of documents in the record,

like an “indictment, jury instructions, or a plea agreement and colloquy,” to

determine the crime (and its attendant elements) for which the defendant was

convicted. See id. If the defendant’s conviction and its elements are narrower than

or coextensive with the federal offense, then the overall offense qualifies as a strike.

See id at 2250–51.

Texas law is not a categorical match with federal law because, unlike federal

law, defendants in Texas may be convicted of robbery involving reckless conduct.

Compare Tex. Penal Code § 29.02(a)(1) (robbery occurs if during commission of

theft defendant “intentionally, knowingly, or recklessly causes bodily injury to

uses or exhibits a deadly weapon.”). Therefore, if Texas robbery constitutes a serious violent felony (as we conclude), then Texas aggravated robbery is necessarily a serious violent felony.

5 another”), with 18 U.S.C. §§ 2111, 2113, 2118 (robbery does not encompass reckless

behavior). But Texas Penal Code § 29.02 is a divisible statute.2 TPC § 29.02

provides: “A person commits an offense if, in the course of committing theft . . . and

with intent to obtain or maintain control of the property, he: (1) intentionally,

knowingly, or recklessly causes bodily injury to another; or (2) intentionally or

knowingly threatens or places another in fear of imminent bodily injury or death.”

Tex. Penal Code § 29.02(a) (emphasis added). Robbery-by-injury (§ 29.02(a)(1)) is

possible where a defendant is found to have been reckless, but robbery-by-threat

(§ 29.02(a)(2)) only occurs when a jury finds that a defendant acts either knowingly

or intentionally. Differing mens rea requirements are a hallmark of divisibility. See

Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014) (citing Descamps, 133 S. Ct.

at 2285) (noting that it is “black-letter law that a statute is divisible only if it contains

multiple alternative elements, as opposed to multiple alternative means”). Further,

“indivisible statutes are indivisible precisely because the jury need not agree on

anything past the fact that the statute was violated. As long as the defendant’s

conduct violates the statute, the jury can disagree as to how[.]” Id. at 1085. (citing

2 Although the Texas Court of Appeals in Burton v. State, 510 S.W.3d 232, 237 (Tex. App. 2017) held that “causing bodily injury or threatening the victim are different methods of committing the same offense,” it does not undermine our conclusion that Texas Penal Code § 29.03 is divisible. See United States v. Lerma, 877 F.3d 628, 634 n. 4 (5th Cir. 2017) (explaining that “[i]t is unclear whether the [Burton] court was referring to the elements of a crime, the means of satisfying a single element, or the crimes set forth by a statute under a Mathis analysis”).

6 Descamps, 133 S. Ct. at 2290)).

Because the statute is divisible, we employ the modified categorical approach

to assess whether Wehmhoefer’s robbery convictions qualify as strikes. The parties

agree — and his multiple indictments reflect — that Wehmhoefer was convicted in

Texas of robbery-by-threat (§ 29.02(a)(2)). Texas robbery-by-threat matches federal

law. Compare Tex. Penal Code § 29.02(a)(2), with 18 U.S.C. §§ 2111, 2113, 2118.

Because the Texas robbery statute is divisible and the provision for which

Wehmhoefer was convicted parallels federal law, his convictions were properly held

to be a serious violent felonies for purposes of federal three strikes. Any error

resulting from the district court’s conclusion that robbery in Texas is a serious

violent felony under the force clause is harmless; the result does not differ.

AFFIRMED.

7

FILED

USA v. Wehmhoefer, No. 18-55830

NOV 17 2020

ORRICK, District Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent. Texas law establishes that Texas Penal Code § 29.02

is indivisible, meaning that the modified categorical approach applied by my

colleagues is not appropriate. Not only do indictments in Texas charge both

robbery-by-injury and robbery-by-threat in a single count, but juries can and do

lawfully convict defendants under Section 29.02 without unanimously deciding

that they committed either. These facts should end our inquiry. Because Texas

robbery is not a categorical match with federal law and the statute is indivisible, I

would find that Wehmhoefer is actually innocent of his three-strikes sentence.

As this Court has described, “The critical distinction [between indivisible

and divisible statutes] is that while indivisible statutes may contain multiple,

alternative means of committing the crime, only divisible statutes contain multiple,

alternative elements of functionally separate crimes.” Rendon v. Holder, 764 F.3d

1077, 1084–85 (9th Cir. 2014) (citing Descamps v. United States, 570 U.S. 254,

264 n.2 (2013)). According to the Supreme Court, an indictment and jury

instructions that list statutory alternatives in a single count is “as clear an indication

as any” that each is a means of commission rather than a different element that

must be proven. Mathis v. United States, 136 S. Ct. 2243, 2257 (2016). Further,

“[I]f a jury could return a conviction without agreeing on which particular statutory

1 alternative applied, then the statute is indivisible . . . .” United States v. Robinson,

869 F.3d 933, 938 (9th Cir. 2017).

While the text of Section 29.02 gives the appearance of divisibility, Texas

law shows otherwise. In Cooper, the Texas Court of Criminal Appeals, that state’s

highest criminal court, determined that it was a violation of double jeopardy for the

same conduct to give rise to two robbery convictions, one by bodily injury and a

second by threat. Cooper v. State, 430 S.W.3d 426, 427 (Tex. Crim. App. 2014).

In two concurring opinions, a majority of the court expressed its agreement that

“the ‘threat’ and ‘bodily’ injury elements of robbery are simply alternative

methods of committing a robbery.” Id. at 434 (Keller, P.J., concurring); see id. at

439 (Cochran, J., concurring) (“agree[ing] with Presiding Judge Keller” that

robbery-by-threat and robbery-by-injury are alternative methods); see also Burton

v. State, 510 S.W.3d 232, 237 (Tex. App. 2017) (“The two concurring opinions

issued by the [Cooper] court agreed that aggravated robbery causing bodily injury

and aggravated robbery by threat are alternative methods of committing the offense

of aggravated robbery.”); Martin v. State, No. 16-cr-00198, 2017 WL 5985059, at

*3 (Tex. App. Dec. 1, 2017) (describing an indictment in which one count included

both injury and threat alternatives).

In Burton, the court relied on Cooper to reject a defendant’s contention that

it was error not to require the jury to reach unanimous agreement on which type of

2 robbery he committed. Burton, 510 S.W.3d at 235–37. In that case, the defendant

was indicted for one count of aggravated robbery, with the first paragraph

referencing bodily injury and a second referencing threatening the victim. Id. at

236. The court determined that it was not error for the trial court to instruct the

jury in the disjunctive because although Texas law entitles defendants to a

unanimous verdict, a general verdict is acceptable “where alternative theories

involve the commission of the ‘same offense.’” Id. at 237 (quoting Rangel v.

State, 199 S.W.3d 523, 540 (Tex. App. 2006)) (internal quotation marks omitted);

see also Landrian v. State, 268 S.W.3d 532, 533 (Tex. Crim. App. 2008) (“The

jury did not have to be unanimous on the aggravating factors of whether it was a

‘serious’ bodily injury or whether appellant used a deadly weapon.”). The

conviction could stand because under Cooper, “causing bodily injury or

threatening the victim are different methods of committing the same offense.”

Burton, 510 S.W.3d at 237.1

Texas law is clear that defendants can be—and are—charged, tried, and

convicted without unanimous agreement over whether they committed robbery-by-

injury or robbery-by-threat. As a result, Section 29.02 is indivisible. See Mathis,

1 My colleagues approvingly cite United States v. Lerma, 877 F.3d. 628, 634 n.4 (5th Cir. 2017), which complains that Burton’s statement of the law is unclear. I do not find it so; its central holding is consistent with Cooper, with the other Texas cases cited above, and with the analysis in this dissent.

3 136 S. Ct. at 2257; Robinson, 869 F.3d at 938. The parties’ agreement that

Wehmhoefer was convicted of robbery-by-threat is immaterial; the modified

categorical approach does not apply. See Mathis, 136 S. Ct. at 2251 (“How a given

defendant actually perpetrated the crime . . . makes no difference.”) (internal

citation omitted); Descamps, 570 U.S. at 265 (“Whether Descamps did break and

enter makes no difference.”). For that reason, I respectfully dissent.

4