Robinson v. United States

          ORDER

          KRISTI K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE

         This 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).^[1] Upon consideration, and for the reasons set forth herein, the stay is LIFTED, ^[2] 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 determined.

         I. Background

         In 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).

         Robinson 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).

         This Court construed the motion as brought pursuant to 28 U.S.C. § 2255(h)(2)^[3] 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).

         The 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^[4] 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.” (Id.)

         This 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”.^[5] 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).

         The 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 order.

         Robinson 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).

         Dimaya 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).

         In view of the decisions in Johnson and Dimaya, the Eleventh Circuit vacated its panel opinion and reheard Ovalles en banc.^[6] 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.

         On 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.)

         Robinson 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).

         Then, 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 action.

         The 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)^[7] (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.).

         In June 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.

         The 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 (doc. 182).

         The 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 kidnapping ...