Finch v. United States

• Decision Date: 01 July 2022
• Docket Number: 3:20-cv-00653
• Parties: DEUNTA FINCH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

DEUNTA FINCH, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 3:20-cv-00653

United States District Court, M.D. Tennessee, Nashville Division

July 1, 2022

MEMORANDUM OPINION AND ORDER

Honorable Marvin E. Aspen, United States District Judge

Petitioner Deunta Finch pled guilty to four criminal counts, including one count of violating 18 U.S.C. § 924(c)(1) by knowingly using, carrying, brandishing, and discharging a firearm during and in relation to a crime of violence. We sentenced Finch to a total of 290 months' imprisonment for all counts, and the Sixth Circuit affirmed. United States v. Finch, 764 Fed.Appx. 533, 534-35 (6th Cir. 2019). Before us is Finch's motion under 28 U.S.C. § 2255 to vacate his § 924(c)(1) conviction based on the Supreme Court's decision in United States v Davis, 588 U.S. __, 139 S.Ct. 2319 (2019). (Motion to Vacate, Set Aside, or Correct Sentence in Accordance with 28 U.S.C. § 2255 (“Mot.”) (Civ. Dkt. No 1).)^[1] For the following reasons, we grant Finch's motion.

BACKGROUND

Finch-a gang member, crack cocaine dealer, and previously convicted felon-was charged with crimes arising out of two separate shooting incidents. Finch, 764 Fed.Appx. at 534.

The first shooting involved Finch and a friend, “as passengers in a moving vehicle, exchanging fire with the driver of another vehicle over some driving-related disagreement.” Id. The second shooting involved Finch and a rival drug dealer named Mason. Id. at 535. Finch and Mason were sitting in the same car when Finch “brandished a firearm and attempted to rob Mason of cocaine, crack cocaine, and drug proceeds.” Id. “The two tussled over the weapon,” which discharged. Id. “[T]he bullet grazed Mason's thigh, and both fell out of the car.” Id. Finch and Mason “continued to wrestle for the gun, and [Finch] ultimately shot Mason in the left knee and pistol-whipped him in the head before taking some of Mason's cocaine and his car.” Id.

In February 2016, a federal grand jury indicted Finch on four counts: being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (Count I);^[2] attempted Hobbs Act robbery and extortion, in violation of 18 U.S.C. § 1951 (Count II); knowingly using, carrying brandishing, and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Count III); and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924 (Count IV). (Crim. Dkt. No. 1.) Counts I and IV related to the first shooting; Counts II and III related to the second shooting. See Finch, 764 Fed.Appx. at 534-35. The “crime of violence” referred to by Count III was the attempted Hobbs act robbery and extortion charged in Count II. (Crim. Dkt. No. 1 at 2.)

“Before trial, [Finch] and the government came to a Rule 11(c)(1)(C) plea agreement, whereby [Finch] would plead guilty to all four charges in exchange for a total sentence of 180 months' imprisonment.” Finch, 764 Fed.Appx. at 535. But the government later sought to withdraw from the plea agreement, alleging that Finch violently attacked his cellmate and stole the cellmate's property while awaiting sentencing. Id. While the government's request was pending, Finch reentered “a plea of guilty to the open indictment, with no agreement relating to his possible sentence.” Id. We vacated the previous plea agreement and accepted Finch's open guilty plea. (Crim. Dkt. No. 49.) In April 2018, we held a sentencing hearing and sentenced Finch to a total of 290 months' imprisonment. (Crim. Dkt. No. 78.)

Finch appealed his sentence. Finch, 764 Fed.Appx. at 534. In doing so, however, he did not argue that his attempted Hobbs Act robbery and extortion conviction was not a crime of violence under 18 U.S.C. § 924(c). See id. The Sixth Circuit found no reversible error in Finch's sentence and affirmed. Id.

A few months later, the Supreme Court issued its decision in Davis, in which it held that 18 U.S.C. § 924(c)(3)(B) (what is known as the statute's “residual clause”) is unconstitutionally vague. 139 S.Ct. at 2323-24, 2336. Relying upon Davis, Finch now moves to vacate his § 924(c)(1) conviction under 28 U.S.C. § 2255, which allows a federal prisoner to “collaterally attack the validity of his conviction or sentence.” Harrington v. Ormond, 900 F.3d 246, 249 (6th Cir. 2018).

ANALYSIS

Under 18 U.S.C. § 924(c), the use or possession of a firearm in connection with a “crime of violence” constitutes a separate offense. 18 U.S.C. § 924(c)(1); United States v. Richardson, 948 F.3d 733, 741 (6th Cir. 2020). The statute defines crime of violence in two ways. 18 U.S.C. § 924(c)(3). “The first is by way of the elements clause,” which requires a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Id. § 924(c)(3)(A); United States v. Clancy, 979 F.3d 1135, 1140 (6th Cir. 2020). “The second is by way of the ‘residual' clause,” which requires a felony “that by its nature involves a substantial risk that physical force . . . may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B); Clancy, 979 F.3d at 1140.

In Davis, the Supreme Court held that § 924(c)'s residual clause is unconstitutionally vague. 139 S.Ct. at 2323-24, 2336. Thus, after Davis, an offense constitutes a crime of violence under § 924(c) only if it meets the definition set forth by the elements clause. Clancy, 979 F.3d at 1140 (“Because the ‘residual' clause is unconstitutionally vague, all that matters [after Davis] is whether the elements clause applies.” (internal citation omitted)); see also Richardson, 948 F.3d at 741 (explaining that Davis does not “gut” the entirety of § 924(c) and leaves intact the “definition of crime of violence supplied by the statute's ‘elements clause'”). Davis applies retroactively. Portis v. United States, 33 F.4th 331, 334 (6th Cir. 2022).

Finch argues that we should set aside his conviction under § 924(c)(1) because it depended on § 924(c)'s residual clause, which Davis nullified. (Mot. at 1-3.) This is so, Finch says, because neither attempted Hobbs Act robbery nor attempted Hobbs Act extortion satisfies the definition of crime of violence set forth in § 924(c)'s elements clause. (Id. at 5-6; Petitioner's Supplement to § 2255 Motion (“Supplement”) (Civ. Dkt. No. 17) at 1.)

The government counters that Finch procedurally defaulted his claim by not raising it on direct appeal. (Response in Opposition to Motion to Vacate Sentence (Civ. Dkt. No. 8) at 3-7.) The government further argues that even if Finch has not procedurally defaulted his claim, we should uphold his § 924(c)(1) conviction because attempted Hobbs Act robbery qualifies as a crime of violence under § 924(c)'s elements clause. (Id. at 7-10.) And because attempted Hobbs Act robbery still qualifies as a crime of violence after Davis, the government continues, we need not consider whether attempted Hobbs Act extortion constitutes a crime of violence after Davis as well. (See Response in Opposition to Supplemental Motion to Vacate Sentence (Civ. Dkt. No. 19) at 2 n.1.)

I. Procedural Default

We begin by addressing the government's procedural default argument. “A defendant's failure to raise a claim on direct appeal typically bars the defendant from raising it during collateral review.” Obi v. United States, 797 Fed.Appx. 926, 929 (6th Cir. 2019). Yet this failure (known as a procedural default) “is not an absolute bar.” Id. A defendant can raise a claim for the first time in a § 2255 petition “if he can show either (1) cause for the default and prejudice from the claim being barred, or (2) actual innocence.” Id.

Finch concedes that he procedurally defaulted his Davis claim. (Petitioner's Reply to Response to § 2255 Motion (“Reply”) (Civ. Dkt. No. 9) at 1.) He also concedes that he cannot prove “cause.” (Id.) But Finch contends that if he prevails on the merits by demonstrating that his § 924(c)(1) conviction is invalid after Davis, he will show actual innocence that overcomes his procedural default. (Id. at 1-2, 5-6.)

We agree. “‘[A]ctual innocence' means factual innocence,” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611 (1998), and one way to show factual innocence is by identifying “an intervening change in the law that establishes” innocence, Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012) (quotation marks omitted). If Finch convinces us that his attempted Hobbs Act conviction does not constitute a crime of violence under § 924(c)'s elements clause, Davis's retroactive holding that § 924(c)'s residual clause is unconstitutionally vague establishes his innocence on the § 924(c)(1) charge. See, e.g., United States v. Bowen, 936 F.3d 1091, 1095, 1108 (10th Cir. 2019) (holding post-Davis that the defendant was innocent of violating § 924(c)(1) because the predicate convictions were not crimes of violence under the elements clause); Starks v. United States, 516 F.Supp.3d 762, 767-68, 776-77 (M.D. Tenn. 2021) (same, but for a violation of § 924(j)); see also Richardson, 948 F.3d at 741 (“With the residual clause now gone, we can uphold Richardson's conviction and sentence under § 924(c) only if the statute underlying his conviction . . . satisfies § 924(c)'s elements clause.”).

Therefore, whether Finch is actually innocent of the § 924(c)(1) charge, and his procedural default thereby excused, depends upon the merits of his § 2255 motion, which we turn to next.

II. The Merits

We first consider Finch's contention that because “the government declined to specify whether [his] plea was to an attempted robbery or rather to an attempted extortion, it procured a plea based on either attempted robbery or attempted extortion.” (Suppleme...