NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-17202
Plaintiff-Appellee, D.C. Nos. 2:16-cv-02204-RCJ 2:08-cr-00283-RCJ- v. PAL-5
JACOREY TAYLOR, AKA Mo-B, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding
Submitted April 17, 2023** San Francisco, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON,*** District Judge.
Jacorey Taylor seeks review of the district court’s denial of his petition to
vacate his sentence under 28 U.S.C. § 2255. In 2013, a jury found Taylor guilty of
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. both murder and using a firearm in the commission of a crime of violence under 18
U.S.C. § 924(c)(3), but the jury did not clarify whether the verdict was for first- or
second-degree murder. Taylor moved to vacate his § 924(c)(3) conviction and
sentence under Johnson v. United States, 576 U.S. 591 (2015), arguing that the
subpart of § 924(c)(3) under which he was convicted was void for vagueness. 1 The
district court denied his Johnson claim, holding that it was procedurally defaulted.
We have jurisdiction under 28 U.S.C. § 2253 and affirm.
“We review de novo a district court’s denial of relief to a federal prisoner
under 28 U.S.C. § 2255” and apply de novo review as to whether there has been a
procedural default. United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en
banc); United States v. Ratigan, 351 F.3d 957, 961 (9th Cir. 2003). “A § 2255
movant procedurally defaults his claims by not raising them on direct appeal and not
showing cause and prejudice or actual innocence in response to the default.”
Ratigan, 351 F.3d at 962 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
We apply the categorical approach to determine whether an offense is a crime
of violence, analyzing “whether the elements of the statute of conviction meet the
federal standard.” Borden v. United States, 141 S. Ct. 1817, 1822 (2021). Under the
categorical approach, “the facts of a given case are irrelevant.” Id. A crime of
1 Johnson was a precursor to United States v. Davis, 139 S. Ct. 2319, 2323–27 (2019), which held that § 924(c)(3)(B) was void for vagueness. Any § 924(c)(3) conviction must now stand under § 924(c)(3)(A).
2 violence requires a mens rea more culpable than ordinary recklessness and must have
“as an element the use, attempted use, or threatened use of physical force against the
person or property of another.” Id. at 1821–22, 1825; § 924(c)(3)(A). “If any—even
the least culpable—of the acts criminalized do not entail that kind of [physical] force,
the statute of conviction does not categorically match the federal standard, and so
cannot serve as” a predicate offense per § 924(c)(3)(A). Borden, 141 S. Ct. at 1822.
Taylor argues that his § 924(c)(3) conviction must be vacated because Nevada
second-degree murder lacks the heightened mens rea and direct physical force
requirements for a crime of violence under § 924(c)(3)(A). He contends that he has
shown prejudice to excuse his procedural default. 2 We disagree.
1. The mens rea required for Nevada second-degree murder meets the
federal standard for a crime of violence. Under Nevada law, “[m]urder is the
unlawful killing of a human being with malice aforethought, either express or
implied.” N.R.S. § 200.010(1) (cleaned up). “Malice shall be implied when no
considerable provocation appears, or when all the circumstances of the killing show
an abandoned and malignant heart.” Id. § 200.020(2). “Depraved heart” and
“‘abandoned and malignant heart’ both refer to the same ‘essential concept . . . one
of extreme recklessness regarding homicidal risk.’” Collman v. State, 7 P.3d 426,
2 The Government does not argue that Taylor has not shown cause for his procedural default.
3 442, 445 n.13 (Nev. 2000) (alteration in original) (citations omitted). Indeed, to
convict Taylor of murder under Nevada law, the trial judge instructed that the jury
must find that Taylor acted with malice aforethought, explaining:
The condition of mind described as malice aforethought may arise, not alone from anger, hatred, revenge or from particular ill will, spite or grudge toward the person killed, but may also result from any unjustifiable or unlawful motive or purpose to injure another, which proceeds from a heart fatally bent on mischief, or with reckless disregard of consequences and social duty.
Taylor argues that McCurdy v. State, 809 P.2d 1265 (Nev. 1991) shows that
Nevada’s second-degree “implied malice” murder does not require a defendant act
with heightened recklessness or direct physical force at his victim. In that case,
defendant Enoch McCurdy, a gang member, “approached the victim and his friends
in order to stir up trouble. . . . During the [ensuing] turmoil, McCurdy handed [co-
defendant] Warren [a] loaded and cocked gun.” McCurdy, 809 P.2d at 1266. Warren
then used the gun to shoot and kill an opposing gang member. Id. The Nevada
Supreme Court upheld McCurdy’s conviction, reasoning that “[t]he jury could have
properly concluded that, from McCurdy’s perspective, it should have been clear that
handing the gun to Warren under these circumstances was malignantly reckless and
that death or serious injury was likely to result.” Id. at 1266–67. This reasoning
contradicts Taylor’s argument.
We have already determined that such malignant recklessness meets the mens
rea criterion for a crime of violence. Offenses charged as murder “necessarily require
4 a mental state of malice aforethought, which, as we have explained, involves ‘an
intentional act that ha[s] a high probability of resulting in death.’” United States v.
Begay, 33 F.4th 1081, 1091, 1095 (9th Cir. 2022) (alteration in original) (quoting
Pollard v. White, 119 F.3d 1430, 1434 (9th Cir. 1997)) (finding federal second-
degree murder committed with “depraved heart (i.e., reckless indifference)” is a
crime of violence).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 10 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-17202
Plaintiff-Appellee, D.C. Nos. 2:16-cv-02204-RCJ 2:08-cr-00283-RCJ- v. PAL-5
JACOREY TAYLOR, AKA Mo-B, MEMORANDUM* Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding
Submitted April 17, 2023** San Francisco, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON,*** District Judge.
Jacorey Taylor seeks review of the district court’s denial of his petition to
vacate his sentence under 28 U.S.C. § 2255. In 2013, a jury found Taylor guilty of
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. both murder and using a firearm in the commission of a crime of violence under 18
U.S.C. § 924(c)(3), but the jury did not clarify whether the verdict was for first- or
second-degree murder. Taylor moved to vacate his § 924(c)(3) conviction and
sentence under Johnson v. United States, 576 U.S. 591 (2015), arguing that the
subpart of § 924(c)(3) under which he was convicted was void for vagueness. 1 The
district court denied his Johnson claim, holding that it was procedurally defaulted.
We have jurisdiction under 28 U.S.C. § 2253 and affirm.
“We review de novo a district court’s denial of relief to a federal prisoner
under 28 U.S.C. § 2255” and apply de novo review as to whether there has been a
procedural default. United States v. Swisher, 811 F.3d 299, 306 (9th Cir. 2016) (en
banc); United States v. Ratigan, 351 F.3d 957, 961 (9th Cir. 2003). “A § 2255
movant procedurally defaults his claims by not raising them on direct appeal and not
showing cause and prejudice or actual innocence in response to the default.”
Ratigan, 351 F.3d at 962 (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).
We apply the categorical approach to determine whether an offense is a crime
of violence, analyzing “whether the elements of the statute of conviction meet the
federal standard.” Borden v. United States, 141 S. Ct. 1817, 1822 (2021). Under the
categorical approach, “the facts of a given case are irrelevant.” Id. A crime of
1 Johnson was a precursor to United States v. Davis, 139 S. Ct. 2319, 2323–27 (2019), which held that § 924(c)(3)(B) was void for vagueness. Any § 924(c)(3) conviction must now stand under § 924(c)(3)(A).
2 violence requires a mens rea more culpable than ordinary recklessness and must have
“as an element the use, attempted use, or threatened use of physical force against the
person or property of another.” Id. at 1821–22, 1825; § 924(c)(3)(A). “If any—even
the least culpable—of the acts criminalized do not entail that kind of [physical] force,
the statute of conviction does not categorically match the federal standard, and so
cannot serve as” a predicate offense per § 924(c)(3)(A). Borden, 141 S. Ct. at 1822.
Taylor argues that his § 924(c)(3) conviction must be vacated because Nevada
second-degree murder lacks the heightened mens rea and direct physical force
requirements for a crime of violence under § 924(c)(3)(A). He contends that he has
shown prejudice to excuse his procedural default. 2 We disagree.
1. The mens rea required for Nevada second-degree murder meets the
federal standard for a crime of violence. Under Nevada law, “[m]urder is the
unlawful killing of a human being with malice aforethought, either express or
implied.” N.R.S. § 200.010(1) (cleaned up). “Malice shall be implied when no
considerable provocation appears, or when all the circumstances of the killing show
an abandoned and malignant heart.” Id. § 200.020(2). “Depraved heart” and
“‘abandoned and malignant heart’ both refer to the same ‘essential concept . . . one
of extreme recklessness regarding homicidal risk.’” Collman v. State, 7 P.3d 426,
2 The Government does not argue that Taylor has not shown cause for his procedural default.
3 442, 445 n.13 (Nev. 2000) (alteration in original) (citations omitted). Indeed, to
convict Taylor of murder under Nevada law, the trial judge instructed that the jury
must find that Taylor acted with malice aforethought, explaining:
The condition of mind described as malice aforethought may arise, not alone from anger, hatred, revenge or from particular ill will, spite or grudge toward the person killed, but may also result from any unjustifiable or unlawful motive or purpose to injure another, which proceeds from a heart fatally bent on mischief, or with reckless disregard of consequences and social duty.
Taylor argues that McCurdy v. State, 809 P.2d 1265 (Nev. 1991) shows that
Nevada’s second-degree “implied malice” murder does not require a defendant act
with heightened recklessness or direct physical force at his victim. In that case,
defendant Enoch McCurdy, a gang member, “approached the victim and his friends
in order to stir up trouble. . . . During the [ensuing] turmoil, McCurdy handed [co-
defendant] Warren [a] loaded and cocked gun.” McCurdy, 809 P.2d at 1266. Warren
then used the gun to shoot and kill an opposing gang member. Id. The Nevada
Supreme Court upheld McCurdy’s conviction, reasoning that “[t]he jury could have
properly concluded that, from McCurdy’s perspective, it should have been clear that
handing the gun to Warren under these circumstances was malignantly reckless and
that death or serious injury was likely to result.” Id. at 1266–67. This reasoning
contradicts Taylor’s argument.
We have already determined that such malignant recklessness meets the mens
rea criterion for a crime of violence. Offenses charged as murder “necessarily require
4 a mental state of malice aforethought, which, as we have explained, involves ‘an
intentional act that ha[s] a high probability of resulting in death.’” United States v.
Begay, 33 F.4th 1081, 1091, 1095 (9th Cir. 2022) (alteration in original) (quoting
Pollard v. White, 119 F.3d 1430, 1434 (9th Cir. 1997)) (finding federal second-
degree murder committed with “depraved heart (i.e., reckless indifference)” is a
crime of violence). Specifically, “the killing of another human being with malice
aforethought requires finding that the defendant acted with extreme indifference, and
that the indifference was toward human life. The elements of second-degree murder
stand in stark contrast to the elements of offenses that do not require a showing of
malice aforethought.” Id. at 1094–95 (emphasis original).
Like federal second-degree murder, Nevada second-degree murder requires a
defendant act with at least reckless or extreme indifference toward human life. And
even though the inquiry for a crime of violence is categorical, the jury instructions
in Taylor’s case affirm that he would not have been convicted absent a finding that
he acted with at least reckless indifference.
2. Because Nevada second-degree murder requires a mens rea of at least
extreme recklessness, it necessarily requires actual or threatened use of targeted
physical force. “[A]s the First Circuit observed, a defendant who acts with extreme
indifference to the value of human life can ‘fairly be said to have actively employed
force (i.e., “use[d]” force) “against the person of another.”’” Id. at 1095 (alterations
5 in original) (quoting United States v. Báez-Martínez, 950 F.3d 119, 127 (1st Cir.
2020)). Because Taylor’s Johnson claim has no merit, he suffers no prejudice from
his procedural default.
AFFIRMED.