King v. United States, No. 16-1621

• Decision Date: 10 July 2020
• Docket Number: No. 16-1621
• Parties: Sean KING, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — First Circuit

965 F.3d 60

Sean KING, Petitioner,

v.UNITED STATES of America, Respondent.

No. 16-1621

United States Court of Appeals, First Circuit.

July 10, 2020

Judith H. Mizner, Federal Public Defender Office, on brief for petitioner.

Seth R. Aframe, Assistant United States Attorney, and Scott W. Murray, United States Attorney, on brief for respondent.

Before Torruella, Lynch, and Barron, Circuit Judges.

TORRUELLA, Circuit Judge.

Petitioner Sean King ("King") is currently serving a 300-month sentence in federal prison for several offenses including bank robbery, in violation of 18 U.S.C. § 2113(a), as well as the use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). Presently, King petitions for leave to file a second or successive motion under 28 U.S.C. § 2255 to challenge anew his § 924(c) conviction and sentence in the district court. His case presents the single issue of whether § 2113(a) bank robbery qualifies as a crime of violence under 18 U.S.C. § 924(c)(3)(A), which is known as the statute's "force clause." Specifically, King argues that § 2113(a) bank robbery is not a crime of violence under § 924(c)'s force clause because it is an indivisible statute setting forth a single offense that may be violated by alternative means (i.e., by robbery, extortion, or burglary), which do not necessarily "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A).

Because we determine that § 2113(a) bank robbery is instead a divisible statute setting forth distinct offenses with alternative elements, and because under the modified categorical approach, King's offense of conviction is undoubtedly a crime of violence under § 924(c)'s force clause, we decline to grant King the requested second or successive § 2255 relief.

I. Background

In 2006, King stood trial on a six-count superseding indictment that charged him with: conspiracy to commit robbery, in violation of 18 U.S.C. § 371 (Count One); robbery of a credit union, in violation of 18 U.S.C. § 2113(a) (Count Two); possession and brandishing of a firearm in furtherance of a crime of violence (based on his firearm) and the same offense without brandishing (based on his co-conspirator's firearm), in violation of 18 U.S.C. § 924(c)(1)(A)(i), (ii) (Counts Three and Four); and interstate possession and transportation of a stolen motor vehicle, in violation of 18 U.S.C. §§ 2312 - 13 (Counts Five and Six).¹ The jury convicted King on all six counts, and the district court sentenced him to 360 months' imprisonment. On direct appeal, we affirmed King's sentence and all of his convictions except on Count Four (the § 924(c)(3) charge predicated on his co-conspirator's firearm). See United States v. King, 554 F.3d 177, 181, 182 (1st Cir. 2009) (vacating "the conviction and sentence as to count four, including the associated $100 special assessment" as "duplicative").

On April 22, 2010, King filed a pro se motion to vacate his sentence for the remaining convictions under 28 U.S.C. § 2255, alleging inter alia, unlawful seizure and improper submission of evidence by the Government, ineffective assistance of counsel at trial and on direct appeal, and bias on the part of the district court judge. On June 2, 2011, King and the Government filed an agreement for an amended sentence of twenty-five years' imprisonment (300 months), according to which King withdrew his motion and waived the right to challenge the amended sentence on direct appeal and collateral attack, except for any "collateral challenge based on new legal principles enunciated ... in Supreme Court or First Circuit case law decided after the date of this Plea Agreement that have retroactive effect." The district court accepted the agreement and resentenced King to 300 months' imprisonment.

Four years later, the Supreme Court decided Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 2557, 192 L.Ed.2d 569 (2015) ( Johnson II ), which held that the "residual clause" of the Armed Career Criminal Act ("ACCA") -- which defines a "violent felony" as "otherwise involv[ing] conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii) -- was "unconstitutionally vague." Based on Johnson II, King applied for leave to file a second or successive motion under 28 U.S.C. § 2255(h)(2). In relevant part, he argued that his remaining § 924(c)(3) conviction (Count Three) and sentence could no longer stand because the § 924(c) residual clause mimics the unconstitutionally vague ACCA residual clause, and his § 2113(a) bank robbery conviction (the predicate crime of violence) does not fit the § 924(c) force clause definition of a crime of violence. See 18 U.S.C. § 924(c)(3)(A). Because we had already held that § 2113(a) is categorically a crime of violence under § 924(c)(3)(A), see, e.g., Hunter v. United States, 873 F.3d 388, 390 n.2 (1st Cir. 2017) ("Because we find that [federal bank robbery] qualifies as a crime of violence under § 924(c)(3)'s force clause, we need not address [his] challenge to the constitutionality of the residual clause."), we ordered King to show cause for "why relief should not be denied" with respect to his contention that § 2113(a) is not a crime of violence under § 924(c)(3)(A). On October 29, 2018, King responded by laying the groundwork for his core contention: § 2113(a) bank robbery is not categorically a crime of violence under the force clause in § 924(c)(3)(A) because, as drafted, the federal bank robbery statute creates an indivisible, overbroad offense that may be committed by alternative means, which do not involve the use, attempted use, or threatened use of physical force.

On June 24, 2019, the Supreme Court decided United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 2336, 204 L.Ed.2d 757 (2019), which effectively extended Johnson II's void-for-vagueness holding to the residual clause in the definition of a crime of violence in 18 U.S.C. § 924(c)(3)(B), the more pertinent holding for King's purposes. Following that decision, on October 28, 2019, we ordered the parties to file supplemental briefs "address[ing] fully all issues relevant to [King's] challenge to his § 924(c) conviction under Johnson II and related precedent, including the impact of the Supreme Court's recent decision in [ Davis ]," emphasizing that the parties should principally confront "the divisibility/overbreadth arguments set out in [King's] response to the order to show cause." Our decision follows the parties' responses.

II. Discussion

A. Legal Standard

"Like other federal prisoners seeking to file ‘second or successive’ habeas petitions, [King] must obtain certification from a court of appeals before presenting [a] petition[ ] to the district court." Evans-García v. United States, 744 F.3d 235, 237 (1st Cir. 2014) (citing 28 U.S.C. § 2255(h)(2) ). Absent "newly discovered evidence," our decision to certify turns on "whether the petition ‘contain[s] ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court that was previously unavailable.’ " Id. (alteration in original) (quoting 28 U.S.C. § 2255(h)(2) ). "[A] prima facie showing at the certification stage is a ‘sufficient showing of possible merit to warrant a fuller explanation by the district court.’ " Id. (quoting Rodríguez v. Superintendent, Bay State Corr. Ctr., 139 F.3d 270, 273 (1st Cir. 1998) ). "The question ... is not whether the petition has merit, but instead ‘whether it appears reasonably likely’ that the petition satisfies the gatekeeping requirements for filing a second or successive petition." Pakala v. United States, 804 F.3d 139, 139 (1st Cir. 2015) (quoting Evans-García, 744 F.3d at 237 ).

At the same time, we have observed that "despite its superficially lenient language, the [prima facie] standard erects a high hurdle." Moore v. United States, 871 F.3d 72, 78 (1st Cir. 2017) (alteration in original) (quoting Rodríguez, 139 F.3d at 273 ). Indeed, even where a petitioner successfully identifies "a new rule of constitutional law that has been made retroactive to cases on collateral review by the Supreme Court and that was previously unavailable," id. at 79-80, we must then "consider the mixed question of whether ‘the petitioner's identified constitutional rule ... appl[ies] to the petitioner's situation,’ " id. at 80 (alterations in original) (quoting Evans-García, 744 F.3d at 240 ). "If it is ‘clear as a matter of law, and without the need to consider contested evidence’ that it does not," we will deny the application. Id. (quoting Evans-García, 744 F.3d at 240 ).

Here, the Government concedes that Davis has announced a new rule of constitutional law that both applies retroactively and was previously unavailable. The operative analysis thus turns on whether King has made the requisite prima facie showing that the rule applies to his case. As we will explain, King fails to satisfy this habeas gatekeeping standard.

B. Relevant Statutes

We begin with a brief review of the statutory provisions at issue. " Section 924(c) makes it a crime for ‘any person [to], during and in relation to any crime of violence ... use[ ] or carr[y] a firearm, or [to], in furtherance of any such crime, possess[ ] a firearm[.]’ " United States v. Cruz-Rivera, 904 F.3d 63, 65 (1st Cir. 2018) (alterations in original) (quoting 18 U.S.C. § 924(c)(1)(A) ). Section 924(c) then offers two definitions for the term "crime of violence":

an offense that is a felony and (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 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)(A), (B) (emphasis added). The first clause is known as the "force clause." See Cruz-Rivera, 904 F.3d at 65 (citing...