United States v. Green

67 F.4th 657

UNITED STATES of America, Plaintiff - Appellee, v. Andra G. GREEN, a/k/a Giz, a/k/a Gizzle, a/k/a A. Gizzle, a/k/a Andra Gabrael Green,a/k/a Andra Gabriel Green, Jr., a/k/a A.J., Defendant - Appellant.

No. 16-7168

United States Court of Appeals, Fourth Circuit

Argued: January 24, 2023

Decided: May 16, 2023

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Rebecca Beach Smith, Senior District Judge. (4:09-cr-00081-RBS-FBS-7; 4:16-cv-00022-RBS)

ARGUED: Caleb Grant, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens, Georgia, for Appellant. Joseph Attias, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Thomas V. Burch, Appellate Litigation Clinic, UNIVERSITY OF GEORGIA SCHOOL OF LAW, Athens, Georgia, for Appellant. Jessica D. Aber, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Before GREGORY, Chief Judge, WYNN, and THACKER, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge Gregory wrote the opinion, in which Judge Wynn and Judge Thacker joined.

GREGORY, Chief Judge:

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 the Supreme Court's decision in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that the "residual clause" in the Armed Career Criminal Act's ("ACCA") definition of "violent felony," 18 U.S.C. § 924(e)(2)(B)(ii), 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 that the residual clause in § 924(c)'s definition of a "crime of violence" was unconstitutionally vague, recognizing the specific right Green asserted in his § 2255 motion. See United States v. Davis, — U.S. —, 139 S. Ct. 2319, 2323-24, 204 L.Ed.2d 757 (2019). Because Green filed his motion within one year of Johnson and Davis extended the Supreme Court's reasoning in Johnson, we hold that it was timely. Nevertheless, we affirm the dismissal of Green's motion as to one of his § 924(j) convictions because Green procedurally defaulted his claim challenging the conviction and cannot establish grounds for excusing the default. We vacate Green's conviction and sentence on the other § 924(j) count because the conviction is unsupported by a valid predicate offense, and the Government concedes that he is entitled to relief.

I.

A.

In 2011, a federal grand jury in the Eastern District of Virginia indicted Green and several other individuals on thirty-six counts related to gang activity in Hampton Roads, Virginia. The most serious charges stemmed from the separate killings of John Henry Green and Demareo Dontae Hardy, both of which occurred during drug robberies. For his involvement in the killings, Green was charged with two counts of using a firearm to commit murder during a crime of violence (18 U.S.C. § 924(j)), as well as attempted and completed Hobbs Act robbery (18 U.S.C. § 1951(a)-(b)), conspiracy to commit Hobbs Act robbery, and related firearms charges.

Section 924(j) adopts § 924(c)'s definition of a "crime of violence." That section defines a crime of violence as an offense that either "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another" (the "elements clause" or "force clause"); 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" (the "residual clause"). 18 U.S.C. § 924(c)(3)(A)-(B).

In October 2011, Green pled guilty to the two § 924(j) counts.¹ The first, Count 29, related to the murder of John Henry Green and identified two predicate crimes of violence: conspiracy to commit Hobbs Act robbery and attempted Hobbs Act robbery. The second, Count 34, related to the murder of Hardy and also identified two predicates: conspiracy to commit Hobbs Act robbery and completed Hobbs Act robbery. Neither the indictment nor the plea agreement specified whether these predicate offenses qualified as crimes of violence under the elements clause or the residual clause of § 924(c). As part of the plea agreement, Green waived his right to appeal his convictions or sentence.

The district court accepted the plea and, in January 2012, sentenced Green to concurrent life sentences for Counts 29 and 34. On the Government's motion, the court dismissed the remaining counts of the indictment. Green did not file a direct appeal.

B.

On April 11, 2016, Green filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The motion, which he submitted on a § 2255 form for incarcerated persons, was sparse on substance. Green sought "[r]elief of my sentence [e]nhancements" and cited the Supreme Court's 2015 decision in Johnson. J.A. 101. The motion did not further discuss how Johnson affected his convictions or sentence. In the section of the form titled "timeliness of motion," Green wrote: "There are no statutes of limitations on any murder. At any giv[en] time there can be sufficient or insufficient material brought to further the case which could also leave room for error." J.A. 109. Green asked the court to grant the following relief: "That my LIFE sentence be reduced to no less than 240 months and no more than 360 months." J.A. 110.

The following day, the district court issued a show cause order directing Green to explain why his motion, which he filed more than four years after his conviction became final, was not untimely under the Antiterrorism and Effective Death Penalty Act's ("AEDPA") one-year statute of limitations for § 2255 motions. See 28 U.S.C. § 2255(f). The court noted that Green's argument about murder offenses having no statute of limitations was irrelevant, as the limitations period for § 2255 motions does not change based on the crime of conviction. The court gave Green thirty days to file a response and warned him it would dismiss the motion if he failed to do so.

Green responded to the show-cause order one week later. He argued that his motion should not be time-barred because the court had not provided "the proper documents to research [his] motion" in a timely manner, the Bureau of Prisons had lost certain relevant documents, and he lacked access to legal assistance while housed in solitary confinement. J.A. 114. The district court found Green's response inadequate because it lacked a certificate of service to the Government and stated it would strike the response from the record unless Green corrected the deficiency within thirty days. Green did not submit a corrected response within the thirty-day window.

On June 7, 2016, the district court dismissed Green's § 2255 motion without requesting a response from the Government. It held the motion was untimely under § 2255(f) because Green did not file it within one year after his conviction became final. The court considered whether the motion was timely under § 2255(f)(3), which permits a petitioner to file a § 2255 motion within one year of "the date on which the right asserted [in the motion] was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). The court acknowledged that Green's motion cited Johnson, which was decided less than a year before he filed the motion, but stated that Green "was not sentenced under the ACCA" and "does not explain how Johnson could apply to his conviction or sentence." J.A. 117-18. It therefore concluded that the motion was not timely under § 2255(f)(3). J.A. 118. The district court declined to grant a certificate of appealability.

After the appeal deadline expired, Green filed a request for an extension to respond to the district court's dismissal order. He attached an "affidavit" in which he argued that the residual clause in § 924(c) is "unconstitutionally va[gu]e and do[es] not have a force clause." J.A. 125. Green asserted that "after the Supreme Court decision in Johnson, 135 S. Ct. at 2552 (2015), this residual clause [ ] is no longer valid," and that his "2255(f)(3) is timely" because it was filed within a year of Johnson. Id. The district court construed Green's request as a motion for an extension of time to file an appeal and granted an extension. Green filed a notice of appeal within the extension period.

C.

We initially placed Green's appeal in abeyance pending decisions from the Supreme Court and this Court that might bear on the validity of Green's § 924(j) convictions. In 2019, the Supreme Court decided Davis, which held that the residual clause in § 924(c) is unconstitutionally vague. 139 S. Ct. at 2323-24. We have since held that the rule recognized in Davis applies retroactively to cases on collateral review. In re Thomas, 988 F.3d 783, 789 (4th Cir. 2021). After Davis, an offense qualifies as a crime of violence only if it meets the definition in § 924(c)'s elements clause. To determine whether an offense satisfies that clause, courts must apply the categorical approach, "consider[ing] only the elements of the offense in question without regard to an individual's conduct in committing the crime." United States v. Melaku, 41 F.4th 386, 391 (4th Cir. 2022).

We ultimately granted a certificate of appealability on two issues: (1) "whether a ...