on the briefs:[*]
from the United States District Court for the District of New
Mexico (D.C. Nos. 1:15-CV-01181-MV-KBM &
M. Stevens-Block, Sheehan & Sheehan, P.A., Albuquerque,
New Mexico, for Defendant - Appellant.
D. Tierney, Acting United States Attorney, and James R.W.
Braun, Assistant United States Attorney, Office of the United
States Attorney, Albuquerque, New Mexico, for Plaintiff -
PHILLIPS, McKAY, and O'BRIEN, Circuit Judges.
O'BRIEN, Circuit Judge.
case raises a run-of-the-mill ineffective assistance of
counsel claim. It also presents an interesting Johnson
II claim-whether aiding and abetting (18 U.S.C.
§ 2) federal bank robbery (18 U.S.C. § 2113(a))
qualifies as a "violent felony" under the elements
clause of the Armed Career Criminal Act (ACCA). See
Johnson v. United States (Johnson II), --- U.S. ---, 135
S.Ct. 2551 (2015).
November 12, 2009, at 12:38 a.m., police officers from the
Albuquerque, New Mexico, Police Department were dispatched to
an apartment complex to investigate a 911 domestic violence
call. Upon their arrival, they saw Walter Lee Deiter and his
wife, D'Leah Harris, in the middle of the street. When
Deiter and Harris saw the officers, they separated, each
walking in the opposite direction. Deiter proceeded toward
the apartment complex; Officer Patricia Whelan followed him.
When Deiter went behind a staircase, Whelan temporarily lost
sight of him; he emerged a few minutes later on the
second-story open breezeway.
told Deiter to come down and talk to her. He refused and
appeared "nervous[, ] . . . looking kind of up and down
the breezeway of the second floor." (R. Vol. 2 at 199.)
When she again told him to come down, he complied. But before
doing so, he made a "squatting, bending motion"
which led Whelan to believe he had "dropped"
something illegal. (Id. at 201, 206.) She could not
see what was dropped because a three- to four-foot tall wall
obstructed her view.
Deiter came down the stairs, Whelan asked Officer Sammy
Marquez to determine what had been dropped. As Marquez
proceeded up the steps to the second-story breezeway, Deiter
took off running. Whelan and Officer Glenn St. Ong chased
him. St. Ong brought him to the ground with his taser.
Marquez arrived and held his legs down while Whelan
handcuffed him. Once he was secured, Marquez went to where
Deiter was seen on the second-story breezeway; on the floor
he found a holster containing a loaded .22 caliber revolver.
Forensic testing revealed Deiter's DNA on both the
holster and firearm. The firearm also contained a small
amount of DNA from an unidentified source.
convicted Deiter of being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. § 922(g)(1).
That offense normally carries with it a maximum sentence of
10 years imprisonment. See 18 U.S.C. §
924(a)(2). The district judge, however, concluded the ACCA
applied because Deiter had two prior convictions for a
"serious drug offense" and one prior conviction for
a "violent felony." See 18 U.S.C. §
924(e). Relevant here, she concluded his 1988 conviction for
aiding and abetting bank robbery in violation of 18 U.S.C.
§§ 2113(a) and 2 constituted a "violent
felony." This conclusion exposed him to a mandatory
minimum 15-year sentence (180 months), see 18 U.S.C.
§ 924(e)(1), and increased his guideline range from
92-115 months to 210-262 months. The judge sentenced him to
180 months. We affirmed on direct appeal. See United
States v. Deiter, 576 Fed.Appx. 814 (10th Cir. 2014)
time of Deiter's sentencing in January 2014, an offense
was a "violent felony" under the ACCA if it (1)
"has as an element the use, attempted use, or threatened
use of physical force against the person of another"
(the elements clause), (2) "is burglary, arson, or
extortion, [or] involves use of explosives" (the
enumerated offense clause), or (3) "otherwise involves
conduct that presents a serious potential risk of physical
injury to another" (the residual clause). 18 U.S.C.
§ 924(e)(2)(B). On June 26, 2015, the United States
Supreme Court decided the residual clause is
unconstitutionally vague. Johnson II, 135 S.Ct. at
2557, 2563. It left intact, however, the elements and
enumerated offense clauses. Id. at 2563. On April
18, 2016, it made Johnson II's holding
retroactive to cases on collateral review. Welch v.
United States, --- U.S. ---, 136 S.Ct. 1257, 1265
on Johnson II, Deiter filed a 28 U.S.C. § 2255
motion, claiming his prior bank robbery conviction could not
be deemed a "violent felony" supporting the ACCA
enhancement. He also argued trial counsel was ineffective for
(1) failing to challenge his ACCA sentence and (2) reading a
transcript of Whelan's belt tape recorder to the jury
which contained an incriminating statement from a witness.
judge denied the motion. She decided any error in
counsel's decision to read the transcript to the jury was
not prejudicial in light of the overwhelming evidence against
him. She also concluded Deiter's prior bank robbery
conviction qualified as a "violent felony" under
the elements clause of the ACCA. She did, however, grant a
certificate of appealability (COA).
Ineffective Assistance of Counsel
Deiter was arrested, Whelan canvassed the apartment complex
for witnesses. While doing so, she activated the tape
recorder on her belt. The recorder captured the following
exchange with an unidentified resident at the apartment
WITNESS: I was sitting on my bed watching a movie and I
didn't open the door or anything. I looked in the -- I
just heard him yelling and I looked out the peep hole and he
was yelling at her (inaudible) and all this other stuff
and he had a gun at this point. I didn't go
outside or anything. I didn't want to get involved.
OFFICER [WHELAN]: Yeah. All you heard was yelling then?
WITNESS: Yeah, really loud.
OFFICER: Did you hear any specific words of what was being
WITNESS: He said something about, you know, (inaudible) her
up and making sure she was okay or something like that. I
couldn't really understand what he ...