Mizell v. United States

Background

Tevin Mizell pleaded guilty to racketeering conspiracy and to using, carrying, and discharging firearms in furtherance of the racketeering conspiracy and a narcotics conspiracy, in violation of 18 U.S.C. § 924(c). The court sentenced him to 30 months on the racketeering count and a mandatory consecutive 60 months on the firearm count, followed by supervised release and a mandatory special assessment.

The Supreme Court later held in United States v. Davis that the “residual clause” in the definition of a qualifying crime of violence under § 924(c) was unconstitutional. Mizell filed a petition under 28 U.S.C. § 2255 seeking to vacate his firearm conviction in light of Davis. The government argued that Mizell had procedurally defaulted the challenge by not raising it on direct appeal and that the conviction remained valid because the firearm charge was also based on a drug-trafficking conspiracy, which remained a valid predicate for § 924(c).

Ineffective Assistance of Counsel

Mizell argued that his appellate lawyer should have raised a constitutional challenge based on Johnson v. United States, an earlier Supreme Court decision involving a similar residual clause. The court rejected that argument. It explained that lawyers are not required to predict later changes in governing law and that, when Mizell appealed, controlling Second Circuit precedent distinguished the § 924(c) provision from the provision addressed in Johnson. The court therefore concluded that counsel’s failure to raise the argument was not constitutionally ineffective.

Actual Innocence and the Procedural Bar

Because the court rejected the ineffective-assistance argument, it considered whether Mizell could overcome the procedural bar by showing actual innocence. Actual innocence in this context means factual innocence, not merely that the law later made a conviction legally invalid. Mizell had to show that, considering all the evidence, it was more likely than not that no reasonable juror would have convicted him.

The court found that Mizell did not meet that standard. Although his plea allocution described the firearm predicate as the racketeering conspiracy, the indictment also charged the firearm count in connection with a narcotics conspiracy. The court relied on Mizell’s admissions that he participated in the activities of the MMG gang, knew that its members engaged in drug dealing, and possessed a firearm. It also considered the undisputed presentence report, which stated that Mizell helped found the organization, that the organization profited partly from controlled-substance sales, and that firearms were used in connection with its drug-distribution activities.

Disposition

The court held that Mizell had not established either ineffective assistance of appellate counsel or actual innocence sufficient to overcome the procedural default. It denied Mizell’s motion under 28 U.S.C. § 2255, directed the clerk to terminate the listed pending motions, and ordered the related civil case closed. Judge Richard J. Sullivan was a United States Circuit Judge sitting by designation.