In re Hubbard

• Decision Date: 08 June 2016
• Docket Number: No. 15-276,15-276
• Citation: 825 F.3d 225
• Parties: In re: Creadell Hubbard, Movant.
• Court: U.S. Court of Appeals — Fourth Circuit

825 F.3d 225

In re: Creadell Hubbard, Movant.

No. 15-276

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2016

Decided: June 8, 2016

ARGUED: Paul K. Sun, Jr., Ellis & Winters LLP, Raleigh, North Carolina, for Movant. Seth Morgan Wood, Office of the United States Attorney, Raleigh, North Carolina, for Respondent. ON BRIEF: Kelly Margolis Dagger, Ellis & Winters LLP, Raleigh, North Carolina, for Movant. Thomas G. Walker, United States Attorney, Jennifer P. May–Parker, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Respondent.

Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge.

Motion granted by published opinion. Judge Gregory wrote the opinion, in which Judge Harris and Senior Judge Davis joined.

GREGORY, Circuit Judge:

Movant Creadell Hubbard seeks pre-filing authorization to pursue a successive § 2255 petition for habeas relief. For the reasons that follow, we grant his motion.

I.

On July 19, 1988, Creadell Hubbard was indicted on the following numbered criminal counts: (1) armed bank robbery, 18 U.S.C. § 2113(a) & (d); (2) carrying a firearm during a crime of violence, id. § 924(c)(1) & (3); (3) possessing stolen money, id. § 2113(c) & (d); and (4) conspiracy to possess stolen money, id. Hubbard was convicted by a jury on all four counts. The district court determined at sentencing that Hubbard was a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 (U.S. Sentencing Comm'n 1988) (“Sentencing Guidelines”) because two of his prior convictions were for “crime[s] of violence.” United States v. Hubbard , No. 89–5146, 1990 WL 194520, at *2 (4th Cir. Dec. 10, 1990) (unpublished). The prior convictions were for second-degree murder and Kentucky third-degree burglary. Id. at *3. Counts 1, 3, and 4 were merged for sentencing purposes, and the district court imposed a 327-month term of imprisonment for those counts, along with a consecutive sixty-month prison term for Count 2. In addition, the district court imposed a three-year term of supervised release.

Hubbard timely appealed to this Court, citing as error the district court's (1) failure to sever his trial from that of his codefendant; (2) denial of his motion for judgment of acquittal for insufficiency of the evidence; and (3) finding that Kentucky third-degree burglary was a predicate crime of violence supporting his career-offender status. Id. at *1–3. Hubbard's convictions and sentence were affirmed. Id. at *2, *4. In April 1997, Hubbard filed a motion to vacate under 28 U.S.C. § 2255. Proceedings on that motion ultimately resulted in summary judgment against Hubbard and dismissal of his subsequent appeal to this Court. United States v. Hubbard , No. 99–7147, 2000 WL 328084, at *1 (4th Cir. Mar. 29, 2000) (unpublished).

In August 2015, Hubbard filed a pro se motion with this Court seeking an order authorizing the district court to consider a successive § 2255 motion, citing Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). We now address that motion.

II.

Successive petitions for federal habeas corpus review under § 2255 may not be filed in a district court without prior approval from a circuit court of appeals. 28 U.S.C. § 2255(h) ; In re Vassell , 751 F.3d 267, 268–69 (4th Cir. 2014). In deciding whether to grant the motion for pre-filing authorization, this Court must determine whether it relies on

(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.

§ 2255(h). It is the latter of these that Hubbard seeks to show.

Hubbard argues that the Supreme Court's decision in Johnson produced a new rule of constitutional law made retroactive by that Court, and that he is entitled to seek relief under the new rule. While his motion was pending, the Supreme Court decided Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), which confirmed Hubbard's position that the rule in Johnson is retroactive. Id. at 1265. With the retroactivity of Johnson established, it remains for this Court to determine whether the rule can support Hubbard's habeas claims.

Hubbard argues that the holding in Johnson can provide him relief in two ways. First, he seeks to apply Johnson to eliminate his conviction for carrying a firearm during a crime of violence (Count 2), arguing that federal armed bank robbery (Count 1 and the predicate for Count 2) is no longer a crime of violence under the rule established in Johnson . Second, he seeks to challenge his career-offender status by arguing that, under Johnson , Kentucky third-degree burglary no longer qualifies as a crime of violence under the Sentencing Guidelines. Since Hubbard's motion was filed, this Court has decided, consonant with our precedent, that federal armed bank robbery is a crime of violence, specifically under the “force clause” of 18 U.S.C. § 924(c)(3), and that the holding in Johnson is inapplicable. United States v. McNeal , 818 F.3d 141, 151–57 (4th Cir. 2016). As a result, the only one of Hubbard's claims that remains viable is his argument that his Kentucky third-degree burglary conviction is no longer a predicate for establishing his career-offender status.

In analyzing the motion, we need not decide whether Hubbard will ultimately prevail on his claim, only whether he is entitled to pursue a successive claim. In re Williams , 330 F.3d 277, 282 (4th Cir. 2003). At this stage, the moving party need only “make[ ] a prima facie showing that the application satisfies the requirements of [§ 2244 ]” to gain pre-filing authorization. 28 U.S.C. § 2244(b)(3)(C).¹ Thus, Hubbard only needs to show that he “presents a claim that ‘relies on a [qualifying] new rule of constitutional law,’ ” In re Vassell , 751 F.3d at 271 (quoting § 2244(b)(2)(A) ) (alteration in Vassell ) (emphasis added), and that he makes “a sufficient showing of possible merit to warrant a fuller exploration by the district court,” Williams , 330 F.3d at 281 (citation and internal quotation marks omitted).

We now turn to the substance of Hubbard's remaining claim.

III.

In 2015, the Supreme Court struck the residual clause of the Armed Career Criminal Act (“ACCA”) for being unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. Johnson , 135 S.Ct. at 2555–57. “The void-for-vagueness doctrine prohibits the government from imposing sanctions ‘under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.’ ” Welch , 136 S.Ct. at 1262 (quoting Johnson , 135 S.Ct. at 2556 ). The now-invalidated ACCA residual clause made any crime punishable by more than one year in prison and that “otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another” a violent felony. 18 U.S.C. § 924(e)(2)(B)(ii). Applying the vagueness doctrine, the Supreme Court concluded that the ACCA's residual clause was unconstitutional under both standards: it failed to provide “fair notice to defendants” and “invite[d] arbitrary enforcement by judges.” Johnson , 135 S.Ct. at 2557.

In this case, the parties do not dispute that Johnson would permit the Court to authorize a petitioner to file a successive § 2255 motion under the appropriate circumstances: Johnson announced a new rule of constitutional law that the Supreme Court made retroactive and that was previously unavailable. See 28 U.S.C. § 2255(h)(2). Instead, the government argues that Hubbard's claim fails on two grounds: first, that Johnson applies only to the ACCA's residual clause, not to residual clauses found at 18 U.S.C. §§ 16(b) & 924(c)(3)(B); and second, that Hubbard's challenge fails regardless because his sentence was determined using the Sentencing Guidelines (which, until November 1989, incorporated by express reference the definition of “crime of violence” set forth in § 16(b) into the career-offender guideline), making application of Johnson to this case procedural (rather than substantive) and therefore not retroactive. We are not persuaded by either of the government's contentions.

A.

Turning to the government's first argument, this Court must answer whether the Johnson rule applies to the distinct but similar residual clause at issue in Hubbard's case.

“In determining whether a prior conviction triggers a sentence enhancement under the Sentencing Guidelines, we approach the issue categorically, looking only to the fact of conviction and the statutory definition of the prior offense.” United States v. Montes–Flores , 736 F.3d 357, 364 (4th Cir. 2013) (citation and internal quotations omitted). The statute under which Hubbard was convicted defines third-degree burglary as burglary of a building, and “building” refers to both dwellings and nondwellings. Hubbard , 1990 WL 194520, at *3 (citing Ky.Rev.Stat.Ann. §§ 511.010, 511.040 ). Hubbard was sentenced on April 21, 1989, as a career offender under U.S.S.G. § 4B1.1,² which in turn relied on § 4B1.2 for definitions of key terms. At that time, as noted, § 4B1.2 defined the term “crime of violence” by reference to 18 U.S.C. § 16. U.S.S.G. § 4B1.2(1) (U.S. Sentencing Comm'n 1988); see also 18 U.S.C. § 16(b) (1988) (defining “crime of violence” as one 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”). Under that definition the district court found, and a panel of this Court affirmed, that Kentucky third-degree burglary was a crime of violence. Hubbard , 1990 WL 194520, at *3. The offense was therefore treated as one of the...