Massey v. United States

• Decision Date: 11 July 2018
• Docket Number: August Term 2017,Docket No. 17-1676
• Citation: 895 F.3d 248
• Parties: Burgess MASSEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

895 F.3d 248

Burgess MASSEY, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.^*

Docket No. 17-1676

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: April 20, 2018

Decided: July 11, 2018

Darrell B. Fields, Assistant Federal Public Defender, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Petitioner-Appellant.

Kiersten A. Fletcher, Assistant United States Attorney (Won S. Shin, Assistant United States Attorney, on the brief ) for Geoffrey S. Berman, United States Attorney for the Southern District of New York, for Respondent-Appellee.

Before: WESLEY and CHIN, Circuit Judges, and FURMAN, Judge.^**

Per Curiam:

Burgess Massey was convicted of possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) in March 2004. The District Court—during sentencing—explicitly found that Massey’s prior felony convictions for third-degree robbery, second-degree assault, and second-degree attempted assault (all under New York law) subjected his sentence to enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), because all three of those offenses involved the use or attempted use of force; the court imposed a sentence of 235 months’ imprisonment. App. 30.¹ This Court affirmed his conviction and sentence, concluding that "the district court properly relied on the statutory elements of Massey’s prior convictions in finding he had committed three prior violent felonies." United States v. Massey , 461 F.3d 177, 179 (2d Cir. 2006) (citing and quoting the "force clause" from the ACCA, 18 U.S.C. § 924(e)(2)(B) ).

After the Supreme Court denied his petition for a writ of certiorari , Massey v. United States , 549 U.S. 1136, 127 S.Ct. 988, 166 L.Ed.2d 746 (2007), Massey filed his first motion for relief pursuant to 28 U.S.C. § 2255, Massey v. United States , 08-924, 2009 WL 1285991 (S.D.N.Y. Apr. 23, 2009). The District Court denied his motion and did not issue a certificate of appealability, finding that his three prior offenses "all qualify as violent felonies for purposes of an ACCA sentence enhancement." Id. at *3.²

Following this unsuccessful first motion, Massey moved in this Court several times for leave to file successive § 2255 motions. As relevant here, a successive § 2255 motion is only permissible if it contains a claim that relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2).

This Court denied his first two successive motions in 2013 and 2014. Massey v. United States , 13-2947 (2d Cir. Sept. 4, 2013), ECF No. 17; Massey v. United States , 14-2281 (2d Cir. July 24, 2014), ECF No. 19. After the Supreme Court held in Johnson v. United States (Johnson II ), ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), that the residual clause of the ACCA was unconstitutionally vague, Massey once more moved for leave to file a successive § 2255 motion. This third motion was denied by this Court, which determined Massey failed to make "a prima facie showing that the new rule of constitutional law announced in Johnson [II ] applies to his conviction. Petitioner’s sentence was not enhanced under the provision of the ACCA invalidated by Johnson [II ]."Massey v. United States , 16-1043 (2d Cir. June 13, 2016), ECF No. 36 (citations omitted).³

After the denial of Massey’s third motion, this Court issued its now-vacated decision in United States v. Jones (Jones I ), 830 F.3d 142 (2d Cir. 2016), vacated , 838 F.3d 296 (mem.) (2d Cir. 2016). The Jones I decision, which overruled prior contrary precedent of this Court— United States v. Spencer , 955 F.2d 814 (2d Cir. 1992)⁴ —held that New York first-degree robbery was not categorically a "crime of violence" under the force clause of the United States Sentencing Guidelines ("USSG"). Jones I , 830 F.3d 142. That holding was based on the Supreme Court’s decision in Johnson v. United States (Johnson I ), 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), which held, as a matter of statutory interpretation, that the phrase "physical force" in the ACCA’s force clause meant "violent force—that is, force capable of causing physical pain or injury to another person." Id. at 140, 130 S.Ct. 1265.

Massey—relying on Jones I —then moved to recall the mandate denying his third motion. Massey v. United States , 16-1043 (2d Cir. Sept. 1, 2016), ECF. No. 39. He argued that manifest injustice would result if the mandate were not recalled because (1) one of his three ACCA predicate offenses, New York third-degree robbery, no longer qualified as an ACCA predicate after Jones I and Johnson II ; and (2) this Court had allowed other movants to file successive motions based on Johnson II . Id. at 2, 4, 130 S.Ct. 1265. Before the Jones I decision was vacated, this Court granted Massey’s motion to recall the mandate and granted Massey’s motion for leave to file a successive § 2255 motion, instructing the District Court "to address, as a preliminary inquiry under [ 28 U.S.C.] § 2244(b)(4), whether the Supreme Court’s decision in Johnson [II ] entitles [Massey] to relief." Massey v. United States , 16-1043 (2d Cir. Sept. 21, 2016), ECF No. 44.⁵

The District Court concluded that Massey’s claim satisfied the requirements of 28 U.S.C. § 2255(h) because it "relie[d] on" Johnson II .

Massey v. United States , 17-1455, 2017 WL 2242971, at *3 (S.D.N.Y. May 22, 2017). After addressing this threshold issue, the District Court concluded on the merits that Massey’s prior New York third-degree robbery conviction was a crime of violence under the ACCA. Id. The District Court acknowledged that after Jones I was vacated,⁶ the earlier precedent of this Circuit—although decided pre- Johnson I —controlled, and "case law in this Circuit—as it currently stands—holds that New York robbery is a ‘crime of violence’ for purposes of the ACCA." Id. The District Court therefore denied Massey’s motion but—concerned with the shifting legal landscape—issued a certificate of appealability. Id. at *4. Massey timely appealed.

DISCUSSION

We must first evaluate whether Massey’s successive § 2255 motion satisfies the statutory requirements governing successive habeas petitions; if the motion fails to satisfy those threshold requirements, we need not reach the merits of his claim. See 28 U.S.C. §§ 2244(a), (b)(3)–(4), 2255(h).⁷ Although this Court previously authorized the District Court to consider Massey’s motion, this Court’s determination that Massey had made a prima facie showing that his motion satisfied the requirements of 28 U.S.C. § 2244 and § 2255(h) was not a finding that Massey actually satisfied those requirements, and it does not prevent our review now. See Tyler v. Cain , 533 U.S. 656, 660–61 & n.3, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) ; United States v. Geozos , 870 F.3d 890, 894 n.5 (9th Cir. 2017). As noted earlier, § 2255 requires that a federal habeas petitioner’s second or successive motion contain a claim that relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2). The District Court concluded—and Massey argues on appeal—that Massey’s claim relies at least in part on the new rule of constitutional law announced in Johnson II because Johnson II invalidated the residual clause of the ACCA. Massey , 2017 WL 2242971, at *3. See Johnson II , 135 S.Ct. at 2563.⁸

Massey maintains that his force clause claim—which is necessarily based on Johnson I ’s interpretation of the ACCA’s force clause—also relies on the new constitutional rule announced in Johnson II . He contends that if he were successful on his merits argument under Johnson I —that New York third-degree robbery is not an ACCA predicate under the ACCA’s force clause—his sentence could still have been upheld pursuant to the residual clause prior to Johnson II . Under Massey’s theory, both Johnson I ’s statutory interpretation of the force clause and Johnson II ’s constitutional invalidation of the residual clause were therefore necessary to grant him relief from his ACCA sentence enhancement. Thus, Massey asserts that his claim in essence relies on Johnson II . We disagree.

Massey’s claim relies on a new rule of constitutional law only if he was sentenced in violation of that new constitutional rule. Geozos , 870 F.3d at 895. The question before us is therefore whether Massey was sentenced in violation of the new constitutional rule announced in Johnson II , which held that the ACCA’s residual clause was unconstitutionally vague. Johnson II , 135 S.Ct. at 2563. The record from Massey’s sentencing hearing answers that question.

We have no doubt that Massey’s sentence was enhanced pursuant to the ACCA’s force clause. The District Court clearly stated this during the sentencing hearing: "the statutes for robbery in the third degree, assault in the second degree and attempted assault in the second degree all involve the use or attempted use of force." App. 30. The District Court also later noted that it had "unequivocally found that Massey’s prior convictions were ACCA predicates under the ‘force’ clause, not the residual clause." Massey , 2017 WL 2242971, at *3. Additionally, in Massey’s direct appeal, this Court cited to the force clause when holding that "the district court properly relied on the statutory elements of Massey’s prior convictions in finding he had committed three prior violent felonies." Massey , 461 F.3d at 179 (citing and quoting the "force clause" from the ACCA, 18 U.S.C. § 924(e)(2)(B) ).

Massey’s claim relies on Johnson I , a decision that interpreted the ACCA’s force clause but did not announce a new rule of constitutional law, and therefore cannot provide the basis for a successive § 2255 motion. 28 U.S.C. § 2255(h). Massey’s claim does not rely on Johnson II because his sentence was not in any way predicated on the portion of the ACCA...