Davis (2019), voiding the residual clause at § 924(c)(3)(B) for vagueness, is retroactively applicable to cases on collateral review

Benjamin Hall v. United States, 2d Cir. No. 17-1513 (Jan. 19, 2023), decides a question most of us thought had been answered already – that United States v. Davis, 139 S. Ct. 2319 (2019), striking the residual clause of § 924(c) as unconstitutionally vague, rendered a substantive rule retroactive to cases on collateral review. As Judge Carney’s opinion notes, the Supreme Court held in Welch v. United States, 578 U.S. 120 (2016), that Johnson v. United States, 576 U.S. 591 (2015), striking the residual clause of the ACCA as unconstitutionally vague, is retroactively applicable as a substantive rule. Op. 9. Johnson “changed the substantive reach” of the ACCA by voiding its residual clause, thus “altering the range of conduct or the class of persons that the [Act] punishes.” 578 U.S. at 129.

Johnson qualifies easily as a substantive rule, defined as one that “narrow[s] the scope of a criminal statute by interpreting its terms.” Schiro v. Summerlin, 542 U.S. 348, 351-52 (2004).  And, as Judge Carney says, “[t]he same logic inescapably applies to Davis.” Op. 10. Moreover, because the rule of Davis is also “new,” as it “broke new ground” and “resolved a circuit split regarding the residual clause’s constitutionality,” it is applicable to Hall’s § 2255 motion.

The Court thus vacated Hall’s § 924(c) conviction, based on a conspiracy to commit Hobbs Act robbery, which qualifies as a predicate “crime of violence” only under the kaput residual clause.

The Court rejected the Government’s alternative argument as well – that Hall’s § 924(c) conviction is fine because it is also predicated on attempted Hobbs Act robbery, in addition to conspiracy. This argument “is foreclosed by the Supreme Court’s recent decision in United States v. Taylor, 142 S. Ct. 2015, 2021 (2022), holding that attempted Hobbs Act robbery does not qualify as a ‘crime of violence’ under the elements clause found in section 924(c).” Op. 13. Thus, “even assuming arguendo that the section 924(c) offense charged in Count Five was also predicated on the attempted Hobbs Act robbery offense charged in Count Four, vacatur of Hall’s section 924(c) conviction is required because under Davis and Taylor neither Hobbs Act conspiracy nor attempted Hobbs Act robbery is a valid predicate crime.” Id.