Opinion
23-5028
03-27-2023
In re: CLARENCE LEE DAVIS, Movant.
(D.C. Nos. 4:20-CV-00235-CVE-JFJ &4:04-CR-00085-CVE-2) (N.D. Okla.)
Before HARTZ, PHILLIPS, and MORITZ, Circuit Judges.
ORDER
Clarence Lee Davis, a federal prisoner proceeding pro se, moves for authorization to file a successive motion under 28 U.S.C. § 2255. We deny the motion for the reasons explained below.
I. LEGAL STANDARD
This court may not grant authorization to file a second or successive § 2255 motion unless the movant asserts
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.28 U.S.C. § 2255(h). As will become clear below, the outcome here turns on whether Davis satisfies the second of these two options.
II. BACKGROUND &PROCEDURAL HISTORY
In 2004, a federal jury in the Northern District of Oklahoma convicted Davis on three charges that are relevant to the arguments addressed below:
• conspiracy to commit an offense against the federal government- specifically, bank robbery;
• attempted armed bank robbery; and
• use of a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c))-specifically, the attempted bank robbery.
The district court sentenced him to 60 months on the conspiracy offense concurrent with 276 months on the attempted bank robbery offense, plus a consecutive 84 months on the § 924(c) charge. Thus, Davis's effective total sentence was 360 months. Davis then pursued an unsuccessful appeal and § 2255 motion, raising issues not relevant here.
As is well known, the Supreme Court held in 2015 that the so-called "residual clause" of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. See Johnson v. United States, 576 U.S. 591, 597 (2015). Then, in Welch v. United States, 578 U.S. 120, 130 (2016), the Supreme Court made Johnson retroactive to cases on collateral review.
Davis was not sentenced under the ACCA, but he was sentenced under § 924(c), which contains a similarly worded residual clause. See United States v. Bowen, 936 F.3d 1091, 1096 (10th Cir. 2019). Thus, Davis filed a motion for authorization to bring a new § 2255 petition arguing:
• the crime of violence underlying his § 924(c) conviction was conspiracy to commit an offense against the United States (this was a misunderstanding of his § 924(c) charge, as later proceedings would demonstrate); and
• conspiracy to commit an offense against the United States could only qualify as a § 924(c) predicate offense under the residual clause, not the elements clause; but
• the residual clause in § 924(c) is unconstitutional.
Davis accordingly requested that the court vacate his 84-month sentence on the § 924(c) charge. This court abated Davis's motion for authorization, along with many similar motions, as the effect of Johnson and Welch played out.
In United States v. Davis, 139 S.Ct. 2319, 2323, 2336 (2019), the Supreme Court held that § 924(c)'s residual clause was unconstitutional. (To avoid confusion with the movant here, Clarence Davis, we will refer to the Supreme Court's decision as "Maurice Davis" for the remainder of this order.) This court then held that Maurice Davis announced a new rule of constitutional law that the Supreme Court made retroactive by virtue of Welch. In re Mullins, 942 F.3d 975, 977-79 (10th Cir. 2019). On that basis, the court granted Davis's motion for authorization to bring his proposed § 2255 claim. In effect, the court construed Davis's proposed § 2255 claim as if based on Maurice Davis rather than Johnson.
On the merits, the district court pointed out that Davis's § 924(c) charge was based on attempted bank robbery, not conspiracy to commit an offense against the United States. The district court then held, based on unpublished decisions from this court, that attempted bank robbery satisfies § 924(c)'s elements clause, so the court did not need to decide anything about the residual clause. Thus, it denied relief.
Davis appealed, and this court granted a certificate of appealability. But it ultimately affirmed for essentially the same reasons stated by the district court:
The Second Superseding Indictment states that the crime of violence was in fact attempted armed bank robbery (count two). And in several unpublished opinions, we have concluded that attempted armed bank robbery and armed bank robbery qualify as crimes of violence under § 924(c)'s elements clause. Mr. Davis supplies no reason to question these opinions.United States v. Davis, No. 20-5119, 2021 WL 4129231, at *1 (10th Cir. Sept. 10, 2021) (citations omitted).
Last year, in United States v. Taylor, 142 S.Ct. 2015, 2020-21 (2022), the Supreme Court held that attempted Hobbs Act robbery does not satisfy § 924(c)'s elements clause, so it cannot be the predicate offense for a § 924(c) conviction. Finally, on March 13, 2023, Davis filed the motion for authorization now at issue. He claims that Maurice Davis and Taylor, together, represent a new rule of law that permits another § 2255 motion. He further claims, in light of Taylor, that attempted armed bank robbery cannot be the predicate offense for a § 924(c) conviction.
III. ANALYSIS
In Davis's view, Taylor shows we incorrectly interpreted the relationship between attempted armed bank robbery and § 924(c), so our previous resolution of his Maurice Davis-based claim was incorrect. We express no opinion on whether Taylor undermines any of our decisions regarding attempted armed bank robbery because it does not matter here. Section 2255 does not authorize a second or successive motion based on intervening authority (like Taylor) unless that authority is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2) (emphasis added).
Taylor decided a question of statutory interpretation: Does attempted Hobbs Act robbery "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person or property of another," 18 U.S.C. § 924(c)(3)(A)? See 142 S.Ct. at 2018. Thus, Taylor did not announce any rule of constitutional law. So, we may not authorize a successive § 2255 claim based on Taylor.
Maurice Davis announced a new, retroactive rule of constitutional law, as explained above. But that rule was not "previously unavailable." § 2255(h)(2). Indeed, Maurice Davis was the basis of Davis's earlier § 2255 motion, so it cannot be deemed "previously unavailable" at this stage.
IV. CONCLUSION
We deny Davis's motion. This denial of authorization "shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 28 U.S.C. § 2244(b)(3)(E).