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A DAVIS/TAYLOR ROADMAP

Last week, the 8th Circuit provided a “how-to” instruction manual for people looking to challenge their 18 USC § 924(c) convictions in the wake of United States v. Davis and, more recently, United States v. Taylor. It’s a good read.

In 2005, Christopher Jones pleaded guilty to conspiracy to commit Hobbs Act robbery (18 USC § 1951) and brandishing a firearm during a crime of violence. Originally, Chris was charged with conspiracy to commit a Hobbs Act robbery and two counts of attempting and aiding and abetting the robbery. Although the § 924(c) count was linked to all three counts, under Chris’s plea deal, the government threw out all of the counts except the conspiracy and § 924(c) charges.

After Chris’s conviction became final, the Supreme Court handed down Davis. Chris promptly moved under 28 USC § 2255 to have his § 924(c) conviction thrown out.

His district court denied the § 2255 motion on the grounds of clairvoyance. It seems Chris’s appeal lawyer could not see into the future. On appeal, he didn’t waste any space in the brief arguing that the Hobbs Act conspiracy was not a crime of violence, because the 8th Circuit – like many others – had always held that it was.

Too bad, the district court said. He should have imagined that someday a case like Davis would reverse what the Circuit said was law. Thus,  Chris had “procedurally defaulted” on the issue and could not raise it in a § 2255.

Last week, the 8th Circuit opted for common sense. It held that Chris had established “cause” for failing to raise the issue that ultimately won in Davis on direct review, “because the state of the law at the time of his appeal did not offer a reasonable basis upon which to challenge the guilty plea.” Chris’s Davis claim was reasonably available only after the Supreme Court in Johnson v. United States held that the residual clause of § 924(e) was unconstitutionally vague.

Significantly, the 8th held that none of Chris’s predicate convictions supported a § 924(c) charge. “Conspiracy to commit Hobbs Act robbery does not qualify,” the Circuit held, “because conspiracy does not have as an element ‘the use, attempted use, or threatened use of physical force against the person or property of another,’ and the Supreme Court held in Davis that the residual clause is unconstitutionally vague.” And the count for “aiding and abetting an attempted Hobbs Act robbery does not qualify, because no element of the attempted robbery offense requires that the defendant use, attempt to use, or threaten to use force,” the 8th ruled, citing last month’s Supreme Court Taylor ruling.

Finally, the appeals court said, “Davis qualifies as a substantive rule that applies retroactively. By declaring unconstitutional the residual clause of § 924(c)(3)(B), Davis changed the substantive reach of § 924(c), altering the range of conduct or class of persons that the statute punishes… Accordingly, we must apply Davis in this postconviction proceeding.”

Jones v. United States, Case No. 20-2067, 2022 U.S. App. LEXIS 18412 (8th Cir., July 5, 2022)
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– Thomas L. Root