Johnson v. United States

Decision Date09 September 2022
Docket NumberCiv. 16-3710 (RBK),16-3711 (RBK),16-3712 (RBK),16-3796 (RBK)
PartiesLAWRENCE JOHNSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. WILLIAM BROWN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. WILLIAM HERNANDEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent. RASHEEN MINES, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — District of New Jersey

LAWRENCE JOHNSON, Petitioner,
v.

UNITED STATES OF AMERICA, Respondent.

WILLIAM BROWN, Petitioner,
v.

UNITED STATES OF AMERICA, Respondent.

WILLIAM HERNANDEZ, Petitioner,
v.

UNITED STATES OF AMERICA, Respondent.

RASHEEN MINES, Petitioner,
v.

UNITED STATES OF AMERICA, Respondent.

Civ. Nos. 16-3710 (RBK), 16-3711 (RBK), 16-3712 (RBK), 16-3796 (RBK)

United States District Court, D. New Jersey

September 9, 2022


OPINION

ROBERT B. KUGLER, United States District Judge

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I. INTRODUCTION

Petitioners, Lawrence Johnson, William Brown, William Hernandez and Rasheen Mines (hereinafter collectively the “Petitioners”), are federal prisoners proceeding through counsel with motions to vacate, set aside or correct their sentences pursuant to 28 U.S.C. § 2255. Petitioners argue their convictions under 18 U.S.C. § 924(c) must be vacated considering the United States Supreme Court decision in United States v. Davis, 139 S.Ct. 2319 (2019). For the following reasons, Petitioners' claims fail on the merits. Their motions to vacate are therefore denied and a certificate of appealability shall not issue.

II. FACTUAL AND PROCEDURAL BACKGROUND

Petitioners invaded a New Jersey home armed with at least two handguns on December 26, 2005. Several individuals were home when Petitioners entered. Petitioners stole cash and jewelry from the victims and the home and then led police on a high-speed vehicle chase from New Jersey to Pennsylvania.

A grand jury charged Petitioners in a nine-count indictment. (See Crim. No. 06-126 ECF 68). Petitioners went to trial and were convicted by a jury of several offenses. Most relevant to this opinion, the jury convicted Petitioners on conspiracy to violate the Hobbs Act by robbery in

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violation of 18 U.S.C. § 1951(a), (b)(1) and (b)(3) (Count One); Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), (b)(1) and (b)(3) (Count Two); and brandishing a firearm in connection with a crime of violence in connection with a crime of violence in violation of 18 U.S.C. § 924(c), 924(c)(1)(A)(ii) and 18 U.S.C. § 2 (Count Five) as well as other offenses not relevant to this opinion. See United States v. Hernandez, 306 Fed.Appx. 719, 720-21 (3d Cir. 2009). The late Honorable Jerome B. Simandle sentenced Brown, Hernandez and Mines to a total of 480 months imprisonment and Johnson to 424 months imprisonment. Each Petitioner received 120 months on their conviction under Count Five as part of their overall sentences.

The United States Court of Appeals for the Third Circuit affirmed Petitioners' judgments of conviction on direct appeal. See Hernandez, 306 Fed.Appx. 719. Petitioners separately filed motions to vacate, set aside or correct their judgments pursuant to 28 U.S.C. § 2255. (See Civ. Nos. 10-2784 (Brown); 10-2984 (Johnson); 10-4943 (Hernandez); and 10-5163 (Mines)). All were unsuccessful.

In 2016, Petitioners sought permission from the Third Circuit to file second or successive § 2255 motions claiming that their 18 U.S.C. § 924(c) convictions on Count Five were invalid pursuant to the United States Supreme Court's decision in Johnson v. United States, 576 U.S. 591 (2015). The Third Circuit stayed Petitioners' requests pending a decision from the Supreme Court related to challenges to the “residual clause” of 18 U.S.C. § 924(c)(3)(B).

Thereafter, in United States v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court found the “residual clause” of § 924(c)(3)(B) was unconstitutionally vague. Subsequently, the Third Circuit authorized Petitioners right to proceed with a second or successive § 2255 motion that challenged their § 924(c) convictions in Count Five considering the Supreme Court's decision in Davis. See In re Matthews, 934 F.3d 296 (3d Cir. 2019).

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In November, 2019, Petitioners, now represented by the New Jersey Federal Public Defender's Office, filed supplemental briefs in support of their now authorized second or successive § 2255 motions. Petitioners argue their convictions of brandishing a firearm during and in relation to a “crime of violence” in violation of 18 U.S.C. § 924(c)(1)(A) must be vacated. They argue that the relevant underlying “crime of violence” was conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) which is no longer a “crime of violence” considering the Supreme Court's decision in Davis. Respondent opposes Petitioners' § 2255 motions.

III. LEGAL STANDARD

A motion to vacate, set aside or correct a sentence of a person in federal custody pursuant to 28 U.S.C. § 2255 entitles a prisoner to relief if “the court finds ... [t]here has been such a denial or infringement of the constitutional rights of the prisoner as to render judgment vulnerable to collateral attack.” 28 U.S.C. § 2255(b). “In considering a motion to vacate a defendant's sentence, ‘the court must accept the truth of the movant's factual allegations unless they are clearly frivolous based on the existing record.'” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005) (quoting Gov't of Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)) (citing R. Governing § 2255 Cases R. 4(b)).

IV. DISCUSSION

Section 924(c) of Title 18 of the United States Code makes it a crime for any person who uses or carries a firearm during and in relation to any crime of violence or drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). A crime of violence under the statute is defined as an offense that is a felony and that “(A) has as 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

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risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3). Subsection (A) is commonly referred to as the “elements clause” and subsection (B) is commonly referred to as the “residual clause.” In Davis, the Supreme Court held the residual clause, §924(c)(3)(B), was unconstitutionally vague. See 139 S.Ct. 2319. However, Davis left the elements clause intact. Thus, moving forward, an offense is now a “crime of violence” within the meaning of the statute only if it meets the definition contained in the elements clause, § 924(c)(3)(A).

Petitioners argue their convictions under Count Five for violating § 924(c) must be vacated on collateral review considering Davis's holding. This Court disagrees.

A. Procedural Default

Respondent's initial argument (at least in part) asserted Petitioners procedurally defaulted their claims challenging their convictions in Count Five by not raising them on direct review. (See Civ. No. 16-3710 ECF 13 at 11-15). However, in its most recent filing (see Civ. No. 163710 ECF 26 at 3), Respondent requests this Court analyze Petitioners' claims on the merits as the United States District Court for the Middle District of Pennsylvania did last year in Bonner v. United States, 521 F.Supp.3d 554 (M.D. Pa. 2021) and United States v. Scott, 521 F.Supp.3d 538 (M.D. Pa. 2021). Given this request by Respondent, this Court will assume arguendo that Petitioners have cleared the procedural default hurdle and analyze their claims on the merits. See, e.g., Berry v. United States, No. 16-3489, 2022 WL 970154 (D.N.J. Mar. 31, 2022).

B. Merits

Petitioners' jury could use multiple theories of liability as predicates as a “crime of violence.” to find Petitioners guilty of violating § 924(c). Among the “crime of violence” predicates under § 924(c) submitted to the jury was Hobbs Act robbery and conspiracy to

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commit Hobbs Act robbery. (See Crim. No. 06-126 ECF 112 at 49, 103-04, 106, 108-10). Petitioners assert that the Second Superseding Indictment, the jury instructions and the verdict sheet are ambiguous which specific predicate crime though the jury in fact used to find that the Petitioner's brandished and used a firearm during a “crime of violence” to violate § 924(c). Petitioners rely heavily on the modified categorical approach to claim this Court must assume that Petitioners' convictions under § 924(c) rested on the least of the acts criminalized - in this case - conspiracy to commit Hobbs Act robbery, which, after Davis, can no longer be considered a predicate “crime of violence.” Because conspiracy to commit Hobbs Act robbery is not a “crime of violence,” Petitioners therefore assert their § 924(c) convictions in Count Five must be vacated.

Respondent concedes conspiracy to commit Hobbs Act robbery is not a “crime of violence” under § 924(c)(3)(A). (See Civ. No. 16-3710 at 15-1 at 9-10). Respondent though argues Petitioners misuse and misapply the categorical approach in their attempt to vacate their § 924(c) convictions. Respondent rather asserts that once the categorical approach is used to (as they concede) find that conspiracy to commit Hobbs Act robbery does not constitute a “crime of violence,” harmless error should apply which permits this Court to view the entire record, including, most importantly, the trial transcript. Upon applying a harmless error standard, Respondent then argues there is no “reasonable probability” that the jury would have acquitted Petitioners of the § 924(c) charge in Count Five if the jury had been instructed more specifically that the government was required to prove that Petitioners' brandished a gun in relation to a Hobbs Act robbery. For the following reasons, this Court agrees with Respondent's position.

The modified categorical approach permits a court to consult a relatively small set of documents in deciding whether a crime meets the definition of a “crime of violence.”

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See, e.g.,United States v. Cavanaugh, No. 19-3563, 2021 WL 5447017, at *3 (3d Cir. Nov. 22, 2021). However, Petitioners conflate and misuse the modified categorical approach in determining which of several alternative predicates a jury relied on in giving a general verdict. ...

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