Court refuses to excuse defendant’s default

Where a defendant failed to challenge a count during his plea proceedings or on direct appeal, and there were no grounds for excusing the default, his challenge to that count failed.

Background

In 2011, Andra Green pled guilty to two counts of using a firearm to commit murder in the course of a “crime of violence,” in violation of 18 U.S.C. § 924(j). In 2016, he filed a pro se motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. In the motion, he cited Johnson v. United States, 576 U.S. 591 (2015), which held that the “residual clause” in the Armed Career Criminal Act’s, or ACCA, definition of “violent felony” was unconstitutionally vague.

Although Green filed his § 2255 motion within one year of the Johnson decision, the district court dismissed the motion as untimely. The court concluded that Johnson did not affect the validity of Green’s § 924(j) convictions because they rested on predicate “crime[s] of violence” as defined in 18 U.S.C. § 924(c), not on the ACCA definition of “violent felony.”

While Green’s appeal was pending, the Supreme Court held, in United States v. Davis, 139 S. Ct. 2319 (2019), that the residual clause in § 924(c)’s definition of a “crime of violence” was unconstitutionally vague. This court has since held, in In re Thomas, 988 F.3d 783 (4th Cir. 2021), that the rule recognized in Davis applies retroactively to cases on collateral review.

Count 29

The government agrees that Green’s § 924(j) conviction for Count 29 should be vacated and affirmatively waives any statute-of-limitations or other procedural defenses as to that count. After Davis struck down § 924(c)’s residual clause, neither offense underlying Count 29—conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery—is a valid predicate.

The Supreme Court recently held, in United States v. Taylor, 142 S. Ct. 2015 (2022), that attempted Hobbs Act robbery does not satisfy § 924(c)’s elements clause because “it does not require the government to prove that the defendant used, attempted to use, or even threatened to use force against another person or his property.” This court has reached the same conclusion for conspiracy to commit Hobbs Act robbery.

Accordingly, Green’s conviction for Count 29 can no longer stand. The court therefore reverses the district court’s dismissal order as to Count 29 and remands with instructions to vacate that conviction and sentence.

Merits

The parties’ dispute begins with Count 34, which is predicated on Hobbs Act conspiracy and completed Hobbs Act robbery. Because Hobbs Act conspiracy is not a valid § 924(c) predicate, Green’s conviction must rest on the completed Hobbs Act robbery predicate, which is valid only if it qualifies as a crime of violence under the elements clause. Green contends that Hobbs Act robbery does not satisfy the elements clause, and he further asserts that the elements clause, like the residual clause, is unconstitutionally vague.

Before reaching the merits, though, the court must determine whether Green’s § 2255 motion was untimely or otherwise procedurally barred. The government argues that the district court properly dismissed the motion as untimely. Because Green filed his § 2255 motion within one year of Johnson, and Davis extended Johnson’s reasoning to recognize the right asserted in the motion, however, the motion was timely under § 2255(f)(3).

The government next argues that Green procedurally defaulted his challenge to Count 34 by failing to raise it during his plea proceedings or on direct appeal, and that there are no grounds for excusing the default.  Green does not dispute that he procedurally defaulted his challenge to Count 34, but he does argue that the default should be excused. The court finds that although Green had cause for excusing his procedural default, he was not prejudiced by the default.

This court’s precedent confirms that Hobbs Act robbery qualifies as a crime of violence under the elements clause of § 924(c). Because Green’s conviction on Count 34 was predicated on conduct the law continues to make criminal and Green has not alleged any other form of harm, he cannot show that his procedural default caused him “actual and substantial” prejudice. Nor can he excuse his default on the basis of actual innocence.

Affirmed in part, vacated in part and remanded.

United States v. Green, Case No. 16-7168, May 16, 2023. 4th Cir. (Gregory), from EDVA at Newport News (Smith). Caleb Grant for Appellant. Joseph Attias for Appellee. VLW 023-2-131. 26 pp.