In re Thomas

988 F.3d 783

IN RE: Dearnta Lavon THOMAS, a/k/a Bloody Razor, Movant.

No. 19-292

United States Court of Appeals, Fourth Circuit.

Submitted: December 11, 2020

Decided: February 23, 2021

Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Movant. G. Zachary Terwilliger, United States Attorney, Daniel T. Young, Assistant United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Respondent.

Before WILKINSON, AGEE, and RICHARDSON, Circuit Judges.

Motion granted by published opinion. Judge Richardson wrote the opinion, in which Judges Wilkinson and Agee concurred. Judge Wilkinson wrote a concurring opinion.

RICHARDSON, Circuit Judge:

Dearnta Thomas seeks authorization to file a successive § 2255 application. His claim rests on the rule announced in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019) (finding that the residual clause of 18 U.S.C. § 924(c) ’s crime-of-violence definition was unconstitutionally vague). We face two questions in determining whether to grant his motion: (1) whether Davis applies retroactively to cases on collateral review and (2) whether Thomas states a plausible crime-of-violence claim that warrants further exploration by the district court.

Today we join our sister circuits in holding that Davis applies retroactively to cases on collateral review. We also find that Thomas has stated a plausible claim for relief that warrants review by a district court. We therefore grant his motion.

I. Background

In 2011, Thomas pleaded guilty to a substantive RICO offense.

18 U.S.C. § 1962(c).¹ He also pleaded guilty under § 924(c) to possessing a firearm in furtherance of a crime of violence. The predicate "crime of violence" for the § 924(c) offense was aiding and abetting the commission of VICAR assault with a dangerous weapon. 18 U.S.C. §§ 1959(a)(3), 2. The VICAR offense in turn was predicated on two Virginia state-law offenses: Va. Code Ann. §§ 18.2-53.1 ("Use or display of firearm in committing felony") and 18.2-282 ("Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance"). Thomas was sentenced to 180 months in prison. He did not appeal his conviction or sentence.

After Thomas's conviction, the Supreme Court decided a line of cases that eventually led to finding § 924(c) ’s residual clause, part of the definition of "crime of violence," unconstitutional. First, in 2015, the Supreme Court invalidated the residual clause of the Armed Career Criminal Act's definition of "violent felony" for being unconstitutionally vague. See Johnson v. United States , 576 U.S. 591, 606, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Thomas did not file a § 2255 application at that time.

Then in 2018, the Supreme Court relied on Johnson to invalidate the residual clause in 18 U.S.C. § 16, the generally applicable "crime of violence" definition. See Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1223, 200 L.Ed.2d 549 (2018). Thomas filed his first § 2255 motion within a year of Dimaya ’s issuance, arguing that his § 924(c) conviction could not stand based on that decision. The district court denied his motion as time-barred under § 2255(f)(3), finding that the rule Thomas sought to invoke was recognized in Johnson , not Dimaya , and that Thomas had not filed his motion within one year of Johnson ’s issuance.

Circuit courts split over whether the principles of Johnson and Dimaya rendered § 924(c) ’s crime-of-violence residual clause unconstitutional. So the Supreme Court granted certiorari. United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). But before the Supreme Court could resolve the circuit split, Thomas sought authorization to file a second § 2255 application, which we denied.

Two months after we denied Thomas authorization, the Supreme Court decided Davis , which found § 924(c) ’s residual clause unconstitutionally vague. 139 S. Ct. at 2336. Several weeks later, Thomas filed the motion for authorization to file a second or successive § 2255 application at issue here. We have jurisdiction to rule on his motion pursuant to 28 U.S.C. §§ 2244(b)(3)(C) and 2255(h).

II. Discussion

To file a second or successive § 2255 application in federal district court, an applicant must first obtain authorization from a court of appeals. 28 U.S.C. § 2255(h). Authorization requires the applicant to either (1) provide "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 [applicant] guilty of the underlying offense" or (2) show that his claim relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Id.

Thomas's application invokes the latter condition, citing Davis . He argues that his § 924(c) conviction was not predicated on a "crime of violence" because the two state-law offenses underlying his VICAR conviction cannot satisfy § 924(c) ’s force clause after Davis invalidated § 924(c) ’s residual clause.

But at this stage, Thomas need not definitively show that he will prevail on his claim. Instead, he must only "make[ ] a prima facie showing that the application satisfies the requirements." § 2244(b)(3)(C) (emphasis added).² To do so, he must first "show that his claim relies on a new and retroactive rule of constitutional law." In re Irby , 858 F.3d 231, 233 (4th Cir. 2017). And then he must show that his claim is "plausible," thus making "a sufficient showing of possible merit to warrant a fuller exploration by the district court." Id. (quoting In re Hubbard , 825 F.3d 225, 229–30 (4th Cir. 2016) ). We address each requirement in turn, ultimately granting Thomas authorization to file his habeas application in the district court.³

A. Retroactivity

We first consider whether Davis (1) announced a new rule of constitutional law (2) made retroactive to cases on collateral review (3) by the Supreme Court (4) that was previously unavailable. 28 U.S.C. § 2255(h)(2) ; see Tyler v. Cain , 533 U.S. 656, 662, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). The government does not address this question in its brief, apparently agreeing with our sister circuits that Davis satisfies these requirements.⁴ That concession is correct.

First, Davis ’s constitutional rule is new. A "case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane , 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality). A rule is "dictated by precedent" if it "was apparent to all reasonable jurists." Lambrix v. Singletary , 520 U.S. 518, 527–28, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997). But even if a decision does not itself announce a new rule, extending an "old rule" "in a novel setting" creates a new rule if the "old rule" is applied "in a manner that was not dictated by precedent." Stringer v. Black , 503 U.S. 222, 228, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992).

While Davis looked to Johnson and Dimaya in invalidating § 924(c) ’s residual clause as unconstitutionally vague, that decision was not dictated by that precedent. 139 S. Ct. at 2326–27. The Davis Court extended the holdings of Johnson and Dimaya to invalidate a different—even if analogous—provision in § 924(c). United States v. Reece , 938 F.3d 630, 634 (5th Cir. 2019). In doing so, Davis resolved a substantial circuit split over the constitutionality of § 924(c) ’s residual clause after Dimaya . See Davis , 139 S. Ct. at 2325 n.2 (collecting cases); see also Butler v. McKellar , 494 U.S. 407, 415, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990) ("[T]he differing positions taken by the judges of the Court of Appeals" is evidence that a case's outcome "was susceptible to debate among reasonable minds."). As the arguments by several circuit courts and the dissent in Davis reflect, the rule ultimately adopted was open to reasonable debate and not "dictated by" Johnson and Dimaya . Teague , 489 U.S. at 301, 109 S.Ct. 1060.

But the Supreme Court mandates that we look to the "precedent existing at the time [Thomas]’s conviction became final" in 2011. Teague , 489 U.S. at 301, 109 S.Ct. 1060 ; see also United States v. Morris , 429 F.3d 65, 70 (4th Cir. 2005) ; O'Dell v. Netherland , 95 F.3d 1214, 1221 (4th Cir. 1996). And in 2011, neither Johnson nor Dimaya had been decided. So if Davis was not dictated by precedent even after Johnson and Dimaya , it certainly was not dictated by precedent in 2011. Cf. Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 1264, 194 L.Ed.2d 387 (2016) ("It is undisputed that Johnson announced a new rule."). So the Davis rule is a new one for purposes of this motion.

Second, the new rule in Davis applies retroactively to cases on collateral review. " Teague and its progeny recognize two categories of decisions that fall outside th[e] general bar on retroactivity": (1) new substantive rules and (2) new "watershed rules of criminal procedure." Id. (quoting Schriro v. Summerlin , 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) ). A "substantive" rule "alters the range of conduct or the class of persons that the law punishes." Schriro , 542 U.S. at 353, 124 S.Ct. 2519. This category includes rules that "narrow the scope of a criminal statute by interpreting its terms as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Id. at 352, 124 S.Ct. 2519 (internal citation omitted). By contrast, a procedural rule "regulate[s] only the manner of determining the defendant's culpability." Id. at 353, 124 S.Ct. 2519 (emphasis omitted).

Davis ’s rule is substantive. Befor...