                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 16a0134n.06

                                           No. 14-6395
                                                                                         FILED
                          UNITED STATES COURT OF APPEALS                           Mar 10, 2016
                               FOR THE SIXTH CIRCUIT                           DEBORAH S. HUNT, Clerk
STEVE ALLEN BRADEN,                                      )
                                                         )
       Petitioner-Appellant,                             )
                                                         )     ON APPEAL FROM THE
v.                                                       )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE MIDDLE
UNITED STATES OF AMERICA,                                )     DISTRICT OF TENNESSEE
                                                         )
       Respondent-Appellee.                              )
                                                         )


BEFORE: KEITH, McKEAGUE, and KETHLEDGE, Circuit Judges.

       DAMON J. KEITH, Circuit Judge. Following a jury trial in 2009, Petitioner-Appellant

Steve Allen Braden (“Mr. Braden”) was convicted of and sentenced for three drug- and firearms-

related offenses. At sentencing, Mr. Braden was determined to be an Armed Career Criminal

under the Armed Career Criminal Act (“ACCA”). In 2011, Mr. Braden filed a pro se petition to

vacate his convictions pursuant to 28 U.S.C. § 2255. The district court appointed counsel to

represent Mr. Braden as to his petition. The counsel thereafter filed another petition seeking to

raise more claims than those identified in Mr. Braden’s pro se petition. The district court denied

relief. Mr. Braden timely appealed. On appeal, Mr. Braden argues that the district court erred in

dismissing his pro se petition, and he argues, for the first time on appeal, that he is not an Armed

Career Criminal. For the following reasons, we REMAND with instructions for the district

court to consider Mr. Braden’s pro se petition, but we AFFIRM Mr. Braden’s classification as

an Armed Career Criminal under the ACCA.
No. 14-6395, Braden v. United States




                                       I.     BACKGROUND

       In 2009, Mr. Braden was convicted of one count of possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841; one count of possession of a firearm in furtherance of

drug trafficking activity in violation of 18 U.S.C. § 924(c); and one count of being a felon in

possession of firearms in violation of 18 U.S.C. § 922(g). Based on his prior convictions, he was

classified as an Armed Career Criminal pursuant to the ACCA and as a Career Offender under

the United States Sentencing Guidelines (the “Guidelines”). He was sentenced to concurrent

terms of forty years of imprisonment on counts one and two, and a consecutive term of five years

of imprisonment on count three. He appealed his convictions and sentence to this court, and we

affirmed. United States v. Braden, No. 09-5854 (6th Cir. Oct. 28, 2010).

       In 2011, Mr. Braden, acting pro se, filed a petition to vacate his convictions pursuant to

28 U.S.C. § 2255 (“§ 2255”). In his petition, he asserted multiple claims: ineffective assistance

of trial counsel; flawed jury instructions that resulted in a constructive amendment; illegal search

and seizure; insufficient arrest warrant; racial discrimination in the selection of the jury; and

ineffective assistance of appellate counsel. See Braden v. United States, No. 14-6395 (6th Cir.

April 16, 2015). The Government opposed the petition, and then the district court appointed

counsel to represent Mr. Braden and instructed newly appointed counsel to “file an amended

motion to vacate if necessary.”

       Newly appointed counsel filed an amended motion raising additional claims regarding

the § 922(g) gun charge. In that motion, defense counsel purported to supplement the prior pro

se filing, rather than supersede it, stating: “This amended motion does not abrogate any of the




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No. 14-6395, Braden v. United States


claims Mr. Braden raises in his pro se filings. Rather, it supplements claims A through J of Mr.

Braden’s pro se motion by adding the claims set forth below.”

       In denying relief as to the § 2255 petition, the district court stated that it “deem[ed] the

amended petition to supersede the pro se petition and the claims therein.” The district court

further stated that “[u]nless adopted and supported by legal memorandum, the [c]ourt deems the

claims in the pro se and first amended petition to be waived.” The court then denied the claims

raised by appointed counsel in the amended motion as meritless. Mr. Braden appealed.

       While his appeal of the denial of the § 2255 motion was pending, Mr. Braden filed a pro

se motion pursuant to Federal Rule of Criminal Procedure 59(e) alleging more ineffective

assistance of counsel claims. The district court denied this motion as well. In denying the

motion, the district court referred to its prior ruling on the § 2255 petition, noting that it had

“considered the record as a whole and all of the claims raised in both the original and amended

motion, but addressed only those which had some substance. The [c]ourt concluded that [Mr.

Braden] was not entitled to relief.”

       Because a certificate of appealability had not been issued by the district court, we

construed Mr. Braden’s notice of appeal as an application for a certificate of appealability.

Initially, this court granted a limited certificate of appealability solely to address the question of

whether the district court erred in failing to consider Mr. Braden’s pro se petition. However, this

court later expanded the certificate of appealability to encompass the issue of whether Mr.

Braden remains an Armed Career Offender under the ACCA in light of the United States

Supreme Court’s holding in Johnson v. United States, -- U.S. --, 135 S. Ct. 2551 (2015).

Johnson was decided after the district court had already ruled on Mr. Braden’s petition, and after

Mr. Braden had initiated the instant appeal. See 135 S. Ct. 2551.




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No. 14-6395, Braden v. United States


                                         II.     DISCUSSION

   A. Standard of Review

          “In reviewing a district court’s denial of a motion under Section 2255, we apply a clearly

erroneous standard to its factual findings and review its conclusions of law de novo.” Hyatt v.

United States, 207 F.3d 831, 832 (6th Cir. 2000). “Section 2255 provides federal prisoners with

a means to secure a second look at the legality of their conviction or sentence, beyond the direct

appeal of right.” Ajan v. United States, 731 F.3d 629, 631 (6th Cir. 2013). “A federal prisoner

may move the court which imposed the sentence to vacate, set aside, or correct the sentence.”

Id. (citation omitted). The district court “initially considers whether or not the petitioner is

entitled to any § 2255 relief.” Id.

          “This court reviews de novo a district court’s determination regarding whether a prior

conviction constitutes a ‘violent felony’ under the ACCA.” United States v. Kemmerling, 612 F.

App’x 373, 375 (6th Cir. 2015) (citing United States v. Hockenberry, 730 F.3d 645, 663 (6th Cir.

2013)).

   B. Analysis

          1. Original Petition & Amended Petition

          “Generally, amended pleadings supersede original pleadings.” Hayward v. Cleveland

Clinic Found., 759 F.3d 601, 617 (6th Cir. 2014). This rule applies to habeas petitions. See

Calhoun v. Bergh, 769 F.3d 409, 410 (6th Cir. 2014) cert. denied sub nom. Calhoun v. Booker,

135 S. Ct. 1403 (2015). However, we have recognized exceptions to this rule where a party

evinces an intent for the amended pleading to supplement rather than supersede the original

pleading, see Clark v. Johnston, 413 F. App’x 804, 811-12 (6th Cir. 2011), and where a party is

forced to amend a pleading by court order. See Hayward, 759 F.3d at 617-18; but cf. Grubbs v.




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No. 14-6395, Braden v. United States


Smith, 86 F.2d 275, 275 (6th Cir. 1936) (concluding that regardless of the party’s intentions, an

“amended and substituted petition” superseded, as a matter of law, the first petition and the first

amended petition where the district court had directed the party to combine its first petition and

first amended petition into one document). An amended pleading supersedes a former pleading

if the amended pleading “is complete in itself and does not refer to or adopt a former pleading[.]”

Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 131 (6th Cir. 2014) (quoting 61B Am. Jur. 2d

Pleading § 789).1

       Additionally, while “[a] habeas petitioner has neither a constitutional right nor a statutory

right” to represent himself and also be represented by counsel at the same time, “a court may

consider a pro se petition even when a habeas petitioner is represented by counsel.” Miller v.

United States, 561 F. App’x 485, 489 (6th Cir. 2014). It is not uncommon for newly appointed

counsel in habeas cases to supplement the original pro se pleading by adding claims. See

Peguero v. United States, 526 U.S. 23, 25 (1999) (analyzing a case where the district court had

“appointed new counsel, who filed an amended motion adding a claim” to a prisoner’s pro se

2255 motion).

       Here, Mr. Braden initially filed his habeas petition pro se. The district court then

appointed counsel to represent him, noting that the newly appointed counsel could file an

“amended” petition if necessary. The newly appointed counsel then filed an amended petition

asserting additional claims, and noting that the amended petition “does not abrogate any of the
1
  Some courts employ local rules that prohibit a party from incorporating a prior pleading by
reference in an amended pleading, and those rules are given force on appeal. See Hill v. Fort
Loudoun Elec. Co-op., 493 F. App’x 638, 644 (6th Cir. 2012) (holding that the district court did
not abuse its discretion in declining to address a motion “in light of a local rule” in the United
States District Court for the Eastern District of Tennessee which prohibited a party from
incorporating “any prior pleading by reference” in an amended pleading). Neither party in this
case asserts that the United States District Court for the Middle District of Tennessee has such a
local rule, and this court is aware of none.


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No. 14-6395, Braden v. United States


claims Mr. Braden raises in his pro se filings. Rather, it supplements claims A through J of Mr.

Braden’s pro se motion by adding the claims set forth below.” The district court nevertheless

ruled that the amended petition superseded the original petition, citing a decision of the United

States Court of Appeals for the Fifth Circuit, Clark v. Tarrant County, 798 F.2d 736, 740-41 (5th

Cir. 1986).

       Because the amended petition was not “complete in itself” and because it referred to and

adopted the prior petition, the amended petition did not supersede the original petition. See

Shreve, 743 F.3d at 131. Mr. Braden unequivocally evinced an intent to supplement his original

petition. See Clark, 413 F. App’x at 812. Therefore, the district court erred in treating the

original petition as superseded. See id.; see also Shreve, 743 F.3d at 131.

       The government’s sole argument on appeal is that the district court in fact considered the

merits of the claims raised in the original pro se petition. In support, the Government points to

the district court’s order denying Mr. Braden’s subsequent Rule 59(e) motion; the district court

stated that it had “considered the record as a whole and all of the claims raised in both the

original and amended motion, but addressed only those which had some substance. The [c]ourt

concluded that [Mr. Braden] was not entitled to relief.” The government’s reliance on this after-

the-fact statement by the district court is unavailing. This statement from the district court came

only after the district court had the benefit of hindsight to “clarify” its actions. Assuming that it

is proper to consider this after-the-fact clarification, the clarification is belied by the record.

While the district court is not required to provide a lengthy analysis of every claim, a review of

the § 2255 order reveals that the district court only addressed the claims presented in the petition

filed by counsel and did not address any of the claims presented by Mr. Braden in his initial pro




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No. 14-6395, Braden v. United States


se petition. The conclusion that the district court did not review the pro se claims is further

buttressed by its own unequivocal statement that it treated the pro se petition as superseded.

        For the foregoing reasons, we hold that the district court erred in treating Mr. Braden’s

pro se petition as “superseded” by his amended petition.

        2. Armed Career Criminal Status

        Next, we address Mr. Braden’s argument that he no longer qualifies as an Armed Career

Criminal under the ACCA. Specifically, Mr. Braden argues that his prior two convictions for

aggravated assault under Tennessee Code Annotated § 39-13-102 were not proper qualifying

offenses under the ACCA.2 Mr. Braden argues that remand is necessary to determine whether he

was convicted under the residual clause of the ACCA. Recently, the Supreme Court of the

United States held in Johnson v. United States, -- U.S. --, 135 S. Ct. 2551 (2015), that the

residual clause is unconstitutionally vague.3 For the following reasons, Mr. Braden’s argument

is meritless.4



2
  Mr. Braden does not challenge any of his other prior convictions, and it is undisputed that Mr.
Braden has at least one other qualifying ACCA conviction.
3
  We held that Johnson announced a new substantive rule that is retroactive on collateral review.
See In re Watkins, 810 F.3d 375, 382 (6th Cir. 2015). This means that petitioners who were
sentenced pre-Johnson can apply Johnson’s holding to attack the constitutionality of their
sentences in a habeas petition. See id.
4
  As a preliminary matter, Mr. Braden did not assert that Johnson changed his status as an Armed
Career Offender before the district court because the Supreme Court rendered its opinion in
Johnson after the district court issued its ruling. Ordinarily, a failure to raise a constitutional
challenge in the district court would “preclude our consideration of the issue on appeal.” United
States v. Chesney, 86 F.3d 564, 567 (6th Cir. 1996). However, this court can exercise discretion
to “review an issue not raised below” where an applicable Supreme Court decision was rendered
after the district court issued its ruling. See id. at 568. This is especially appropriate where the
question presents “a purely legal issue” that was fully briefed by both parties. Id. Here, we
conclude that Johnson is an applicable Supreme Court decision that was not available to Mr.
Braden below, the question of whether Mr. Braden is an Armed Career Offender is purely legal,
and both parties have fully briefed the matter.


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No. 14-6395, Braden v. United States


       A defendant is considered an Armed Career Offender under the ACCA if he or she

violates 18 U.S.C. § 922(g) and has at least three qualifying felonies under the Act. Kemmerling,

612 F. App’x at 375. “The ACCA increases the sentences of certain federal defendants who

have three prior convictions for a ‘serious drug offense’ or a ‘violent felony.’” United States v.

Elliott, 757 F.3d 492, 293 (6th Cir. 2014). The term “violent felony” is defined as follows:

       Any crime punishable by imprisonment for a term exceeding one year, . . . that (i)
       has as an element the use, attempted use, or threatened use of physical force
       against the person of another; or (ii) is burglary, arson, or extortion, involves the
       use of explosives, or otherwise involves conduct that presents a serious potential
       risk of physical injury to another[.]

18 U.S.C. § 924(e)(2)(B).

       Section (i) is usually referred to as the “force” prong of the statute. Elliott, 757 F.3d at

494.   The first part of section (ii) listing specific offenses is usually referred to as the

“enumerated felonies” prong. Id. And the second part of section (ii) referring to conduct that

“otherwise involves conduct that presents a serious potential risk of physical injury to another” is

referred to as the “residual clause.” Id.

       Mr. Braden’s reliance on Johnson is unavailing because Johnson has no bearing on Mr.

Braden’s conviction or sentence. We must first determine whether Mr. Braden’s convictions

qualify as “violent felon[ies]” under the ACCA. Elliott, 757 F.3d at 494. In making this

determination, courts employ what is known as the “modified categorical approach” when the

criminal statute underlying the prior conviction in question is “divisible.” Id. A statute is

“divisible” when it “includes ‘multiple, alternative elements, and so effectively creates several

different crimes.’”   United States v. Denson, 728 F.3d 603, 612 (6th Cir. 2013) (quoting

Descamps v. United States, 133 S. Ct. 2276, 2285 (2013)). Therefore, in some circumstances,




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No. 14-6395, Braden v. United States


the statute “could be violated in a way that would constitute a [violent felony] and in a way that

would not.” Id. at 608 (citation omitted).

       Under the modified categorical approach, the court may look at a “limited class of

documents . . . to determine which alternative [element] formed the basis of the defendant’s prior

conviction[.]”5 Id. (citation omitted) (first alteration in original). When the defendant pled

guilty to the prior offense, those documents “may include the charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which

the defendant assented.” Id. (citation omitted). These documents are called Shepard documents.

See id. (citing Shepard v. United States, 544 U.S. 13, 16 (2005)). While Mr. Braden did not raise

the ACCA argument below, this court can consult Shepard documents on appeal. See id. at 613

(consulting Shepard documents on appeal).6 If the Shepard documents reveal that the defendant

was convicted of an offense that qualifies as a “violent felony” under the ACCA’s “force

clause,” then Johnson does not affect the defendant’s designation as an Armed Career Criminal.

See United States v. Bernardini, 616 F. App’x 212, 213 (6th Cir. 2015) (noting that “Johnson left

the ACCA’s use-of-force clause undisturbed”).


5
  In contrast, under the categorical approach, the court “focuses on the statutory definition of the
offense, rather than the manner in which an offender may have violated the statute in a particular
circumstance.” Denson, 728 F.3d at 607.
6
  Mr. Braden elected to raise this argument for the first time on appeal, seeking an expansion of
the limited certificate of appealability that this court issued. However, after the government
submitted the Shepard documents into the record, Mr. Braden argued that a remand is proper to
allow the district court to decide the matter in the first instance. While it may have been
unconventional for the government to file the Shepard documents after the appeal had been
taken, the documents did not become relevant until Mr. Braden sought to enlarge his certificate
of appealability to cover an issue that had not been presented before the district court. Mr.
Braden cannot have it both ways. In any event, because this court can consult Shepard
documents on appeal, we reject Mr. Braden’s assertion that the case must be remanded for the
district court to review the documents in the first instance, especially because remand would
prove futile. See Karimijanaki v. Holder, 579 F.3d 710, 721 (6th Cir. 2009) (noting that a
“remand is not required where such a gesture would be futile”).


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No. 14-6395, Braden v. United States


       We have previously held that the Tennessee aggravated assault statue under which Mr.

Braden was convicted (Tenn. Code Ann. 39-13-102) is a divisible statute, and therefore, the

modified categorical approach is applicable. United States v. Cooper, 739 F.3d 873, 880 (6th

Cir. 2014). In this case, Mr. Braden pled guilty to two counts of aggravated assault under the

statute. Both indictments demonstrate that Mr. Braden necessarily pled guilty to a violation of

subsection (a)(1)(B) of Tennessee Code Annotated § 39-13-102, which, at the time of Mr.

Braden’s conviction, criminalized “[i]ntentionally or knowingly commit[ting] an assault” while

“us[ing] or display[ing] a deadly weapon.” Tenn. Code Ann. § 39-13-102(a)(1)(B).

       In the first indictment, the grand jury charged Mr. Braden with “intentionally or

knowingly . . . caus[ing] Tonya Renee Clark to reasonably fear imminent bodily injury, and [Mr.

Braden] did use or display a deadly weapon, to wit: gun,” for conduct he engaged in on April 10,

2002. In the second indictment, the grand jury charged Mr. Braden with “intentionally or

knowingly . . . caus[ing] Tonya Renee Clark to reasonably fear imminent bodily injury, and [Mr.

Braden] did use or display a deadly weapon, to wit: scissors,” for conduct Mr. Braden engaged in

on April 16, 2002. Because the grand jury charged that Mr. Braden “intentionally or knowingly”

assaulted Ms. Clark with a deadly weapon, Mr. Braden must have been charged with and pleaded

guilty to violating § 39-13-102(a)(1)(B). Cf. Cooper, 739 F.3d at 881 (holding that the defendant

“must have been charged with violating and pleading guilty to” one of the provisions under § 39-

13-102(a) because the grand jury charged that he had displayed a deadly weapon). Mr. Braden’s

aggravated assault convictions are considered violent felonies under the ACCA’s “force” clause.

See United States v. Priddy, 808 F.3d 676, 685-86 (6th Cir. 2015) (noting that an offense

qualifies under the “force” clause where it “has an element” of “the use, attempted use, or

threatened use of physical force against the person of another”).



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No. 14-6395, Braden v. United States


       Because Mr. Braden was not convicted under the residual clause of the ACCA, Johnson

does not affect his status as an Armed Career Criminal. See Kemmerling, 612 F. App’x at 375

(noting that Johnson only called the “residual clause” into question and not any other provision

of the ACCA); see also Bernardini, 616 F. App’x at 213.

                                       III.   CONCLUSION

       For the foregoing reasons, we VACATE the dismissal of the claims presented in the

initial pro se § 2255 petition and REMAND the case to the district court with instructions to

consider the arguments presented in Mr. Braden’s initial pro se § 2255 petition, but we AFFIRM

Mr. Braden’s classification as an Armed Career Criminal under the ACCA.7




7
 Notably, Mr. Braden has two other appeals pending in this court: 15-5294 and 15-5465. Those
two appeals have been consolidated into a separate case. While those appeals also raise
challenges to Mr. Braden’s sentence, the issues presented in those appeals are different, Mr.
Braden is represented by separate counsel in those appeals, and nothing in the instant opinion
affects the outcome of those appeals.


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