South Carolina Lawyers Weekly
Where the government conceded that a 2019 Supreme Court decision finding that the residual clause of 18 U.S.C. § 924(c)’s crime-of-violence definition was unconstitutionally vague and applied retroactively to cases on collateral review, a defendant who demonstrated his crime-of-violence claim warranted further review was granted a successive § 2255 application.
Background
Dearnta Thomas seeks authorization to file a successive § 2255 application. His claim rests on the rule announced in Davis v. United States, 139 S. Ct. 2319 (2019), finding that the residual clause of 18 U.S.C. § 924(c)’s crime-of-violence definition was unconstitutionally vague. The court faces two questions in determining whether to grant his motion: (1) whether Davis applies retroactively to cases on collateral review and (2) whether Thomas states a plausible crime-of-violence claim that warrants further exploration by the district court.
Retroactivity
The court first considers whether Davis (1) announced a new rule of constitutional law (2) made retroactive to cases on collateral review (3) by the Supreme Court (4) that was previously unavailable. The government does not address this question in its brief, apparently agreeing with other circuits that Davis satisfies these requirements. That concession is correct.
First, Davis’s constitutional rule is new. Second, the new rule in Davis applies retroactively to cases on collateral review. Before Davis, someone who had committed a “crime of violence” that satisfied the definition in the residual clause, but not the definition in the force clause, was subject to prosecution under § 924(c). But after Davis, that same person cannot face a § 924(c) charge. So Davis placed that individual and others like him beyond the government’s power to prosecute.
Third, it was the Supreme Court that made Davis retroactive. Although the Supreme Court did not state that Davis was retroactive in Davis itself, the Supreme Court has held that new substantive rules of constitutional law “generally” apply retroactively to cases on collateral review. And Davis announced a new substantive constitutional rule.
Finally, an argument based on the rule announced in Davis was previously unavailable to Thomas. The last time Thomas challenged his conviction in federal court was when he filed his first pre-filing motion for authorization in March 2019. Davis was not decided until several months later.
Plausible claim
Having found Thomas’s crime-of-violence claim relies on a new retroactive rule, the court must ask if he states a “‘plausible’ claim for relief.”
In United States v. Mathis, 932 F.3d 242 (4th Cir. 2019), the court considered whether two violent crimes in aid of racketeering, or VICAR, offenses predicated on violations of Virginia law qualified as crimes of violence under § 924(c)’s force clause. The court looked through the elements of the VICAR offense to consider whether the charged state-law predicates were categorically crimes of violence. Thomas argues the court should follow that approach in this case. And if it does so, he makes a plausible argument that his Davis claim could prevail.
But the court’s recent holding in United States v. Keene, 955 F.3d 391 (4th Cir. 2020), suggests that it need not look through the VICAR elements and examine only the underlying state-law predicates. That suggests that the court is not limited to considering whether the charged state-law predicate offenses are categorically crimes of violence independent of VICAR.
And the government explains that doing so permits the court to consider an easier question: whether the assault-with-a-dangerous-weapon element satisfies § 924(c)’s force clause. Based on a cursory glance at these competing approaches, the court finds that Thomas has stated a plausible claim for relief that warrants further exploration by the district court.
Authorization to file a successive § 2255 application granted.
Concurrence
(Wilkinson, J.): I am happy to concur in the majority opinion in this case. I do so for two reasons.
Congress did not enact AEDPA’s pre-filing requirement on a whim. It was a gateway decidedly not designed for universal collateral admissions. I do not understand the majority opinion to regard this requirement as any sort of open door. My fine colleagues rightly recognize, for example, that there is no need to grant authorization to applications that are untimely or that raise claims presented in an earlier petition. I likewise commend the majority’s approach to Thomas’s 18 U.S.C. § 924(c) conviction.
In re: Thomas (Lawyers Weekly No. 001-040-21, 16 pp.) (Julius N. Richardson, J.) (J. Harvie Wilkinson, J., concurring) Case No. 19-292. Feb. 23, 2021. From E.D. Va. (Application for successive habeas authorization) Geremy C. Kamens and Frances H. Pratt for Movant. G. Zachary Terwilliger, Daniel T. Young and Richard D. Cooke for Respondent.
