Morrison v. United States

Background

Robert Morrison pleaded guilty on January 4, 2010, to conspiracy to distribute and possess narcotics with intent to distribute, and to using, carrying, possessing, and discharging a firearm during and in relation to an attempted Hobbs Act robbery. Judge Jones sentenced him on January 12, 2012, to 192 months in prison followed by four years of supervised release. The judgment was entered on February 1, 2012, and Morrison did not appeal.

Morrison filed a motion under 28 U.S.C. § 2255, which allows a federal prisoner to challenge a sentence. He alleged that his lawyer was ineffective because the lawyer allowed him to plead guilty even though Morrison had not been separately convicted of the underlying crime of violence, failed to obtain a five-year rather than a ten-year firearm penalty, and failed to ensure that the government proved the Hobbs Act robbery affected interstate commerce. Morrison also argued that he would have gone to trial if he had known the interstate-commerce element had not been established.

In 2016, with help from a lawyer, Morrison sought to add a claim based on Johnson v. United States. The court allowed him to amend, but no additional briefing was filed. Morrison argued that attempted Hobbs Act robbery no longer qualified as a crime of violence for purposes of his firearm conviction.

Timeliness of the ineffective-assistance claims

The court held that Morrison’s ineffective-assistance claims were filed outside § 2255’s one-year limitation period. Because he did not appeal, his conviction became final on February 15, 2012. His motion was received on February 22, 2013.

Morrison argued that he tried to mail the motion on February 15 but lacked enough postage. He obtained postage and mailed documents on February 19 and 20, but the copies sent to the court and the government were mixed up. The court found that Morrison had acted diligently, but held that his difficulty obtaining postage was not an extraordinary circumstance that justified equitable tolling, an exception that can extend a filing deadline. The court therefore held that the ineffective-assistance claims were time-barred.

Merits of the ineffective-assistance claims

The court also ruled that the ineffective-assistance claims would fail even if they had been timely. Under the constitutional test for ineffective assistance, a defendant must show both unreasonable attorney performance and a reasonable probability that the result would have been different. In a guilty-plea case, the defendant must show a reasonable probability that, without the lawyer’s errors, he would have rejected the plea and gone to trial.

The court found that Morrison had not shown this prejudice. It noted that Morrison had not identified a viable trial defense or evidence that he could have avoided conviction at trial. The court also relied on his sworn account of assisting in an attempted robbery and discharging a firearm, the longer sentences received by co-defendants who went to trial, and the benefits Morrison received from his plea, including a lower sentencing-guidelines range and dismissal of some charges. The court concluded that rejecting the plea would not have been rational under the circumstances.

Johnson and Davis claims

The court held that Johnson did not entitle Morrison to relief. Johnson invalidated the residual clause of the Armed Career Criminal Act, not the statutory provision under which Morrison’s firearm conviction was imposed. The court also noted that the Supreme Court later invalidated the residual clause of the firearm statute in Davis, but concluded that attempted Hobbs Act robbery qualified as a crime of violence under that statute’s force clause. The court therefore concluded that neither Johnson nor Davis supported vacating Morrison’s conviction or sentence.

Disposition

The court denied Morrison’s § 2255 motion. It directed the clerk to mark the action closed and denied all pending motions as moot. The opinion does not state that the denial was with or without prejudice.