17‐1676
Massey v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
______________
August Term 2017
(Argued: April 20, 2018 Decided: July 11, 2018)
Docket No. 17‐1676
BURGESS MASSEY,
Petitioner‐Appellant,
v.
UNITED STATES OF AMERICA,
Respondent‐Appellee.*
______________
Before:
WESLEY and CHIN, Circuit Judges, and FURMAN, Judge.**
______________
* The Clerk of the Court is respectfully directed to amend the
caption.
** Judge Jesse M. Furman of the United States District Court for
the Southern District of New York, sitting by designation.
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.
______________
2
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)).
1 The ACCA provides for a sentencing enhancement for any
person who violates § 922(g) and who has three prior convictions
for violent felonies. The ACCA defines a violent felony as a crime
punishable by imprisonment for a term exceeding one year that
(1) “has as an element the use, attempted use, or threatened use
of physical force against the person of another” (the force clause);
(2) “is burglary, arson, or extortion, [or] involves use of
explosives” (enumerated offense clause); or (3) “otherwise
involves conduct that presents a serious potential risk of physical
injury to another” (residual clause). 18 U.S.C. § 924(e)(2)(B).
3
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 II), 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
2 The District Court also found that Massey did not receive
ineffective assistance of counsel because of his attorney’s failure
to object to the ACCA sentence enhancement. Id. The ACCA’s
penalty section, which discusses the relevant sentence
enhancements, is located at 18 U.S.C. § 924.
4
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 [II] 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.
3 This Court’s order mistakenly lists the date as September 13,
2016, but as seen on the docket the order was entered on June 13,
2016.
4 Spencer held that attempted New York third‐degree robbery was
a crime of violence under the USSG’s force clause. 955 F.2d at 820.
5
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
5 Perhaps the recall of the mandate and grant of Massey’s motion
for leave was ill‐advised. As discussed infra, Massey’s claim relied
on Johnson I and the now‐vacated Jones I—which applied Johnson
I in overruling Spencer—but such a claim could not satisfy the
requirements of 28 U.S.C. § 2255(h) because Johnson I did not
announce a new constitutional rule; it simply interpreted the
ACCA.
6
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 District
Court therefore denied Massey’s motion but—concerned
with the shifting legal landscape—issued a certificate of
appealability. Id. at *4. Massey timely appealed.
DISCUSSION
We must first evaluate whether Massey’s successive
§ 2255 motion satisfies the statutory requirements governing
successive habeas petitions; if the motion fails to satisfy those
threshold requirements, we need not reach the merits of his
6 Jones I was vacated and held pending the Supreme Court’s
decision in Beckles v. United States, 137 S. Ct. 886 (2017). In Beckles,
the Supreme Court held that the USSG’s residual clause was not
void for vagueness. Id. at 894–95. This Court then held in United
States v. Jones (Jones II), 878 F.3d 10, 17–18 (2d Cir. 2017), that New
York first‐degree robbery was categorically a “crime of violence”
under the USSG’s residual clause and did not reach the issue on
which it had previously resolved Jones I—whether robbery under
New York law was categorically a crime of violence under the
USSG’s force clause after Johnson I. The net result of Jones II was to
reinstate our prior ruling in Spencer that robbery under New York
law is a crime of violence under the ACCA’s force clause.
7
claim. See 28 U.S.C. §§ 2244(a), (b)(3)–(4), 2255(h).7 Although
this Court previously authorized the District Court to
consider Massey’s motion, this Court’s determination that
Massey had made a prima facie showing that his motion
satisfied the requirements of 28 U.S.C. § 2244 and § 2255(h)
was not a finding that Massey actually satisfied those
requirements, and it does not prevent our review now. See
Tyler v. Cain, 533 U.S. 656, 660–61 & n.3 (2001); United States
v. Geozos, 870 F.3d 890, 894 n.5 (9th Cir. 2017). As noted
earlier, § 2255 requires that a federal habeas petitioner’s
second or successive motion contain 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). The District Court
concluded—and Massey argues on appeal—that Massey’s
claim relies at least in part on the new rule of constitutional
law announced in Johnson II because Johnson II invalidated
the residual clause of the ACCA. Massey, 2017 WL 2242971,
at *3. See Johnson II, 135 S. Ct. at 2563.8
Massey maintains that his force clause claim—which
is necessarily based on Johnson I’s interpretation of the
ACCA’s force clause—also relies on the new constitutional
7 This Court reviews “de novo the legal conclusions underlying a
district court’s denial of a motion for relief under 28 U.S.C. § 2255.
[This Court] will defer . . . to a district court’s findings of fact
unless they are clearly erroneous.” Rivera v. United States, 716 F.3d
685, 687 (2d Cir. 2013) (citations omitted).
Johnson II applies retroactively to cases on collateral review.
8
Welch v. United States, 136 S. Ct. 1257, 1268 (2016).
8
rule announced in Johnson II. He contends that if he were
successful on his merits argument under Johnson I—that
New York third‐degree robbery is not an ACCA predicate
under the ACCA’s force clause—his sentence could still have
been upheld pursuant to the residual clause prior to Johnson
II. Under Massey’s theory, both Johnson I’s statutory
interpretation of the force clause and Johnson II’s
constitutional invalidation of the residual clause were
therefore necessary to grant him relief from his ACCA
sentence enhancement. Thus, Massey asserts that his claim
in essence relies on Johnson II. We disagree.
Massey’s claim relies on a new rule of constitutional
law only if he was sentenced in violation of that new
constitutional rule. Geozos, 870 F.3d at 895. The question
before us is therefore whether Massey was sentenced in
violation of the new constitutional rule announced in Johnson
II, which held that the ACCA’s residual clause was
unconstitutionally vague. Johnson II, 135 S. Ct. at 2563. The
record from Massey’s sentencing hearing answers that
question.
We have no doubt that Massey’s sentence was
enhanced pursuant to the ACCA’s force clause. The District
Court clearly stated this during the sentencing hearing: “the
statutes for robbery in the third degree, assault in the second
degree and attempted assault in the second degree all
involve the use or attempted use of force.” App. 30. The
District Court also later noted that it had “unequivocally
found that Massey’s prior convictions were ACCA
predicates under the ‘force’ clause, not the residual clause.”
Massey, 2017 WL 2242971, at *3. Additionally, in Massey’s
9
direct appeal, this Court cited to the force clause when
holding that “the district court properly relied on the
statutory elements of Massey’s prior convictions in finding
he had committed three prior violent felonies.” Massey, 461
F.3d at 179 (citing and quoting the “force clause” from the
ACCA, 18 U.S.C. § 924(e)(2)(B)).
Massey’s claim relies on Johnson I, a decision that
interpreted the ACCA’s force clause but did not announce a
new rule of constitutional law, and therefore cannot provide
the basis for a successive § 2255 motion. 28 U.S.C. § 2255(h).
Massey’s claim does not rely on Johnson II because his
sentence was not in any way predicated on the portion of the
ACCA invalidated by that case. His claim solely relies on
Johnson I and it cannot be bootstrapped to Johnson II to attain
review under the Antiterrorism and Effective Death Penalty
Act of 1996, which placed “stringent limits” on second or
successive motions under § 2255. Adams v. United States, 155
F.3d 582, 583 (2d Cir. 1998) (per curiam).9
9 This outcome leads to the most consistent results across a range
of hypotheticals given the structure of the bar on successive § 2255
motions. If Massey had attempted to file a successive motion
between Johnson I and Johnson II, that motion likely would have
been denied because Johnson I—which interpreted the force
clause—did not announce a new rule of constitutional law. It
seems perverse to permit Massey to use the procedural hook of
Johnson II’s constitutional decision—which had no bearing on the
ACCA’s force clause—as a means of making a purely statutory
merits argument that he previously would have been precluded
from raising. Similarly, if Johnson II had preceded Johnson I and
Massey had attempted to bring a successive § 2255 motion after
10
Our conclusion is consistent with the decisions of
several of our sister circuits. In Geozos, the Ninth Circuit
stated that “it [wa]s unclear from the record whether the
sentencing court relied on the residual clause,” 870 F.3d at
895, and held that “when it is unclear whether a sentencing
court relied on the residual clause[,] . . . but it may have, the
defendant’s § 2255 claim ‘relies on’ the constitutional rule
announced in Johnson II,” id. at 896. However, the Ninth
Circuit also noted that “had the sentencing court specified
that a past conviction qualified as a ‘violent felony’ only
under the force clause, we would know that the sentence
rested on a constitutionally valid legal theory[,] . . .
preclud[ing] the filing of a second or successive petition.” Id.
at 895 (citing 28 U.S.C. § 2255(h)(2)). Additionally, the First
Circuit addressed a claim analogous to Massey’s in Dimott v.
United States, 881 F.3d 232 (1st Cir. 2018). Two of the movants
in Dimott were found to have clearly been “sentenced under
the ACCA’s enumerated [offense] clause, not the residual
clause.” Id. at 236. The First Circuit concluded that
“allow[ing] petitioners to clear the timeliness bar by
bootstrapping their Mathis claims onto Johnson II claims,
even where, as here, the merits of their case entirely depend
on whether their previous convictions still qualify as ACCA
predicates in light of Mathis . . . cannot be right.” Id. at 237–
the initial constitutional rule had been announced, his motion
clearly would have been denied because he was sentenced under
the force clause and not the residual clause, and if he waited until
Johnson I hypothetically followed Johnson II, the motion would
have been denied because Johnson I did not announce a new
constitutional rule.
11
38 (referencing Mathis v. United States, 136 S. Ct. 2243 (2016)).
Massey similarly attempts to bootstrap his Johnson I claims
onto Johnson II claims when the merits depend entirely on
whether New York third‐degree robbery still qualifies under
the ACCA’s force clause after Johnson I. Allowing him to do
so “cannot be right.” See id at 238.10
We hold that where it is clear from the record that a
movant’s sentence was enhanced pursuant to the ACCA’s
10 Other circuits have also addressed whether a § 2255 movant’s
claim relies on Johnson II when it was unclear from the sentencing
record whether the movant was sentenced under the residual
clause, the force clause, or the enumerated offense clause.
Although our holding in this case does not reach those situations,
these cases are consistent with our holding because their diligent
analyses of whether the respective movants were sentenced under
the residual clause—and how to handle unclear sentencing
records—would be superfluous if our sister circuits maintained
that a movant’s claim relied on Johnson II when that movant was
sentenced pursuant to the force clause. See Dimott, 881 F.3d at 243
(movant bears the burden of establishing that they were
sentenced solely pursuant to the residual clause when the
sentencing court does not specify); Beeman v. United States, 871
F.3d 1215, 1221–22 (11th Cir. 2017) (same); United States v. Taylor,
873 F.3d 476, 480–82 (5th Cir. 2017) (a movant’s § 2255 claim relies
on Johnson II when the sentencing court did not specify which
ACCA clause it invoked); United States v. Winston, 850 F.3d 677,
682 (4th Cir 2017) (same); United States v. Snyder, 871 F.3d 1122,
1128–30 (10th Cir. 2017) (where the district court did not specify
which clause was invoked, the court could look to the “relevant
background legal environment” to determine which clause the
ACCA determination relied upon).
12
force clause, their § 2255 claim does not rely on Johnson II for
the purposes of 28 U.S.C. § 2255(h). Therefore, Massey’s
motion must be denied.11
CONCLUSION
For the reasons set forth above, 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.
Because we deny Massey’s motion on procedural grounds, we
11
do not reach the merits of his argument regarding whether New
York third‐degree robbery qualifies as an ACCA predicate under
the force clause post‐Johnson I.
13