Morrow v. United States

Background

After a jury trial, Neb Morrow was convicted of conspiracy to commit Hobbs Act robbery and using a firearm during that conspiracy. He received a total sentence of 147 months: 63 months for the conspiracy conviction and a mandatory consecutive 84 months for the firearm conviction.

Morrow previously appealed his conviction and later filed a first motion under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence. The court denied his first motion, including his argument that the case was tried in the wrong federal district. The Second Circuit had also rejected that venue argument on direct appeal.

The Second Circuit later authorized Morrow to file a second or successive § 2255 motion. That authorization meant only that he had made an initial showing that at least one claim might satisfy the statutory requirements. The district court was still required to decide whether each ground actually met those requirements.

Ground One: Firearm conviction

Morrow argued that his firearm conviction could not stand after the Supreme Court’s decision in United States v. Davis. Davis held that the residual clause of 18 U.S.C. § 924(c), which defines some offenses as crimes of violence, was unconstitutionally vague. Morrow’s firearm conviction was based on conspiracy to commit Hobbs Act robbery, rather than on a completed Hobbs Act robbery.

The court stated that Morrow appeared correct. It concluded that Davis was a new constitutional rule that applied to Morrow’s collateral challenge and that the conspiracy conviction could not serve as the predicate offense for the firearm charge under the residual clause. The court therefore found that Ground One met the threshold requirements for a second or successive § 2255 motion. It did not vacate the firearm conviction in this order; instead, it directed the Government to respond to that ground within 30 days.

Ground Two: Venue

Morrow renewed his argument that venue was improper because the indictment did not adequately allege criminal conduct in the Southern District of New York. The court held that the argument had already been raised on direct appeal and in Morrow’s first § 2255 motion, and that this history independently supported denial of the new ground.

Morrow relied on the Supreme Court’s decision in United States v. Taylor. The court explained that Taylor concerned attempted Hobbs Act robbery, while Morrow was convicted of conspiracy and his firearm charge was not based on attempted Hobbs Act robbery. The court therefore found that Taylor did not apply and that Morrow had not identified newly discovered evidence or a new constitutional rule sufficient to satisfy § 2255(h). The court denied the Motion as to Ground Two and denied a certificate of appealability on that issue.

Disposition

Ground One meets the threshold requirements, and the Government must answer it within 30 days. Ground Two fails those requirements, the Motion is denied as to that ground, and no certificate of appealability will issue for it. Judge Victor Marrero entered the order.