United States District Court, S.D. Alabama, Southern Division
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE
action is before the Court on Petitioner Zerrick
Robinson’s motion to vacate pursuant to 28 U.S.C.
§ 2255, the United States’ response,
Robinson’s status report, the United States’
response and supplemental response to the status report,
Robinson’s supplement to his pending motion, the United
States’ response, and Robinson’s reply (docs.
136, 147, 168, 171, 172, 176, 179, 182). Upon
consideration, and for the reasons set forth herein, the stay
is LIFTED,  Robinson’s motion to vacate his
convictions and sentences for violation of 18 U.S.C. §
924(o) and violation of 18 U.S.C. § 924(c)(1)(A) (Counts
One and Three) is GRANTED. Robinson’s conviction and
sentence for kidnapping in violation of 18 U.S.C. §
1201(a)(1) (Count Three) remains 276 months, as previously
2012, Robinson pled guilty to conspiracy to use and carry or
possess a firearm during or in connection with or in
furtherance of a crime of violence in violation of 18 U.S.C.
§ 924(o) (Count One); kidnapping in violation of 18
U.S.C. § 1201(a)(1) (Count Two); and use of a firearm in
furtherance of a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii) (Count Three) (doc. 105). He was
sentenced to a total term of 360 months in the custody of the
Bureau of Prisons. (Id.). The term consists of 240
months as to Count One and 276 months as to Count Two, to
serve concurrently, and 84 months as to Count Three to serve
consecutively (Id., p. 2).
filed a second successive motion to vacate, set aside or
correct his sentence pursuant to 28 U.S.C. § 2255 (doc.
136). Robinson argued that his § 924(c)(1)(A)(ii) and
§ 924(o) convictions violated due process and should be
vacated because the companion offense of federal kidnapping
did not qualify as a crime of violence as defined in §
924(c)(3)(A) (the elements clause) or (B) (the residual
clause). Robinson relied upon the decision in Johnson v.
United States, 576 U.S. - - -, 135 S.Ct. 2551 (2015),
wherein the Supreme Court held that the residual clause of
the Armed Career Criminal Act (ACCA) was unconstitutionally
vague and thus imposing a sentence under that clause violated
due process. In Welch v. United States, 578 U.S. - -
-, 136 S.Ct. 1257 (2016) the Supreme Court held that
Johnson “announced a new substantive rule that
applied retroactively on collateral review” (doc. 142,
p. 2, 4).
Court construed the motion as brought pursuant to 28 U.S.C.
§ 2255(h)(2) for authorization for consideration of a
second or successive motion pursuant to 28 U.S.C. § 2255
and transferred the motion to the Court of Appeals for the
Eleventh Circuit (doc. 137). On July 22, 2016, the Eleventh
Circuit authorized filing the motion with respect to
Robinson’s claim that he was “denied due process
because he was convicted and sentenced for the violations of
18 U.S.C. § 924(c) and 924(o) based on the residual
clauses in those statutes” (doc. 142, p. 2). The
Eleventh Circuit noted the similar language in the two
statutes and stated that it had not yet decided whether
Johnson applied to § 924(c)(3)(B). The Eleventh
Circuit also stated that it had not yet decided whether the
companion offense of federal kidnapping “categorically
qualifies as a crime of violence for § 924(c)
purposes.” (Id., p. 5).
Eleventh Circuit decided that Robinson had made a
“prima facie showing that his motion contains
a new rule of constitutional law” and granted his
application to “allow the district court to
decide whether Robinson’s conviction under §
924(c) involved a crime of violence that qualifies under
§ 924(c) after Johnson.” (Id.,
p. 8). The Eleventh Circuit also decided that Robinson
“made a prima facie showing with regard to his
challenge to his § 924(o) conviction” because it
is premised on § 924(c) and “would be undermined
if the companion crime of violence is not a valid predicate
under § 924(c) following Johnson.”
Court accepted Robinson’s second § 2255 motion and
the United States filed its response (docs. 136, 147).
However, Robinson filed a motion to stay and hold in abeyance
pending the decision in Sessions v. Dimaya, 584 U.S.
- - -, 138 S.Ct. 1204 (2018). Robinson argued that the
decision could be dispositive because Dimaya
challenged an identically worded residual clause found in 18
U.S.C. § 16(b). Section 16(b) had been incorporated into
the Immigration and Nationality Act to define
“aggravated felony”. Cf. §
924(c)(3)(B) with § 16(b) (docs. 155, 158). The United
States opposed the stay on basis that Robinson’s claims
were procedurally barred (doc. 157).
Court stayed the motion upon finding there were two
unanswered questions: Whether Johnson extended to
§ 924(c)(3)(B)’s residual clause and whether
kidnapping pursuant to 18 U.S.C. § 1201(a)(1) qualified
as a crime of violence under the elements clause in §
924(c)(3)(A) (doc. 159). However, the Court made an initial
evaluation that a conviction under § 1201(a)(1) would
not meet the elements clause. The Court found it appropriate
to hold Robinson’s § 2255 motion in abeyance
pending a decision in Dimaya, directed Robinson to
file a status report, and directed the parties to notify the
Court, should they “become aware of controlling
authority on any of the issues presented” in this
filed a status report advising the Court that Dimaya
had not been decided by the end of the Supreme Court’s
term, but the Eleventh Circuit had issued an opinion in
Ovalles v. United States, wherein it found that the
decision in Johnson did not apply to or invalidate
the residual clause in § 924(c)(3)(B), and that the
residual clause was not unconstitutionally vague.
Ovalles, 861 F.3d 1257, 1268–69 (11th Cir.
2017). Robinson maintained that the decision in
Dimaya could determine the issue (doc. 163). The
Court continued the stay, ordered Robinson to file a status
report within seven days of the decision, and directed the
parties to notify the Court, should they “become aware
of controlling authority on any of the issues
presented” in this order. (doc. 164).
was decided in April 2018. The Supreme Court found that the
residual clause in 18 U.S.C. § 16(b) was
unconstitutionally vague. The Supreme Court explained that
§ 16(b) mandates the application of a categorical
approach, and as with Johnson, found that
application of this approach rendered § 16(b)
impermissibly vague. 584 U.S. - - -, 138 S.Ct. 1204 (2018).
Robinson filed a status report as directed (doc. 166). He
argued that his case should proceed on the merits because his
convictions and sentence were undermined by the Supreme
Court’s decisions in both Johnson and
Dimaya (doc. 166).
of the decisions in Johnson and Dimaya, the
Eleventh Circuit vacated its panel opinion and reheard
Ovalles en banc. 889 F.3d 1259 (11th Cir.
2018). The Court found that since an en banc
decision may alter circuit precedent, the action would be
stayed pending a decision (doc. 167). Again, Robinson was
ordered to file a status report within seven days of the
Ovalles en banc decision, and parties were
directed to notify the Court, should they “become aware
of controlling authority on any of the issues
presented” in this order.
rehearing, the Eleventh Circuit again found that the residual
clause was not unconstitutionally vague. Ovalles v.
United States, 905 F.3d 1231, 1252-53 (11th Cir. 2018)
(en banc) (Ovalles II). In so doing, the
Eleventh Circuit expressly overruled its circuit precedent
regarding which approach to apply to a companion offense. 905
F.3d at 1252. Previously, a categorical approach was applied
to determine whether the companion offense constituted a
crime of violence under § 924(c)(3)(A) (the elements
clause) and (B) (the residual clause). United States v.
McGuire, 706 F.3d 1333 (11th Cir. 2013). The
Eleventh Circuit clarified that a categorical approach
applied to (A), but a conduct-based approach applied to (B).
With a conduct-based approach, the latter was not
unconstitutionally vague in light of Johnson and
Dimaya. Ovalles II, 905 F.3d at 1252.)
filed a Status Report advising the Court of the controlling
authority in Ovalles II. However, he argued
that this Court should disregard the decision in Ovalles
II and follow the Supreme Court’s reasoning in
Johnson and Dimaya (doc. 168). The
United States filed a response and supplemental response in
objection (docs. 171, 172).
Robinson moved the Court to stay consideration of his §
2255 motion pending the United States Supreme Court’s
decision upon the petitions for writ of certiorari filed in
United States v. Davis, Case No. 18-431, and
United States v. Salas, Case No. 18-428 (doc. 173).
Robinson asserted that the question presented in these cases
is “[w]hether the subsection specific definition of
‘crime of violence’ in 18 U.S.C. §
924(c)(3)(B), which applies only in the limited context of a
federal criminal prosecution for possessing, using, or
carrying a firearm in connection with acts comprising such a
crime, is unconstitutionally vague.” (doc. 173, p. 4).
Robinson argued that the outcome would directly impact this
United States informed the Court that the Supreme Court
granted the Solicitor General’s petition for writ of
certiorari in United States v. Davis, --- S.Ct. ---,
No. 18-431, 2019 WL 98544, at *1 (U.S. Jan. 4,
2019) (doc. 174). The United States acknowledged
that the question had been settled in the Eleventh Circuit
but there was a three-to-three circuit split. The United
States agreed with Robinson that this action “should be
stayed and held in abeyance until the Supreme Court issues
its opinion” (Id.).
2019, the Supreme Court decided United States v.
Davis. The Supreme Court “extended its holdings in
Johnson and Dimaya to § 924(c) and
held that § 924(c)(3)(B)’s residual clause, like
the residual clauses in the ACCA and § 16(b), is
unconstitutionally vague.” In re Hammoud, 931
F.3d 1032, 1037 (11th Cir. 2019) (quoting United States
v. Davis, 588 U.S. at - - -, 139 S.Ct. 2319, 2336
(2019)). “[T]he Supreme Court resolved a circuit split,
rejecting the position . . . that § 924(c)(3)(B)’s
residual clause could be saved from unconstitutionality if
read to encompass a conduct-specific, rather than a
categorical, approach.” Id. (citing
Davis, 139 S.Ct. at 2325 & n.2, 2332-33).
“The Davis Court emphasized that there was no
‘material difference’ between the language or
scope of § 924(c)(3)(B) and the residual clauses
invalidated in Johnson and Dimaya, and
therefore concluded that § 924(c)(3)(B)’s residual
clause must suffer the same fate.” Id. (citing
Davis, 139 S.Ct. at 2326, 2336). Therefore, the
Supreme Court abrogated the Eleventh Circuit’s decision
in Ovalles II.
Court ordered Robinson to file “a supplement to his
motion which explains how the decision in United States
v. Davis impacts his pending motion” and set a
time frame for the United States to respond (doc. 175). In
the supplement, Robinson argues that his companion offense of
federal kidnapping is not a crime of violence as defined in
the elements clause, and therefore, since the Supreme Court
has now found the residual clause unconstitutional, his
convictions for the firearms related offense in § 924(o)
and § 924(c)(1)(A)(ii) must be vacated in light of the
decision in Davis (doc. 176). Robinson also argues
that he need not seek circuit authorization to raise a new
claim under Davis claim because his claim has always
been that § 924(c)(3)(B) is unconstitutionally vague,
his claim has never been denied on the merits, and he may
amend his pre-authorized successive § 2255 motion with
additional claims pursuant to the Rules of Civil Procedure
United States raises two arguments in opposition (doc. 179).
The United States argues that Davis announced a new
rule of constitutional law that is retroactive on collateral
review, and therefore, Robinson should apply to the Eleventh
Circuit for authorization to proceed with a new successive
habeas claim based on Davis. The United States also
argues that federal kidnapping still qualifies as a crime of
violence under the elements clause in § 924(c)(3)(A) and
that Robinson has not met his burden to show that his