United States v. McKinney
| Decision Date | 16 February 2023 |
| Docket Number | 20-6396 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONZELL ALI MCKINNEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA INC., Charlotte, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
ON BRIEF:
Anthony Martinez, Federal Public Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before WILKINSON, Circuit Judge, and MOTZ and KEENAN, Senior Circuit Judges.
In 2012, Donzell Ali McKinney pled guilty to two counts - conspiracy to commit Hobbs Act robbery and a violation of 18 U.S.C. § 924(c) for discharging a firearm during and in relation to that conspiracy. Under subsequent controlling precedent, McKinney now stands convicted of, and imprisoned for, conduct that does not violate § 924(c) and in fact is not criminal. Accordingly, he brought this 28 U.S.C § 2255 motion asking the district court to vacate his § 924(c) conviction. The district court refused to do so, and McKinney now appeals. For the reasons that follow, we reverse and remand the case to the district court with instructions to vacate McKinney's § 924(c) conviction and for further proceedings consistent with this opinion.
This case arises from a September 2011 conspiracy to rob a barbecue restaurant in Asheville, North Carolina. At around 2:00 a.m., McKinney and his coconspirator approached two women who had left the restaurant. After hitting one woman on the head, McKinney ordered them to the ground and started beating on the restaurant's door. When the restaurant manager came to the door, McKinney pointed a gun at the manager, demanded he open the door, discharged the gun (wounding no one), and ordered him to hand over money in the safe. McKinney and his coconspirator fled with $451.
In a three-count indictment, the Government charged McKinney with substantive Hobbs Act robbery, Hobbs Act conspiracy, and a violation of § 924(c) predicated on substantive Hobbs Act robbery. J.A. 6-9. But a careful review of the record reveals that McKinney expressly refused to plead guilty to substantive Hobbs Act robbery and the § 924(c) count predicated on it. S.J.A. 14-16. Indeed, two plea hearings failed because of McKinney's persistent refusal to plead guilty to those counts. S.J.A. 28-31.
The Government then filed a bill of information charging McKinney with Hobbs Act conspiracy and a single § 924(c) count with Hobbs Act conspiracy as the sole predicate offense. J.A. 18-20. McKinney agreed to plead guilty to these two counts in the bill of information in exchange for the Government's agreement to dismiss the remaining charges. S.J.A. 62. McKinney's plea agreement, entered in 2012, included a waiver of the right to contest his conviction and sentence except on grounds of ineffective assistance of counsel or prosecutorial misconduct. The district court sentenced McKinney to 70 months for Hobbs Act conspiracy and 120 months for the § 924(c) conviction predicated on Hobbs Act conspiracy, to run consecutively. McKinney did not pursue a direct appeal.
Four years later, in 2016, McKinney filed a § 2255 motion to vacate his § 924(c) conviction and sentence. In his motion, he pointed out that Johnson v. United States, 576 U.S. 591 (2015), had struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague, and Welch v. United States, 578 U.S. 120 (2016), held Johnson retroactively applicable on collateral review. McKinney argued that because § 924(c)'s residual clause was "functionally indistinguishable" from the ACCA's residual clause, his § 924(c) conviction could not stand. The district court stayed the matter pending decisions from the Supreme Court and this court. Three years later, the Supreme Court decided United States v. Davis, 139 S.Ct. 2319 (2019), holding that the residual clause of § 924(c), too, was unconstitutionally vague. McKinney filed a supplemental motion arguing that Davis further compelled vacatur of his § 924(c) conviction.
The Government moved to dismiss McKinney's § 2255 motion, asserting that the appeal waiver in his plea agreement and procedural default foreclosed his claim. In January 2020, the district court granted the Government's motion to dismiss. Acknowledging that McKinney's § 924(c) conviction was likely invalid, the district court nonetheless found that the appeal waiver barred his challenge and that McKinney failed to show cause and prejudice or actual innocence to excuse his procedural default. We granted McKinney a certificate of appealability on the following issues: (i) whether his § 924(c) conviction is invalid in light of Davis; (ii) whether his appeal waiver bars his claim; (iii) whether he has demonstrated cause and prejudice to excuse his procedural default; and (iv) whether he has demonstrated actual innocence to excuse his procedural default.
We review the district court's denial of a § 2255 motion de novo. United States v. Palacios, 982 F.3d 920, 923 (4th Cir. 2020).
Although we typically reach the underlying merits of a § 2255 motion last, this is an unusual petition in that the merits are clear-cut. Indeed, the Government concedes the invalidity of McKinney's § 924(c) conviction predicated on Hobbs Act conspiracy. See Br. of the United States 16.
The concession is well-taken. In Davis, 139 S.Ct. at 2336, the Supreme Court held that the residual clause of § 924(c) was unconstitutionally vague, leaving only the question of whether Hobbs Act conspiracy could be a "crime of violence" under the elements clause of § 924(c). We held in United States v. Simms, 914 F.3d 229, 233-34 (4th Cir. 2019) (en banc), that Hobbs Act conspiracy also could not constitute a "crime of violence" under the elements clause of § 924(c). Moreover, we have since held that Davis "applies retroactively to cases on collateral review." In re Thomas, 988 F.3d 783, 789 (4th Cir. 2021).
The record is clear that the sole predicate offense underlying McKinney's § 924(c) conviction is Hobbs Act conspiracy. J.A. 18-20. McKinney's plea agreement stated that he was agreeing to enter a guilty plea to the two counts set forth in the bill of information. J.A. 151. The bill of information charged McKinney with Hobbs Act conspiracy and use of a firearm "during and in relation to a crime of violence, that is conspiracy to commit interference with commerce by threats and violence," in violation of § 924(c). J.A. 19 (emphasis added). Because Hobbs Act conspiracy does not constitute a predicate "crime of violence" for a § 924(c) violation, McKinney stands convicted of a crime that no longer exists. Ordinarily, that alone would entitle him to relief on his § 2255 motion.
The Government contends, however, that McKinney executed a plea agreement that bars his claim. Specifically, it argues that because McKinney does not raise either of the two types of claims expressly exempted from the waiver in his plea agreement - ineffective assistance of counsel and prosecutorial misconduct - he cannot challenge his conviction on any other grounds.
Although McKinney does not raise those claims or contend that his appeal waiver was invalid, he nonetheless argues that we should refuse to enforce it. We can do so under a few limited circumstances. See, e.g., United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992) (). Among these is the most fundamental reason, that is, if enforcing an appeal waiver would result in a "miscarriage of justice." See United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016); United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
As we explained in Adams, to establish such a miscarriage of justice, a defendant need only make "a cognizable claim of actual innocence." 814 F.3d at 182 (emphasis added). The appeal waiver in Adams was substantially similar to the one in this case: it "waived [Adams's] right to challenge his conviction or sentence in a motion pursuant to 28 U.S.C. § 2255 unless he did so on the basis of ineffective assistance of counsel or prosecutorial misconduct." Id. at 180. And in Adams, we found that, in light of intervening precedent invalidating a § 922(g) conviction because it was no longer based on a valid predicate, the defendant made "a cognizable claim of actual innocence." Id. at 182. For this reason, the defendant in Adams met the standard for miscarriage of justice, and his appeal waiver did not bar his claim. Id. at 183.
That logic applies here. Under Davis and Simms, Hobbs Act conspiracy no longer qualifies as a predicate offense for a § 924(c) conviction. McKinney, like Adams, has made a cognizable claim of actual innocence and so, like Adams, has satisfied the miscarriage-of-justice requirement. See also United States v. Sweeney, 833 Fed.Appx. 395, 396-97 (4th Cir. 2021) ().[1] Accordingly, McKinney's appeal waiver does not bar his claim for relief.
Absent a...
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