Johnson v. United States

Background

John Johnson sought relief under 28 U.S.C. § 2255, a federal procedure allowing a person in federal custody to ask a court to vacate, set aside, or correct a conviction or sentence. He challenged his conviction on Count Three, which charged using a firearm during and in relation to a crime of violence that caused a person’s death, under 18 U.S.C. §§ 924(j) and 2.

The underlying case involved an armed robbery of drug dealers on December 1, 2007. The opinion states that Johnson shot and killed one robbery victim. A jury convicted Johnson of conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, and the firearm offense. The court sentenced him to 20 years on each of the first two counts and 40 years on Count Three, with the sentences running concurrently. The Court of Appeals later affirmed the conviction and sentence. The district court denied Johnson’s first sentence-review petition in 2018.

Johnson later received permission from the Court of Appeals to file this successive petition, meaning a later petition challenging the same conviction or sentence. The court appointed counsel to represent him. Johnson argued that Count Three was invalid under United States v. Davis and United States v. Taylor because conspiracy and attempted Hobbs Act robbery were not valid qualifying violent crimes.

Legal framework

Section 924(c), which is incorporated into the offense charged under § 924(j), defines a “crime of violence” in two ways. The Elements Clause covers an offense that includes the use, attempted use, or threatened use of physical force against a person or property. The Residual Clause covered an offense that, by its nature, involved a substantial risk that physical force might be used.

In Davis, the Supreme Court held that the Residual Clause was unconstitutionally vague. The opinion states that the Second Circuit had held that conspiracy to commit Hobbs Act robbery was not a crime of violence under the Elements Clause. In Taylor, the Supreme Court held that attempted Hobbs Act robbery did not qualify as a predicate crime of violence for § 924(j). The court explained, however, that Second Circuit precedent treated Taylor as not announcing a new rule of constitutional law, so Taylor could not by itself support Johnson’s successive petition.

Davis did announce a new constitutional rule. But the court explained that Johnson could rely on Davis only if he had been sentenced in violation of that rule. The court therefore examined the trial record to determine whether the jury relied on the unconstitutional Residual Clause or instead on the Elements Clause.

Court’s analysis

The court concluded that the trial record showed that attempted Hobbs Act robbery was treated as a crime of violence under the Elements Clause. The jury instructions required proof that the defendants attempted to obtain property against the victim’s will by actual or threatened force, violence, or fear of injury. The court also emphasized during the instructions that the jury had to find the use or threatened use of force or violence.

The court found no comparable instruction suggesting that attempted Hobbs Act robbery qualified merely because it involved a substantial risk of force. It therefore concluded that actual or threatened physical force was a required element of the attempted-robbery predicate used for Count Three.

Johnson argued that the jury was not told which of the two possible predicates—conspiracy or attempted robbery—it relied on for Count Three. The court acknowledged that the Second Circuit had not specified the petitioner’s burden in that situation. It adopted the approach used by most other federal appellate courts: Johnson had to show that it was more likely than not that the conviction rested only on the unconstitutional Residual Clause.

The court held that Johnson did not make that showing. The jury was repeatedly told that it could base Count Three on the attempted-robbery predicate, which qualified under the Elements Clause. The government’s summation also expressly tied Count Three to the attempted-robbery theory. The court concluded that Johnson had not shown that his petition relied on a new constitutional rule in the required sense.

Disposition

The court DENIED Johnson’s successive sentence-review petition. It also stated that it would not issue a certificate of appealability because Johnson had not made a substantial showing that a constitutional right was denied. The court further certified that an appeal would not be taken in good faith, so Johnson could not proceed with an appeal without paying the required court fees. The Clerk was directed to terminate the identified pending motions and mail Johnson a copy of the order.

Classification basis

This is a substantive ruling because the court examined the trial record and decided whether Johnson’s firearm conviction rested on a valid crime-of-violence predicate under the Elements Clause.