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Massey v. United States

United States Court of Appeals, Second Circuit

July 11, 2018

BURGESS MASSEY, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee

          Argued: April 20, 2018

         Petitioner-Appellant Burgess Massey appeals from a May 22, 2017 opinion and order of the United States District Court for the Southern District of New York (William H. Pauley III, J.) denying his motion for habeas relief. After this Court granted Massey's motion for leave to file a successive § 2255 motion, the District Court concluded that although Massey's claim "relied on" the new rule of constitutional law announced by the Supreme Court in Johnson v. United States (Johnson II), 135 S.Ct. 2551 (2015), New York third-degree robbery was a crime of violence under the Armed Career Criminal Act ("ACCA"), and therefore his sentence was subject to enhancement. We hold that Massey's claim does not rely on the rule announced in Johnson II because his sentence was clearly enhanced pursuant to the "force clause" of the ACCA; Johnson II does not help him. Accordingly, we AFFIRM the order of the District Court to the extent it denies Massey's motion to vacate his sentence pursuant to 28 U.S.C. § 2255.

          Darrell B. Fields, Assistant Federal Public Defender, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Petitioner-Appellant.

          Kiersten A. Fletcher, Assistant United States Attorney (Won S. Shin, Assistant United States Attorney, on the brief) for Geoffrey S. Berman, United States Attorney for the Southern District of New York, for Respondent-Appellee.

          Before: Wesley and Chin, Circuit Judges, [**] [*] and Furman, Judge. [**]

          PER CURIAM

         Burgess Massey was convicted of possession of a firearm as a felon in violation of 18 U.S.C. § 922(g)(1) in March 2004. The District Court-during sentencing- explicitly found that Massey's prior felony convictions for third-degree robbery, second-degree assault, and second-degree attempted assault (all under New York law) subjected his sentence to enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), because all three of those offenses involved the use or attempted use of force; the court imposed a sentence of 235 months' imprisonment. App. 30.[1] This Court affirmed his conviction and sentence, concluding that "the district court properly relied on the statutory elements of Massey's prior convictions in finding he had committed three prior violent felonies." United States v. Massey, 461 F.3d 177, 179 (2d Cir. 2006) (citing and quoting the "force clause" from the ACCA, 18 U.S.C. § 924(e)(2)(B)).

         After the Supreme Court denied his petition for a writ of certiorari, Massey v. United States, 549 U.S. 1136 (2007), Massey filed his first motion for relief pursuant to 28 U.S.C. § 2255, Massey v. United States, 08-924, 2009 WL 1285991 (S.D.N.Y. Apr. 23, 2009). The District Court denied his motion and did not issue a certificate of appealability, finding that his three prior offenses "all qualify as violent felonies for purposes of an ACCA sentence enhancement." Id. at *3.[2]

         Following this unsuccessful first motion, Massey moved in this Court several times for leave to file successive § 2255 motions. As relevant here, a successive § 2255 motion is only permissible if it contains a claim that relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2).

         This Court denied his first two successive motions in 2013 and 2014. Massey v. United States, 13-2947 (2d Cir. Sept. 4, 2013), ECF No. 17; Massey v. United States, 14-2281 (2d Cir. July 24, 2014), ECF No. 19. After the Supreme Court held in Johnson v. United States (Johnson IT), 135 S.Ct. 2551, 2563 (2015), that the residual clause of the ACCA was unconstitutionally vague, Massey once more moved for leave to file a successive § 2255 motion. This third motion was denied by this Court, which determined Massey failed to make "a prima facie showing that the new rule of constitutional law announced in Johnson [IT] applies to his conviction. Petitioner's sentence was not enhanced under the provision of the ACCA invalidated by Johnson [II]." Massey v. United States, 16-1043 (2d Cir. June 13, 2016), ECF No. 36 (citations omitted).[3]

         After the denial of Massey's third motion, this Court issued its now-vacated decision in United States v. Jones (Jones I), 830 F.3d 142 (2d Cir. 2016), vacated, 838 F.3d 296 (mem.) (2d Cir. 2016). The Jones I decision, which overruled prior contrary precedent of this Court- United States v. Spencer, 955 F.2d 814 (2d Cir. 1992)[4]-held that New York first-degree robbery was not categorically a "crime of violence" under the force clause of the United States Sentencing Guidelines ("USSG"). Jones I, 830 F.3d 142. That holding was based on the Supreme Court's decision in Johnson v. United States (Johnson I), 559 U.S. 133 (2010), which held, as a matter of statutory interpretation, that the phrase "physical force" in the ACCA's force clause meant "violent force-that is, force capable of causing physical pain or injury to another person." Id. at 140.

         Massey-relying on Jones I-then moved to recall the mandate denying his third motion. Massey v. United States, 16-1043 (2d Cir. Sept. 1, 2016), ECF. No. 39. He argued that manifest injustice would result if the mandate were not recalled because (1) one of his three ACCA predicate offenses, New York third-degree robbery, no longer qualified as an ACCA predicate after Jones I and Johnson II; and (2) this Court had allowed other movants to file successive motions based on Johnson II. Id. at 2, 4. Before the Jones I decision was vacated, this Court granted Massey's motion to recall the mandate and granted Massey's motion for leave to file a successive § 2255 motion, instructing the District Court "to address, as a preliminary inquiry under [28 U.S.C.] § 2244(b)(4), whether the Supreme Court's decision in Johnson [II] entitles [Massey] to relief." Massey v. United States, 16-1043 (2d Cir. Sept. 21, 2016), ECF No. 44.[5]

         The District Court concluded that Massey's claim satisfied the requirements of 28 U.S.C. § 2255(h) because it "relie[d] on" Johnson II. Massey v. United States, 17-1455, 2017 WL 2242971, at *3 (S.D.N.Y. May 22, 2017). After addressing this threshold issue, the District Court concluded on the merits that Massey's prior New York third-degree robbery conviction was a crime of violence under the ACCA. Id. The District Court acknowledged that after Jones I was vacated, [6]the earlier precedent of this Circuit-although decided pre-Johnson I-controlled, and "case law in this Circuit-as it currently stands-holds that New York robbery is a 'crime of violence' for purposes of the ACCA." Id. The ...


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