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Fourth Circuit Finally Holds Davis Retroactive

In a case that numerous federal habeas petitioners have been awaiting, the U.S. Court of Appeals for the Fourth Circuit held on February 23, 2021, that the decision in United States v. Davis, 139 S. Ct. 2319 (2019), is a qualifying retroactive U.S. Supreme Court decision for habeas corpus purposes. The Court also took a moment to explain the step-by-step process of applying a Supreme Court decision retroactively on habeas review, which also applies in federal habeas cases filed by state prisoners.

As with most prisoners who were sentenced over a decade ago, Dearnta Thomas had long ago used up his one good shot at habeas relief in federal court. That is, Thomas filed a motion to vacate his federal criminal judgment by way of 28 U.S.C. § 2255, and the Antiterrorism and Effective Death Penalty Act (“AEDPA”) barred him from filing another one, absent some special conditions. One of those conditions is when a new Supreme Court decision announces a new constitutional rule retroactive on collateral review. That was the avenue Thomas chose in his application to the Fourth Circuit for authorization to file another § 2255 motion based on Davis in the U.S. District Court for the Eastern District of Virginia.

In Davis, the Supreme Court declared the so-called “residual clause” of 18 U.S.C. § 924(c) unconstitutional, which left some prisoners serving an unconstitutional conviction and sentence. The residual clause allowed a judge to determine whether a predicate offense for § 924(c) had a “substantial risk” of injury, which the Supreme Court said was too vague to pass constitutional muster. Thomas argued that the predicate convictions the district court relied on as the basis for the § 924(c) conviction, possession of a firearm during a crime of violence, does not fit under the remaining “force clause” and could have only fit under the residual clause when he was sentenced. The force clause says that the predicate offense must have, as an element, the use or threatened use of force against someone.

Thomas argued that his predicate offenses didn’t have force as an element. Without reaching the merits of his claim, the Fourth Circuit explained the AEDPA hoops Thomas had to jump through to get authorization to even have his claim heard.

First, Thomas had to file his application in the Fourth Circuit on time. Under § 2255(f)(3), which applies to second or successive (“SOS”) § 2255 motions and applications, Thomas had one year from the Davis decision to file his application. Having done so within several weeks of Davis, the Court found he timely filed his application.

Thomas then had to make a prima facie showing that his application satisfied the requirements to file a SOS motion. Thomas overcame this hurdle by establishing that (1) his claim relied on a new and retroactive Supreme Court decision of constitutional law and (2) that his claim was at least “plausible,” thereby establishing “a sufficient showing of possible merit to warrant a fuller exploration by the district court.” In re Irby, 858 F.3d 231 (4th Cir. 2017).

Retroactivity of the Supreme Court Decision

The Court explained each step of the retroactivity analysis for Thomas’ Davis claim. Under § 2255(h)(2), Davis is retroactive because it announced a new rule of constitutional law that was made retroactive by the Supreme Court itself, and it was previously unavailable to Thomas. Davis was a new rule, the Court said, because its “result was not dictated by precedent existing at the time [his] conviction became final” on appeal. A rule is dictated by precedent if it was “apparent to all reasonable jurists,” and even the extension of an old rule can still be new if it applies that old rule “in a novel setting,” the Court explained, citing numerous Supreme Court cases on the issue. Davis did this by applying Johnson v. United States, 135 S. Ct. 2551 (2015), declaring the residual clause of another firearm statute unconstitutional, to the residual clause of the firearm statute at issue in Thomas’ case.

Davis was a new substantive rule that applied retroactively, the Court said, which is defined as a rule that would “narrow the scope of a criminal statute by interpreting its terms” and therefore “alters the range of conduct or class of persons that the law punishes.” Welch v. United States, 136 S. Ct. 1257 (2016). Davis rendered a conviction under § 924(c)’s residual clause unconstitutional, narrowing the scope of who could be convicted under the statute, according to the Court.

And Davis was made retroactive by the Supreme Court. While the Supreme Court itself did not expressly declare that Davis is retroactive, because it rarely says when its decision is retroactive, the Supreme Court has provided some guidance for lower courts on when it had “made” its decision retroactive without saying so. In Tyler v. Cain, 533 U.S. 656 (2001), Justice O’Connor provided the following scenario to illustrate retroactivity: the Court held in Case One that a type of rule applies retroactively on habeas, and then in Case Two, the Court announces the type of rule described in Case One – “we can be said to have ‘made’ the given rule [in Case Two] retroactive.”

That’s what happened with Davis, the Fourth Circuit said. The Supreme Court has held that new substantive rules of constitutional law always apply retroactively. Davis was a substantive constitutional decision. O’Connor’s reasoning made Davis retroactive by the Supreme Court, the Fourth Circuit concluded.

Plausible Claim for Relief

Filing on time and proving Davis is retroactive on collateral review by the Supreme Court wasn’t enough to get authorization for a SOS motion under § 2255(h)(2), the Court noted. Thomas also had to show that he had a “plausible” claim for relief. Though this is not an analysis to see if Thomas would have prevailed on his claim, the Court stated, “We need not blind ourselves to reality.” A claim would not be plausible, the Court said, if it would clearly fail, such as a claim that was untimely filed. The Court observed that authorizing such claims would be an “exercise in futility.” But taking a “cursory glance at the merits,” the Court determined that Thomas stated a plausible claim for relief.

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Related legal case

United States v. Davis

 

 

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