PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-292
In re: DEARNTA LAVON THOMAS, a/k/a Bloody Razor,
Movant.
Application for Successive Habeas Authorization Arising from the United States District Court for the Eastern District of Virginia, at Norfolk.
Submitted: December 11, 2020 Decided: February 23, 2020
Before WILKINSON, AGEE, and RICHARDSON, Circuit Judges.
Motion granted by published opinion. Judge Richardson wrote the opinion, in which Judges Wilkinson and Agee concurred. Judge Wilkinson wrote a concurring opinion.
Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Movant. G. Zachary Terwilliger, United States Attorney, Daniel T. Young, Assistant United States Attorney, Alexandria, Virginia, Richard D. Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Respondent. RICHARDSON, Circuit Judge: 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). We face 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.
Today we join our sister circuits in holding that Davis applies retroactively to cases
on collateral review. We also find that Thomas has stated a plausible claim for relief that
warrants review by a district court. We therefore grant his motion.
I. Background
In 2011, Thomas pleaded guilty to a substantive RICO offense. 18 U.S.C.
§ 1962(c). 1 He also pleaded guilty under § 924(c) to possessing a firearm in furtherance
of a crime of violence. The predicate “crime of violence” for the § 924(c) offense was
aiding and abetting the commission of VICAR assault with a dangerous weapon. 18 U.S.C.
1 The Racketeer Influenced and Corrupt Organizations Act (“RICO”) criminalizes an individual’s participation in an organized-crime enterprise. See 18 U.S.C. §§ 1961–68. RICO is supplemented by the Violent Crimes in Aid of Racketeering (“VICAR”) offense, which “addresses the particular danger posed by those . . . who are willing to commit violent crimes in order to bolster their positions within such enterprises.” United States v. Ayala, 601 F.3d 256, 266 (4th Cir. 2010). To sustain a VICAR conviction, the defendant must have committed another state or federal crime that fits within VICAR’s violent- offense definition, for example, “assault with a dangerous weapon.” See 18 U.S.C. § 1959(a)(3). 2 §§ 1959(a)(3), 2. The VICAR offense in turn was predicated on two Virginia state-law
offenses: Va. Code Ann. §§ 18.2-53.1 (“Use or display of firearm in committing felony”)
and 18.2-282 (“Pointing, holding, or brandishing firearm, air or gas operated weapon or
object similar in appearance”). Thomas was sentenced to 180 months in prison. He did
not appeal his conviction or sentence.
After Thomas’s conviction, the Supreme Court decided a line of cases that
eventually led to finding § 924(c)’s residual clause, part of the definition of “crime of
violence,” unconstitutional. First, in 2015, the Supreme Court invalidated the residual
clause of the Armed Career Criminal Act’s definition of “violent felony” for being
unconstitutionally vague. See Johnson v. United States, 576 U.S. 591, 606 (2015). Thomas
did not file a § 2255 application at that time.
Then in 2018, the Supreme Court relied on Johnson to invalidate the residual clause
in 18 U.S.C. § 16, the generally applicable “crime of violence” definition. See Sessions v.
Dimaya, 138 S. Ct. 1204, 1223 (2018). Thomas filed his first § 2255 motion within a year
of Dimaya’s issuance, arguing that his § 924(c) conviction could not stand based on that
decision. The district court denied his motion as time-barred under § 2255(f)(3), finding
that the rule Thomas sought to invoke was recognized in Johnson, not Dimaya, and that
Thomas had not filed his motion within one year of Johnson’s issuance.
Circuit courts split over whether the principles of Johnson and Dimaya rendered
§ 924(c)’s crime-of-violence residual clause unconstitutional. So the Supreme Court
granted certiorari. United States v. Davis, 139 S. Ct. 2319 (2019). But before the Supreme
3 Court could resolve the circuit split, Thomas sought authorization to file a second § 2255
application, which we denied.
Two months after we denied Thomas authorization, the Supreme Court decided
Davis, which found § 924(c)’s residual clause unconstitutionally vague. 139 S. Ct. at 2336.
Several weeks later, Thomas filed the motion for authorization to file a second or
successive § 2255 application at issue here. We have jurisdiction to rule on his motion
pursuant to 28 U.S.C. §§ 2244(b)(3)(C) and 2255(h).
II. Discussion
To file a second or successive § 2255 application in federal district court, an
applicant must first obtain authorization from a court of appeals. 28 U.S.C. § 2255(h).
Authorization requires the applicant to either (1) provide “newly discovered evidence that,
if proven and viewed in light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that no reasonable factfinder would have found the
[applicant] guilty of the underlying offense” or (2) show that his claim relies on “a new
rule of constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” Id.
Thomas’s application invokes the latter condition, citing Davis. He argues that his
§ 924(c) conviction was not predicated on a “crime of violence” because the two state-law
offenses underlying his VICAR conviction cannot satisfy § 924(c)’s force clause after
Davis invalidated § 924(c)’s residual clause.
But at this stage, Thomas need not definitively show that he will prevail on his claim.
Instead, he must only “make[] a prima facie showing that the application satisfies the
4 requirements.” § 2244(b)(3)(C) (emphasis added). 2 To do so, he must first “show that his
claim relies on a new and retroactive rule of constitutional law.” In re Irby, 858 F.3d 231,
233 (4th Cir. 2017). And then he must show that his claim is “plausible,” thus making “a
sufficient showing of possible merit to warrant a fuller exploration by the district court.”
Id. (quoting In re Hubbard, 825 F.3d 225, 229–30 (4th Cir. 2016)). We address each
requirement in turn, ultimately granting Thomas authorization to file his habeas application
in the district court. 3
A. Retroactivity
We first consider 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. 28 U.S.C. § 2255(h)(2); see Tyler v. Cain, 533 U.S. 656, 662
2 Thomas seeks to challenge his federal custody under § 2255, which incorporates the certification requirements in § 2244. 28 U.S.C. § 2255(h) (“A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals.”). 3 Section 2244(b)(1) also requires that we dismiss a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application.” 28 U.S.C. § 2244(b)(1). We have not waded into the circuit split over whether this requirement for successive § 2254 applications also applies to federal inmates seeking to file successive § 2255 applications. See Avery v. United States, 140 S. Ct. 1080, 1080–81 (2020) (Kavanaugh, J., statement respecting the denial of certiorari); see also United States v. Winestock, 340 F.3d 200, 204 (4th Cir. 2003). And we need not do so here because Thomas’s prior § 2255 application and authorization motion did not bring the same claim that he now puts forth. 5 (2001). The government does not address this question in its brief, apparently agreeing
with our sister circuits that Davis satisfies these requirements. 4 That concession is correct.
First, Davis’s constitutional rule is new. A “case announces a new rule if the result
was not dictated by precedent existing at the time the defendant’s conviction became final.”
Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality). A rule is “dictated by precedent” if
it “was apparent to all reasonable jurists.” Lambrix v. Singletary, 520 U.S. 518, 527–28
(1997). But even if a decision does not itself announce a new rule, extending an “old rule”
“in a novel setting” creates a new rule if the “old rule” is applied “in a manner that was not
dictated by precedent.” Stringer v. Black, 503 U.S. 222, 228 (1992).
While Davis looked to Johnson and Dimaya in invalidating § 924(c)’s residual
clause as unconstitutionally vague, that decision was not dictated by that precedent. 139
S. Ct. at 2326–27. The Davis Court extended the holdings of Johnson and Dimaya to
invalidate a different—even if analogous—provision in § 924(c). United States v. Reece,
938 F.3d 630, 634 (5th Cir. 2019). In doing so, Davis resolved a substantial circuit split
over the constitutionality of § 924(c)’s residual clause after Dimaya. See Davis, 139 S. Ct.
at 2325 n.2 (collecting cases); see also Butler v. McKellar, 494 U.S. 407, 415 (1990)
(“[T]he differing positions taken by the judges of the Court of Appeals” is evidence that a
4 King v. United States, 965 F.3d 60, 64 (1st Cir. 2020); United States v. Reece, 938 F.3d 630, 635 (5th Cir. 2019); In re Franklin, 950 F.3d 909, 910–11 (6th Cir. 2020); United States v. Bowen, 936 F.3d 1091, 1097–101 (10th Cir. 2019); In re Hammoud, 931 F.3d 1032, 1038–39 (11th Cir. 2019); see also In re Matthews, 934 F.3d 296, 301 (3d Cir. 2019) (authorizing a successive § 2255 motion because applicant made a “prima facie showing” that Davis announced a new rule of constitutional law that was made retroactive by the Supreme Court, without so holding). 6 case’s outcome “was susceptible to debate among reasonable minds.”). As the arguments
by several circuit courts and the dissent in Davis reflect, the rule ultimately adopted was
open to reasonable debate and not “dictated by” Johnson and Dimaya. Teague, 489 U.S.
at 301.
But the Supreme Court mandates that we look to the “precedent existing at the time
[Thomas]’s conviction became final” in 2011. Teague, 489 U.S. at 301; see also United
States v. Morris, 429 F.3d 65, 70 (4th Cir. 2005); O’Dell v. Netherland, 95 F.3d 1214, 1221
(4th Cir. 1996). And in 2011, neither Johnson nor Dimaya had been decided. So if Davis
was not dictated by precedent even after Johnson and Dimaya, it certainly was not dictated
by precedent in 2011. Cf. Welch v. United States, 136 S. Ct. 1257, 1264 (2016) (“It is
undisputed that Johnson announced a new rule.”). So the Davis rule is a new one for
purposes of this motion.
Second, the new rule in Davis applies retroactively to cases on collateral review.
“Teague and its progeny recognize two categories of decisions that fall outside th[e]
general bar on retroactivity”: (1) new substantive rules and (2) new “watershed rules of
criminal procedure.” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004)). A
“substantive” rule “alters the range of conduct or the class of persons that the law
punishes.” Schriro, 542 U.S. at 353. This category includes rules that “narrow the scope
of a criminal statute by interpreting its terms as well as constitutional determinations that
place particular conduct or persons covered by the statute beyond the State’s power to
punish.” Id. at 352 (internal citation omitted). By contrast, a procedural rule “regulate[s]
only the manner of determining the defendant’s culpability.” Id. at 353 (emphasis omitted).
7 Davis’s rule is substantive. 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. See Schriro, 542 U.S. at 352; see also Welch, 136
S. Ct. at 1265 (holding that Johnson, which invalidated the Armed Career Criminal Act’s
residual clause, announced a new substantive rule). The Davis rule is thus substantive.
Third, it was the Supreme Court that made Davis retroactive. The Supreme Court
did not state that Davis was retroactive in Davis itself. But such an express statement by
the Supreme Court is not required. Tyler, 533 U.S. at 668 (O’Connor, J., concurring) (“a
single case that expressly holds a rule to be retroactive is not a sine qua non” for satisfying
§ 2244(b)(2)(A)’s requirement that the Supreme Court itself make the rule retroactive).
Instead, a combination of Supreme Court “cases can render a new rule retroactive . . . if the
holdings in those cases necessarily dictate retroactivity of the new rule,” for example, by
saying that “all” of a certain category of rules “apply retroactively.” Id. at 666 (majority
opinion). Justice O’Connor’s concurrence in Tyler describes how two Supreme Court
cases can be read together to ‘make’ a rule retroactive:
[I]f [the Supreme Court] hold[s] in Case One that a particular type of rule applies retroactively to cases on collateral review and hold[s] in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review. In such circumstances, we can be said to have ‘made’ the given rule retroactive to cases on collateral review.
8 Id. at 668–69 (O’Connor, J., concurring); see San-Miguel v. Dove, 291 F.3d 257, 260 (4th
Cir. 2002).
That logic applies here. The Supreme Court has held that new substantive rules of
constitutional law “generally” apply retroactively to cases on collateral review. Welch, 136
S. Ct. at 1264. And Davis announced a new substantive constitutional rule. So Davis’s
retroactivity has been “necessarily dictate[d]” by prior Supreme Court cases. Tyler, 533
U.S. at 666 (majority opinion).
Finally, an argument based on the rule announced in Davis was previously
unavailable to Thomas. To satisfy this requirement, the new constitutional rule Thomas
puts forth must not have been available to him when he brought his last federal
proceeding—including an authorization motion—challenging his conviction. In re
Williams, 364 F.3d 235, 239 (4th Cir. 2004). 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. So at the time of his last
motion, Thomas did not have the opportunity to bring a claim based on Davis.
So we conclude that Davis announced a new substantive rule of constitutional law
that has been made retroactive to cases on collateral review by the Supreme Court and that
was previously unavailable to Thomas. And so by invoking Davis, Thomas’s application
overcomes the first hurdle to granting his motion.
B. Plausible claim for relief
Having found Thomas’s crime-of-violence claim relies on a new retroactive rule,
we must ask if he states a “‘plausible’ claim for relief.” In re Irby, 858 F.3d at 233 (quoting
9 In re Hubbard, 825 F.3d at 230). That determination “may entail a cursory glance at the
merits” but “the focus of the inquiry must always remain on” the authorizing standards in
§§ 2244(b)(2) and 2255(h). In re Hubbard, 825 F.3d at 231. In doing so, “we need not
decide whether [the applicant] will ultimately prevail on his claim.” Id. at 229; see also In
re Stevens, 956 F.3d 229, 233 (4th Cir. 2020) (noting that once a prima facie showing
satisfies the authorizing standard in § 2244(b)(2)(B), “we may not plod along any further”).
But we need not blind ourselves to reality. A claim is not plausible if it would
clearly fail, as authorizing such a claim would be “an exercise in futility.” In re Vassell,
751 F.3d 267, 271 (4th Cir. 2014); see also In re Williams, 330 F.3d 277, 284 (4th Cir.
2003). For that reason, we have declined to authorize successive applications under both
§§ 2254 and 2255 on procedural grounds, for example, when the application would be
untimely. In re Vassell, 751 F.3d at 272; see also In re Phillips, 879 F.3d 542, 546–47 (4th
Cir. 2018) (application for authorization under § 2254 raised claim presented in a prior
application in violation of § 2244(b)(1)).
Taking a “cursory glance at the merits,” we determine that Thomas has stated a
plausible claim for relief. In re Williams, 330 F.3d at 282; see also In re Irby, 858 F.3d at
233. In United States v. Mathis, we considered whether two VICAR offenses predicated
on violations of Virginia law qualified as crimes of violence under § 924(c)’s force clause.
932 F.3d 242, 264–67 (4th Cir. 2019). In doing so, we followed the arguments of the
parties and looked through the elements of the VICAR offense to consider whether the
charged state-law predicates were categorically crimes of violence. Id. Thomas argues
that we should follow that approach in this case. And if we do so, he makes a plausible
10 argument that his Davis claim could prevail. See Movant’s Opening Br. 18–20 (contending
that Va. Code Ann. § 18.2-282 5 does not satisfy the force clause because a person could
“point, hold or brandish” a firearm “in such manner as to reasonably induce fear in the
mind of another” with a mens rea of recklessness); id. at 21–24 (arguing that Va. Code
Ann. § 18.2-53.1 6 does not qualify as a crime of violence because there is a “realistic
probability” that an individual could be convicted of the offense by using or threatening
the use of force against himself, rather than “against another”).
But our recent holding in United States v. Keene, 955 F.3d 391 (4th Cir. 2020),
suggests that we need not look through the VICAR elements and examine only the
underlying state-law predicates. In Keene, we held that to convict a defendant of VICAR
assault with a dangerous weapon, the defendant must have “engag[ed] in conduct that
violated both th[e] enumerated federal offense as well as a state law offense, regardless
whether the two offenses are a categorical ‘match.’” Id. at 398–99. And Keene held that
5 “It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.” Va. Code Ann. § 18.2-282. 6 “It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, forcible sodomy, inanimate or animate object sexual penetration as defined in § 18.2-67.2, robbery, carjacking, burglary, malicious wounding as defined in § 18.2-51, malicious bodily injury to a law-enforcement officer as defined in § 18.2-51.1, aggravated malicious wounding as defined in § 18.2-51.2, malicious wounding by mob as defined in § 18.2-41 or abduction.” Va. Code Ann. § 18.2-53.1. 11 one element of a VICAR-assault-with-a-dangerous-weapon offense is that the defendant
committed the enumerated federal offense, “assault with a dangerous weapon.” Id. at 397.
That suggests that we are not limited to considering whether the charged state-law predicate
offenses are categorically crimes of violence independent of VICAR. 7 And the
government explains that doing so permits us to consider an easier question: whether the
assault-with-a-dangerous-weapon element satisfies § 924(c)’s force clause. See United
States v. Bryant, 949 F.3d 168, 182 (4th Cir. 2020) (explaining for a different statute that
“assault requires at least some use or threatened use of force” and the “use of a dangerous
weapon to put the victim’s life in jeopardy transforms the force into violent physical force”
that satisfies § 924(c)’s force clause); see also Manners v. United States, 947 F.3d 377, 382
(6th Cir. 2020) (following this approach and holding that a § 1959(a)(3) VICAR conviction
is a crime of violence under § 924(c)’s force clause).
Based on our cursory glance at these competing approaches, we find that Thomas
has stated a plausible claim for relief that warrants further exploration by the district court.
See In re Irby, 858 F.3d at 233; In re Hubbard, 825 F.3d at 229.
* * *
Thomas has satisfied the requirements for authorization to file a second or
successive § 2255 application. Davis applies retroactively to cases on collateral review,
7 In Mathis, neither party questioned the propriety of looking through the VICAR offense to the charged state-law predicates to conduct the crime-of-violence analysis, nor did we hold that we must ignore VICAR’s “assault” element. 12 and Thomas has made a plausible claim that Davis’s new rule requires a different outcome
in his case. His motion is therefore
GRANTED.
13 WILKINSON, Circuit Judge, concurring:
I am happy to concur in the majority opinion in this case. I do so for two reasons.
I.
The first concerns the need for pre-filing authority to file a successive habeas corpus
petition. See 28 U.S.C. § 2255(h). Congress did not enact AEDPA’s pre-filing requirement
on a whim. It was a gateway decidedly not designed for universal collateral admissions.
See Felker v. Turpin, 518 U.S. 651, 664 (1996) (recognizing that AEDPA’s pre-filing
authorization requirement “further restricts the availability of relief to habeas petitioners”).
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. See Maj. Op., ante at 10 (citing In re Vassell, 751 F.3d 267 (4th Cir. 2014); In re
Phillips, 879 F.3d 542 (4th Cir. 2018)). These examples are buttressed by the requirement
that petitioner show a plausibly meritorious claim. As the opinion notes, the standard at
this stage is whether the movant “states a ‘plausible claim for relief.’” Maj. Op, ante at 9
(quoting In re Irby, 858 F.3d 231, 233 (4th Cir. 2017) (internal quotation marks and citation
omitted)). This makes good on the statement in Vassell that we are not required to engage
in “an exercise in futility.” 751 F.3d at 271.
Our criminal justice system faces a burgeoning tension between prospectivity and
retroactivity. A romance with retroactivity not only threatens justice through staleness. It
risks a consequential misallocation of limited resources. Serious crimes are occurring as
we speak. Prosecutors should not be so consumed with past convictions that they are
14 hampered in the ability to prosecute present crimes. Public defenders should not be
stretched so thin that they cannot afford defendants the robust defense they deserve at the
time it will do the most good.
The budding romance with retroactivity does have its downside. Every crime is
committed at some point (or over some span) of time. And as the Ex Post Facto Clause
instructs, see U.S. Const. art. I, § 9, it is often not only right but required to apply law as it
exists at that finite point. Of course, law changes in all directions over time. But it imposes
a Promethean task on criminal justice to revisit cases repeatedly in order to keep them
“current.” And to revisit some cases but not others and to correct some alleged errors but
not others will create a whole new perception of unfairness. The entire enterprise shall
soon enough outstrip our best intentions; we shall be chasing our tails. As Professor Paul
Bator famously said, “There comes a point where a procedural system which leaves matters
perpetually open no longer reflects humane concern but merely anxiety and a desire for
immobility.” Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for
State Prisoners, 76 Harv. L. Rev. 441, 452–53 (1963). Such a fate has already befallen
some criminal justice systems, including, for example, those of India and Brazil. See
United States v. Hawkins, 724 F.3d 915, 918 (7th Cir. 2013) (Posner, J.).
From the inmate’s point of view, the retroactive perspective also carries risks if
permitted to compromise the spirit of redemption. This is true both in prison and beyond.
I do not underestimate for one moment the pitfalls and obstacles that await prisoners upon
release. Nor do I discount the instances where some serious injustice has been done. But
every person has the potential to make a positive difference to his or her community going
15 forward if, that is, the prospective perspective is not overcome by bitterness and resentment
at the past.
Lives are irreparably damaged by unduly harsh sentences. Lives are also irreparably
scarred by the commission of serious crimes. The First Step Act, Pub. L. No. 115-391, 132
Stat. 5194 (2018), represents a laudable effort on the part of Congress to redress the ills of
excessive incarceration. But AEDPA is a very different sort of statute, designed in the
main to respect the finality of pleas, verdicts, sentencings, and judgments. Unraveling
either Congressional effort is not a judicially sober action, and I do not understand the
majority opinion to do so.
II.
I likewise commend the majority’s approach to Thomas’s 18 U.S.C. § 924(c)
conviction. It holds open the possibility that, “to convict a defendant of VICAR assault
with a dangerous weapon,” we need only decide whether the crucial “assault with a
dangerous weapon” element satisfies § 924(c)’s force clause. Maj. Op., ante at 11–12
(citing United States v. Keene, 955 F.3d 391, 397–99 (4th Cir. 2020)). That is a far simpler
and more straight-forward approach than looking through the VICAR elements to
determine whether the underlying state predicates qualify. Conducting the perennially
quarrelsome exercise of deciding whether there is a categorical match between the state
predicate crime and the generic definition of a VICAR offense is neither legally necessary
nor economically desirable. Agreeing with the majority’s commonsensical allusion to
simplicity, see Maj. Op., ante at 11–12, I likewise concur in its opinion.