Matthew McDonald v. United States of America

2021 DNH 018

• Court: District Court, D. New Hampshire
• Decided: January 25, 2021
• Docket: 17-cv-329-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Matthew McDonald

v. Case No. 17-cv-329-SM Opinion No. 2021 DNH 018 United States of America

ORDER

The issue remaining in this habeas case is whether

petitioner’s two convictions for using or carrying a firearm in

connection with a crime of violence (18 U.S.C. § 924(c)) should

be vacated, given the Supreme Court’s holding in United States

v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (2019), invalidating the

“residual clause” in Section 924(c). The Davis holding is

retroactive. United States v. Bowen, 936 F.3d 1091, 1098 (10th

Cir. 2019).

Petitioner asserts that his Section 924(c) convictions

might have been predicated on his convictions for conspiracy to

commit robbery (Counts 4 and 9 of the Indictment). Because

conspiracy does not qualify as a “crime of violence,” under the

“force” clause of Section 924(c), and the residual clause (that

might have covered it) is invalid, he moves to vacate the

1 Section 924(c) convictions. Brown v. United States, 924 F.3d

1069, 1075-76 (11th Cir. 2019).

But, petitioner was also convicted of two substantive Hobbs

Act robbery offenses (Counts 5 and 10), which do qualify as

predicate crimes of violence under Section 924(c). The

indictment referred to both the conspiracy to commit robbery,

and the substantive robbery counts, as potential predicates, as

did the jury instructions. Petitioner’s position is fairly

stated as: If the Section 924(c) convictions rested on the

conspiracy counts, and not on the substantive robbery counts,

then those convictions must be vacated and, since that cannot be

known, it must be presumed to be so.

This issue has been raised a number of times since the

Davis opinion. Generally, “when the valid and invalid predicate

offenses are coextensive, a reasonable probability does not

exist that the jury convicted based only on the invalid

offense.” Durfee v. United States, 2020 WL 1942324, at * 4

(D.N.H. April 20, 2020) citing cases. In such a case, the jury

instructions referencing the invalid predicate offense, while

erroneous, are harmless.

2 That is precisely the situation here. The conspiracy

counts related to the same robberies charged in the substantive

counts, and the jury convicted petitioner of both the conspiracy

and substantive robbery offenses. “It does not make sense that

the jury could find the petitioner used a firearm in the

conspiracy but not the robbery.” Id., citing Johnson v. United

States, 2019 WL 1790218, at * 6 (C.D. Calif. April 23, 2019).

“Further, strong evidence of the petitioner’s involvement in the

robbery itself supports a conclusion that the Hobbs Act robbery

was [a] predicate offense found by the jury.” Id.

Conclusion

The jury instructions given with respect to the Section

924(c) counts, while retroactively rendered erroneous by the

Davis decision, were nevertheless harmless, given that the

conspiracy to rob and the substantive robbery counts (the

potential predicates) were factually and pragmatically

coextensive. The robbery offenses qualified as “crimes of

violence” predicates, and the jury’s verdict on the Section

924(c) counts remain valid.

Judgment shall enter in accordance with this order.

3 Certificate

As petitioner has not made a substantial showing of the

denial of a constitutional right (28 U.S.C. § 2253(c)(2)) with

respect to the validity of his two Section 924(c) convictions,

the court declines to issue a certificate of appealability.

Petitioner is, however, free to seek such a certificate from the

United States Court of Appeals, located in Boston,

Massachusetts. Rule 11, Rules Governing Section 2255

Proceedings.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 25, 2021

cc: Donald A. Kennedy, Esq. Seth R. Aframe, AUSA U.S. Probation U.S. Marshal