Third time’s a charm? Case sent back to the district court to decide if a 924(c) conviction based on an attempt to commit Hobbs Act Robbery should be vacated.

In 2004, Lawrence Savoca was convicted for using a gun during an attempt to commit Hobbs Act robbery. Since Johnson was decided in 2016, he has been trying to get this 924(c) conviction vacated in lengthy litigation involving three trips to the Second Circuit. First, the Circuit granted his request to file a successive habeas petition. But then the district court dismissed his motion, holding that it wasn’t based on a new rule of constitutional law. Second, Savoca appealed and the Second Circuit affirmed.

But, Savoca (and Ed Zas of the Federal Defenders) wasn’t done. After the Supreme Court decided Taylor, Savoca filed a rehearing petition. Yesterday, in a third ruling on this case, the Second Circuit vacated their original decision about 924(c) and remanded to the district court.

Unfortunately for Savoca though, he hasn’t fully won, at least not yet. Even though the Supreme Court has made it abundantly clear that 924(c) convictions cannot be based on predicate crimes of attempt to commit Hobbs Act robbery, the Circuit’s decision did not actually vacate Savoca’s 924(c) conviction based on that very same predicate. Instead, it instructed the district court to decide whether Savoca has met the AEDPA gatekeeping requirement for second or successive petitions. According to the Circuit, this analysis depends on whether Savoca’s original 924(c) conviction was based on the elements clause or the residual clause of 924(c). The Circuit admits that the original sentencing record said nothing about a particular clause of 924(c). So what should the district court do? The Circuit counsels that it should look at the “parties’ oral and written sentencing arguments, sentencing hearing transcripts, PSRs, [ ] similar parts of the sentencing record” and “background legal conditions.”

So Savoca’s legal saga continues…