In In re Welch, No. 18-10592 (Mar. 15, 2018) (Ed Carnes, William Pryor, Hull) (per curiam), the Court denied a pro se application for leave to file a successive Johnson 2255 motion to vacate his ACCA sentence of life.
In denying the application, the Court did not consider whether the successive 2255 motion would be timely. Instead, it denied the application because the petitioner would still have three violent felonies under the elements clause. First, it held that his conviction for Alabama first degree robbery satisfied the elements clause, because it required force with the intent to overcome physical resistance. For support, the Court cited its decision in Fritts holding that Florida robbery satisfied the elements clause.
Second, it held that his two convictions for Alabama first degree assault also satisfied the elements clause. Because the statute was divisible, the Court applied the modified categorical approach, which the Court noted permitted consideration of undisputed PSI facts. The indictments, plea colloquy, and undisputed PSI facts reflected that his assault convictions were for intentionally causing serious physical injury by means of a deadly weapon or dangerous instrument. And the Court concluded that the "serious physical injury" element necessarily satisfied the elements clause under Curtis Johnson.
