Parkes v. United States

Background

Otis Parkes, representing himself, filed a later motion under 28 U.S.C. § 2255 challenging Count Three of his federal conviction. In 2003, Parkes agreed with Duane Beaty and Steven Young to rob a marijuana dealer. While searching the apartment, Young shot and killed the dealer. Parkes was convicted on five counts, including conspiracy to commit Hobbs Act robbery, attempted Hobbs Act robbery, two firearm counts, and possessing a firearm after a felony conviction.

Count Three charged using, carrying, and possessing a firearm during and in relation to a crime of violence. The jury instructions allowed the jury to use either the Hobbs Act robbery conspiracy in Count One or the attempted Hobbs Act robbery in Count Two as the underlying crime of violence. The verdict did not identify which offense supported Count Three. Count Four, another firearm conviction, was based only on the conspiracy count and had already been vacated in an earlier ruling.

Earlier Proceedings and the Second Circuit’s Remand

The Supreme Court held in United States v. Davis that the firearm statute’s residual clause—the provision asking whether an offense involves a substantial risk that physical force will be used—is unconstitutionally vague. In United States v. Taylor, the Supreme Court later held that attempted Hobbs Act robbery is not a crime of violence under the statute’s elements clause, which asks whether using or threatening physical force is an element of the offense.

The Second Circuit authorized Parkes to file this later motion and remanded the matter for this court to decide whether Davis and Taylor applied retroactively and whether Count Three was supported by a valid crime-of-violence predicate. The government agreed that both decisions applied retroactively and that the two possible predicates for Count Three were the conspiracy and attempted-robbery counts. It nevertheless argued that Parkes had not satisfied the legal requirements for a later § 2255 motion.

Gatekeeping Requirement

The court rejected the government’s threshold argument. It held that the argument was barred by the law-of-the-case doctrine because the court had previously addressed Parkes’s Count Three challenge on the merits instead of dismissing it for failure to satisfy the requirements for a later motion.

The court also held that Parkes satisfied the statutory requirement independently. The sentencing record did not show whether Count Three rested on the elements clause or the residual clause. The jury instructions did not require the substantial step for attempted Hobbs Act robbery to involve actual or threatened force, and the instructions defined robbery broadly enough to include fear of future economic loss. The court therefore concluded that the record did not establish that the elements clause supported the conviction.

Because the record and the legal background at the time of sentencing were inconclusive, the court adopted the standard used by most district courts in the circuit: a later movant may proceed by showing that the conviction may have relied on the unconstitutional residual clause. The court held that Parkes met that standard. The government conceded that the Hobbs Act robbery conspiracy qualified as a crime of violence only under the residual clause. The court also found that, even if attempted Hobbs Act robbery was the predicate, Count Three may have relied on the residual clause rather than the elements clause.

Merits

The parties agreed that Davis and Taylor applied retroactively and together invalidated both potential predicates for Count Three as crimes of violence under 18 U.S.C. § 924(c). Because neither the Hobbs Act robbery conspiracy nor attempted Hobbs Act robbery could validly support the firearm conviction, the court granted Parkes’s motion to vacate Count Three.

Resentencing and Disposition

The court determined that a new sentencing hearing was not required. It explained that the sentences on the remaining counts had already reached the statutory maximums and ran concurrently, making a new sentencing hearing merely administrative. The court will enter an amended judgment reflecting the vacatur of Counts Three and Four and reimposing Parkes’s sentence on Counts One, Two, and Five.

The court granted Parkes’s motion to vacate Count Three. It denied a certificate of appealability and certified that any appeal would not be taken in good faith under 28 U.S.C. § 1915(a)(3).