Stone v. United States

37 F.4th 825

Dwayne STONE, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 20-1778

August Term 2021

United States Court of Appeals, Second Circuit.

Argued: September 13, 2021

Decided: June 21, 2022

Daniel Habib, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Petitioner-Appellant Dwayne Stone

Nicholas Axelrod (Amy Busa, Ellen H. Sise, on the brief), Assistant United States Attorneys, for Mark J. Lesko, Acting United States Attorney for the Eastern District of New York, Brooklyn, NY, for Respondent-Appellee United States of America

Before: Walker, Nardini, and Menashi, Circuit Judges.

John M. Walker, Jr., Circuit Judge:

Following a jury trial in the United States District Court for the Eastern District of New York, Dwayne Stone was convicted of (1) conspiracy to commit second-degree murder in aid of racketeering, (2) second-degree murder in aid of racketeering, and (3) using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Eight years later, Stone filed a petition for habeas corpus under 28 U.S.C. § 2255, contending that his § 924(c) conviction and its accompanying sentence were unlawful. The district court (Glasser, J. ) denied the petition but granted a certificate of appealability. On appeal, Stone argues that his § 924(c) conviction was unlawful because (1) it was possibly predicated on conspiracy to commit murder, an offense that no longer qualifies as a crime of violence, and (2) even if it were predicated on substantive murder, that offense also does not qualify as a crime of violence. We find no merit in these challenges. Accordingly, we AFFIRM the judgment of the district court.

BACKGROUND

In 2007, Stone was indicted for multiple offenses stemming from his affiliation with the "Folk Nation" gang operating in Brooklyn, New York.¹ As relevant here, the indictment charged Stone, under 18 U.S.C. § 1961, with participating in a racketeering enterprise that included the conspiracy to murder and murder of Jamel Washington (Count 1, Racketeering Act 7). Based on the same operative facts, the indictment also charged Stone, under 18 U.S.C. § 1959, with (1) conspiracy to murder in aid of racketeering in violation of N.Y. Penal Law §§ 105.15, 125.25(1) (Count 11), and (2) murder in aid of racketeering in violation of N.Y. Penal Law §§ 125.25(1) and 20.00 (Count 12).² Stone was also charged with using a firearm "during and in relation to crimes of violence, to wit, the crimes charged in Counts [11] and [12]," in violation of 18 U.S.C. § 924(c) (Count 13).³

At trial, the jury heard evidence that Stone and another Folk Nation member approached Washington, a rival gang member, who was in the vicinity of Folk Nation territory. Stone then asked for and received a firearm from his Folk Nation associate, and shot Washington multiple times in the head and back, killing him.

At the close of the trial, the district court instructed the jury that the crimes charged in Counts 11 and 12—conspiracy to commit second-degree murder in aid of racketeering and second-degree murder in aid of racketeering—were both "crimes of violence" as related to the Count 13 firearm charge.⁴ The district court, however, did not give a specific instruction requiring the jury to unanimously agree on which crime—Count 11, Count 12, or both—served as the predicate for the Count 13 conviction. The jury found Stone guilty of Counts 1, 11, 12, and 13 of the indictment, and found all the racketeering acts alleged in the indictment proven, including Act Seven, which charged Stone with conspiracy to murder Washington and the murder of Washington.⁵ On the Count 13 firearm charge, the jury returned only a general verdict of guilty. The district court sentenced Stone to, in relevant part, a prison term of 292 months on Count 1, concurrent terms of mandatory life imprisonment on Counts 11 and 12, and to a term of 300 months’ imprisonment on Count 13, to run consecutively to the other sentences.

In 2013 Stone filed a petition for habeas corpus under 28 U.S.C. § 2255, contending that his two mandatory life sentences were barred by Miller v. Alabama ,⁶ because he was a juvenile when he committed the offenses. The district court granted his petition and in 2014 resentenced Stone to 120 months’ imprisonment, running concurrently, on Counts 1, 11, and 12, and reimposed the sentence of 300 months’ imprisonment on Count 13, to run consecutively to the new sentences.⁷ Stone's projected release date is in June 2040.

In 2016, Stone filed a second § 2255 petition, arguing that his Count 13 conviction under § 924(c) violated the Fifth Amendment's Due Process Clause. The motion was supplemented in 2019 following the Supreme Court's decision in United States v. Davis .⁸ The district court denied the petition in May 2020, but in July issued a certificate of appealability to this court in accordance with 28 U.S.C. § 2253(c)(2). This appeal followed.

DISCUSSION

Under § 2255, a movant may petition the court to "vacate, set aside or correct" a sentence if "the sentence was imposed in violation of the Constitution or laws of the United States, ... [the sentencing] court was without jurisdiction to impose such sentence, ... the sentence was in excess of the maximum authorized by law, or [the sentence] is otherwise subject to collateral attack."⁹ We review de novo a district court's denial of a § 2255 petition.¹⁰

On appeal, Stone argues that the jury was impermissibly allowed to convict him of the Count 13 § 924(c) charge based on a finding that he used a firearm in connection with a murder conspiracy offense because murder conspiracy is not a "crime of violence" within the meaning of § 924(c). He contends, in the alternative, that his conviction and sentence under § 924(c) should be vacated even if it was premised on a substantive murder offense because that offense also does not qualify as a crime of violence. We disagree with both points.

I. Section 924(c) Conviction Predicated on Either Conspiracy to Murder or Substantive Murder or Both

Section 924(c) provides for mandatory minimum sentences for "any person who, during and in relation to any crime of violence ..., uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm."¹¹ A crime of violence is defined in § 924(c)(3) as "an offense that is a felony and—(A) has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."¹² In Davis , the Supreme Court found the "residual" clause of the statute, § 924(c)(3)(B), to be unconstitutionally vague. Accordingly, only felony offenses that have as "an element the use, attempted use, or threatened use of physical force" under § 924(c)(3)(A) are valid predicate crimes of violence to sustain a § 924(c) conviction.

Count 13 charged Stone with "knowingly and intentionally us[ing] and carry[ing] a firearm during and relation to crimes of violence, to wit, the crimes charged in Counts Eleven [conspiracy to murder in aid of racketeering] and Twelve [murder in aid of racketeering]," and "knowingly and intentionally possess[ing] a firearm in furtherance of such crimes of violence" in violation of § 924(c).¹³

We recently held that conspiracy to commit murder in aid of racketeering does not categorically qualify as a crime of violence.¹⁴ As described infra in Section II, however, murder in aid of racketeering remains a categorical crime of violence.¹⁵

Thus, the question presented in this habeas corpus appeal is as follows: when a § 924(c) conviction is predicated on either or both of two crimes, one of which does not qualify as a crime of violence and one of which does, must the conviction be vacated?

The Supreme Court has held that "[a] conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one."¹⁶ However, the Court has also held that "habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice."¹⁷ To determine whether a habeas petitioner was actually prejudiced or the error was harmless, "a reviewing court finding such [instructional] error should ask whether the flaw in the instructions ‘had substantial and injurious effect or influence in determining the jury's verdict.’ "¹⁸ There has been "considerable debate about the exact contours of harmless-error analysis in the collateral context—specifically, ‘how convinced,’ on collateral review, ‘a reviewing court must be before it can declare a federal constitutional error harmless.’ "¹⁹ But one thing is clear: "[w]ithout prejudicial error, there is no basis for collateral relief."²⁰

We must therefore determine whether Stone was prejudiced by the district court's incorrect instruction to the jury that conspiracy to commit murder qualified as a crime of violence. "The usual methodology for determining whether the harmlessness of a constitutional trial error is established with the requisite degree of certainty is to examine the record as a whole to determine if a rational jury, absent the error, would have arrived at the same verdict ...."²¹ Stone, however, asks the court to forego this method, and argues that the court should instead apply the so-called "categorical approach" to determine whether a Yates²² error in the § 924(c) context is harmless because that is "the only approach[ ] that this Court endorses in resolving the question [of] whether a ‘crime of violence’ can support a § 924(c) conviction."²³

Under the categorical approach, courts identify the minimum conduct necessary for conviction under a particular statute, looking only to the statutory elements of the offense and not to the particular underlying facts in a defendant's case,...