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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14869
Non-Argument Calendar
____________________
IRAMM WRIGHT,
Petitioner-Appellee,
versus
UNITED STATES OF AMERICA,
Respondent-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cv-24060-PCH
____________________
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2 Opinion of the Court 20-14869
Before JILL PRYOR, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
The government appeals the district court’s order granting
Iramm Wright’s authorized successive 28 U.S.C. § 2255 motion to
vacate his 18 U.S.C. § 924(c) conviction and sentence in light of
United States v. Davis, 588 U.S. ___, 139 S. Ct. 2319 (2019). After
review and given our binding precedent in Granda v. United States,
990 F.3d 1272 (11th Cir. 2021), we reverse the district court’s grant
of Wright’s § 2255 motion and remand to the district court with
instructions to deny the motion.
I. BACKGROUND
A. Offense Conduct
Wright’s convictions arise out of a planned stash-house
robbery. An undercover agent posing as a disgruntled drug courier
approached Wright about robbing 20 to 30 kilograms of cocaine
from his employers’ stash house.
Three times Wright and a co-conspirator met with the
undercover agent to plan the stash-house robbery. During their
meetings, the conspirators discussed, among other things, the need
to recruit an experienced robbery crew and bring firearms to the
robbery because the stash house had armed guards, and how to
split the stolen cocaine after the robbery.
On the day of the planned robbery, Wright and the rest of
the crew were arrested after they arrived at a prearranged
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20-14869 Opinion of the Court 3
rendezvous point. Agents found two loaded firearms, gloves, and
a black ski mask in the Chevy Tahoe in which Wright had been
riding.
B. Trial and Convictions
In 2005, a jury convicted Wright of: (1) conspiracy to
commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)
(Count 1); (2) conspiracy to possess with intent to distribute a
controlled substance (cocaine), in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846 (Count 2); (3) attempt to possess
with intent to distribute a controlled substance (cocaine), in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 and 18 U.S.C.
§ 2 (Count 3); (4) using and carrying firearms during and in relation
to a crime of violence and a drug trafficking crime “as set forth in
Counts 1, 2, and 3,” in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2
(Count 4); and (5) possession of a firearm as a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 5).
As to the § 924(c) firearm offense in Count 4, the trial court
instructed the jury that Wright could be found guilty if the
government proved beyond a reasonable doubt that Wright
“committed a drug trafficking offense or a crime of violence as
charged in Counts 1, 2 and 3 of this indictment” and that he carried
the firearm in relation to or possessed the firearm in furtherance of
“the crime of violence or drug trafficking crime.” The trial court
further instructed the jury that the § 924(c) firearm offense in
Count 4 was charged “in two separate ways”—that Wright
“knowingly carried a firearm during and in relation to a drug
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4 Opinion of the Court 20-14869
trafficking crime or a crime of violence and possessed a firearm in
furtherance of [a] drug trafficking offense or a crime of violence.”
The trial court instructed that the government could prove Wright
committed the crime either way, but that the jury needed to
“unanimously agree upon the way in which [Wright] committed
the violation.” As to Count 4, the jury returned a general verdict
and did not indicate which of the charged predicate offenses it
relied on.
The district court sentenced Wright to 240 months’
imprisonment on Count 1 and 360 months imprisonment on
Counts 2, 3, and 5, all to be served concurrently. As to Count 4,
the district court imposed a consecutive 60-month sentence, for a
total sentence of 420 months’ imprisonment.
C. Direct Appeal and First § 2255 Motion
Wright filed a direct appeal but did not challenge the validity
of the predicate offenses supporting his § 924(c) conviction on
Count 4 or argue that any part of § 924(c) was unconstitutionally
vague. On December 19, 2007, this Court affirmed Wright’s
convictions and sentences. See United States v. Reed, 259 F. App’x
289 (11th Cir. 2007).
In 2009, Wright filed his first § 2255 motion raising
numerous claims, none of which are relevant to this appeal.
Wright’s § 2255 motion was denied on the merits, and both the
district court and this Court denied Wright’s requests for a
certificate of appealability.
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D. Authorized Successive § 2255 Motion based on Davis
In June 2019, the Supreme Court held in United States v.
Davis that the residual clause definition of a “crime of violence” in
§ 924(c)(3)(B) was unconstitutionally vague. 588 U.S. ___, 139 S.
Ct. 2319, 2323, 2336 (2019). 1 Shortly thereafter, this Court granted
Wright’s application for leave to file a successive § 2255 motion
attacking his § 924(c) conviction on Count 4 based on Davis.
Wright’s authorized successive § 2255 motion argued that
his § 924(c) conviction on Count 4 must be vacated because one of
the three predicate crimes—conspiracy to commit Hobbs Act
robbery—was no longer valid given that it qualified as a crime of
violence only under the residual clause invalidated in Davis. See
Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019)
(concluding shortly after Davis that conspiracy to commit Hobbs
Act robbery did not qualify as a crime of violence under
§ 924(c)(3)(A)’s still-valid elements clause).
1 Section 924(c) makes it a separate crime punishable by a mandatory consec-
utive sentence to use or carry a firearm during a “crime of violence” or a “drug
trafficking crime.” 18 U.S.C. § 924(c). Under § 924(c)(3), a crime of violence
is an offense that is a felony and (A) “has as an element the use, attempted use,
or threatened use of physical force against the person or property of another,”
or (B) “that by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing
the offense.” 18 U.S.C. § 924(c)(3)(A), (B). Courts have referred to
§ 924(c)(3)(A) as the “elements clause” and to § 924(c)(3)(B) as the “residual
clause.” Davis, 588 U.S. at ___, 139 S. Ct. at 2323.
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6 Opinion of the Court 20-14869
The government opposed Wright’s motion, arguing that:
(1) Wright had procedurally defaulted his Davis claim by failing to
raise it on direct appeal and could not overcome the default; and in
any event, (2) Wright’s Davis claim failed on the merits because he
failed to show that the jury relied solely on the Hobbs Act
conspiracy predicate to find him guilty of the § 924(c) offense.
E. District Court’s Order Granting § 2255 Motion
On October 7, 2020, the district court granted Wright’s
§ 2255 motion and vacated his § 924(c) conviction and sentence as
to Count 4. The district court concluded, based on the jury
instructions and the jury’s general verdict as to Count 4, that it was
impossible to determine from the record whether Wright’s Count
4 conviction was based on the now-invalid Hobbs Act conspiracy
predicate. The district court concluded there was error under
Stromberg v. California, 283 U.S. 359, 51 S. Ct. 532 (1931), and that
Stromberg “forbids” a finding that the error was harmless. The
district court instead found the error was not harmless because it
was “impossible to determine from the jury instructions and the
jury’s general verdict the basis on which the jury’s conviction on
Count Four rested.”
The district court also rejected the government’s procedural
default argument, concluding: (1) Wright’s Davis claim was
jurisdictional and thus not subject to procedural default; and
(2) alternatively, Wright had demonstrated cause and prejudice to
overcome the procedural default.
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20-14869 Opinion of the Court 7
Shortly thereafter, the district court resentenced Wright to
240 months on Count 1 and 312 months on Counts 2, 3, and 5, all
to run concurrently. This appeal by the government followed.2
II. DISCUSSION
On appeal, the government reasserts its arguments that
Wright procedurally defaulted his Davis claim and, in any event,
his Davis claim fails on the merits. While this appeal was pending,
we issued our decision in Granda v. United States, 990 F.3d 1272
(11th Cir. 2021), which is materially indistinguishable from this case
and supports both of the government’s contentions.3
2 The government’s notice of appeal, filed December 29, 2020, sought to
appeal both the October 7, 2020 order granting Wright’s § 2255 motion and
the November 3, 2020 amended criminal judgment. However, the
government now states it challenges only the § 2255 order and not the
amended criminal judgment. In light of the government’s express
abandonment, we need not address Wright’s argument in response to this
Court’s Jurisdictional Question that the government’s notice of appeal was
untimely as to the amended criminal judgment and DENY AS MOOT
Wright’s construed motion to dismiss the government’s appeal from the
amended criminal judgment.
3 When reviewing a district court’s denial of a § 2255 motion, we review ques-
tions of law de novo and factual findings for clear error. Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004). Similarly, we review de novo whether
procedural default precludes a § 2255 movant’s claim, which is a mixed ques-
tion of law and fact. Granda v. United States, 990 F.3d 1272, 1286 (11th Cir.
2021).
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8 Opinion of the Court 20-14869
A. Procedural Default Principles
Section 2255 allows federal prisoners to obtain post-
conviction relief and set aside prior convictions when a sentence
“was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255. However, a § 2255 claim may be
procedurally defaulted if the movant failed to raise the claim at trial
or on direct appeal. Granda, 990 F.3d at 1285-86. A movant can
overcome the procedural bar by establishing either (1) cause for the
default and actual prejudice from the alleged error, or (2) that he is
actually innocent of the crimes for which he was convicted. Id. at
1286.
B. Granda
In Granda, this Court applied these procedural default
principles to a Davis claim that is indistinguishable from Wright’s
in all material respects. The § 2255 movant in Granda, like Wright
here, was arrested during a planned robbery where an undercover
agent posed as a disgruntled drug trafficker who wanted to rob his
boss. Id. at 1281. Granda and the rest of the robbery crew planned
to dress up as armed police and steal a “stash truck” they believed
contained cocaine. Id. Instead, when they arrived with guns at the
prearranged rendezvous spot, Granda ultimately was arrested. Id.
Like Wright, Granda was charged with, and convicted of,
both drug and Hobbs Act offenses as well as a § 924 firearm offense.
One of Granda’s convictions was for a § 924(o) firearm conspiracy
count where the five charged predicates were a mix of alleged
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20-14869 Opinion of the Court 9
crimes of violence and drug trafficking crimes, including Hobbs Act
robbery conspiracy. Id. at 1281-82. At trial, the district court gave
a jury instruction much like the one given at Wright’s trial. The
district court instructed Granda’s jury that it could convict Granda
of the § 924(o) firearm conspiracy if it found that the object of the
conspiracy was to use or carry a firearm during and in relation to
either a drug trafficking crime or a crime of violence, or both, “as
charged in Counts 1, 2, 3, 4, or 5” but that it had to unanimously
decide on which predicate. Id. at 1281, 1285, 1291. And, as in
Wright’s case, the Granda jury returned a general verdict. Id. at
1282.
In 2009, Granda filed an unsuccessful direct appeal and later
a first § 2255 motion. Id. at 1282. However, similar to Wright here,
Granda on direct appeal did not raise a constitutional challenge to
§ 924(c)’s residual clause or argue that his Hobbs Act conspiracy
predicate was invalid until his authorized successive § 2255 motion
in 2016. 4 Id. And, in Wright’s case, the government responded that
Granda had procedurally defaulted his claim. Id. The district court
denied Granda’s § 2255 motion on the merits, concluding Granda
could not show it was more likely than not that the jury relied on
4 Granda originally brought his claim under Johnson v. United States, 576 U.S.
591, 135 S. Ct. 2551 (2015), which invalidated a similar residual clause in the
Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). This Court resolved
Granda’s claim under Davis, which was announced while Granda’s appeal was
pending.
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10 Opinion of the Court 20-14869
the Hobbs Act conspiracy to convict him of the § 924(o) offense.
Id. at 1282-83.
On appeal, this Court affirmed on two grounds: (1) Granda
could not show either cause and actual prejudice or actual
innocence to overcome the procedural default of his claim; and
(2) Granda could not prevail on the merits. Id. at 1280-81.
As to procedural default, this Court concluded that Granda’s
constitutional vagueness claim was not sufficiently novel to
constitute cause. Id. at 1286. The Court explained that while Davis
announced a new constitutional rule of retroactive application, it
was not a “sufficiently clear break with the past” that an attorney
representing Granda “would not reasonably have had the tools”
necessary to present the claim before Davis. Id. (quotation marks
omitted). We also stated: “Moreover, the case law extant at the
time of Granda’s appeal confirms that he did not then lack the
‘building blocks of’ a due process vagueness challenge to the
§ 924(c) residual clause.” Id. at 1287-88 (citing cases going back to
1986 that demonstrated litigants had been raising similar vagueness
challenges to other parts of § 924(c) “for years”). Therefore, this
Court ruled that Granda’s Davis claim was available in 2009 when
he filed his direct appeal. Id.
Even if Granda could show cause, this Court also concluded
he could not establish actual prejudice because he could not show
“a substantial likelihood” that “the jury relied only on” the invalid
predicate to convict him. Id. at 1288. The Court explained that it
was “not enough for Granda to show that the jury may have relied
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20-14869 Opinion of the Court 11
on the Count 3 Hobbs Act conspiracy conviction as the predicate”
because “reliance on any of [the other valid predicates] would have
provided a wholly independent, sufficient, and legally valid basis to
convict . . . .” Id. In short, if the absence of the invalid predicate
would not likely have changed the jury’s decision to convict, then
the petitioner did not suffer actual prejudice. Id.
The Court found that Granda could not make this showing
because: (1) the jury unanimously found him guilty of all the valid
predicates, including conspiracy and attempted possession of
cocaine with intent to distribute; (2) the trial record made “it
abundantly clear” that the jury’s findings of guilt all “rested on the
same operative facts and the same set of events” including “that
Granda had conspired and attempted to rob the truck in order to
possess and distribute the cocaine it held”; and (3) in light of the
trial evidence, the jury could not have concluded he conspired to
possess the firearm in furtherance of the robbery conspiracy
without also finding he conspired to possess the firearm in
furtherance of the drug conspiracy and the other valid predicates.
Id. at 1289.
The Granda Court relied on United States v. Cannon, 987
F.3d 924, 947-50 (11th Cir. 2021), which held on direct appeal that
a Davis error in submitting an invalid Hobbs Act conspiracy
predicate to the jury was harmless where the trial record made
clear that the invalid predicate was “inextricably intertwined” with
a valid cocaine conspiracy predicate such that “no rational juror
could have found that [the defendants] carried a firearm in relation
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12 Opinion of the Court 20-14869
to one predicate but not the other.” Id. at 1289-90 (quotation marks
omitted). The Court determined that, as in Cannon, Granda’s
“alternative predicate offenses [were] inextricably intertwined—
each arose from the same plan and attempt to commit armed
robbery of a tractor-trailer full of cocaine.” And this “tightly bound
factual relationship of the predicate offenses preclude[d] Granda
from showing [on collateral attack] a substantial likelihood that the
jury relied solely on” the one invalid predicate. Id. at 1291.
Finally, for the same reason—that no reasonable juror
would have concluded Granda conspired to possess the firearm in
furtherance of only the invalid Hobbs Act conspiracy and not the
drug trafficking crimes—this Court also concluded that Granda
could not establish actual innocence. Id. at 1292; see also Parker v.
United States, 993 F.3d 1257, 1263 (11th Cir. 2021) (following
Granda as “materially indistinguishable” to conclude the § 2255
movant had not shown actual innocence to overcome the
procedural default of his Davis claim where it was “undeniable on
this record” that the movant’s “valid drug trafficking predicates
[were] inextricably intertwined with the invalid Hobbs Act
conspiracy predicate”).
C. Wright’s Davis Claim is Subject to the Procedural Default
Bar
Wright argues his Davis claim cannot be procedurally
defaulted because the error is jurisdictional. On collateral review,
a defendant can avoid the procedural default bar altogether “if the
alleged error is jurisdictional.” United States v. Bane, 948 F.3d
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20-14869 Opinion of the Court 13
1290, 1294 (11th Cir. 2020). Although a district court has the
statutory power under 18 U.S.C. § 3231 to adjudicate the
prosecution of federal offenses, id., this Court has held “that a
district court lacks jurisdiction when an indictment alleges only a
non-offense.” United States v. Peter, 310 F.3d 709, 715-16 (11th Cir.
2002). On the other hand, “[s]o long as the indictment charges the
defendant with violating a valid federal statute as enacted in the
United States Code, it alleges an ‘offense against the laws of the
United States’ and, thereby, invokes the district court’s subject-
matter jurisdiction.” United States v. Brown, 752 F.3d 1344, 1354
(11th Cir. 2014). 5
Here, Wright cannot claim that, in light of Davis, his
indictment alleged only a “non-offense.” That is, he cannot, and
does not, argue that Count 4 charged only conduct falling outside
the sweep of § 924(c). This is so because Wright’s § 924(c) count
alleged both the invalid Hobbs Act conspiracy predicate and two
5 As this Court has explained, Peter and other cases finding jurisdictional
defects in indictments involve the “specific and narrow circumstances” in
which the indictments “affirmatively allege facts that conclusively negated the
existence of any offense against the laws of the United States.” United States
v. Brown, 752 F.3d 1344, 1353 (11th Cir. 2014). In Peter, the indictment defect
was jurisdictional because the only conduct affirmatively alleged
“undoubtedly fell outside the sweep of the [federal criminal] statute.” Id.
Absent such specific and narrow circumstances, the Supreme Court has made
clear that “defects in an indictment do not deprive a court of its power to
adjudicate a case.” Id. (quoting United States v. Cotton, 535 U.S. 625, 631, 122
S. Ct. 1781, 1785 (2002)).
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14 Opinion of the Court 20-14869
undisputedly valid drug trafficking predicates. 6 Thus, Wright’s
indictment charged him with violating a valid federal statute and
the indictment defect Wright points to here was nonjurisdictional.
See Brown, 752 F.3d at 1354. Moreover, this Court has repeatedly
held that a Davis claim like Wright’s—in which the § 924(c) count
charges both valid and invalid predicates—can be procedurally
defaulted. See Granda, 990 F.3d at 1286-92; Parker, 993 F.3d at
1262.
D. Wright Cannot Overcome His Procedural Default
On direct appeal in 2007, Wright did not argue that his
§ 924(c) conviction was invalid because the § 924(c)(3)(B) residual
clause was unconstitutionally vague. Thus, like the petitioners in
6 For this reason, Wright’s reliance on United States v. St. Hubert is misplaced.
The defendant in St. Hubert claimed that neither of the two predicates alleged
in his § 924(c) count qualified as a crime of violence. St. Hubert, 909 F.3d 335,
343 (11th Cir. 2018) (concluding that St. Hubert’s Johnson claim was
jurisdictional because he argued that all of the charged predicates were invalid
and thus the indictment “consisted only of specific conduct” that as a matter
of law was outside the sweep of § 924(c)), abrogated on other grounds by
Davis, 588 U.S. at ___, 139 S. Ct. at 2332-36.
Here, however, Wright does not dispute that the two drug trafficking
predicates alleged in his § 924(c) offense in Count 4 remain valid after Davis.
Thus, Wright’s indictment alleged conduct—possessing a firearm in
furtherance of two drug trafficking crimes—that constitutes a valid federal
offense. Wright’s claim, which turns on the fact that the jury returned a
general verdict, is not like the claim in St. Hubert, which turned on the
indictment’s purported failure to allege any § 924(c) offense at all.
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20-14869 Opinion of the Court 15
Granda and Parker, Wright procedurally defaulted his Davis-based
challenge to his § 924(c) conviction.
Wright cannot show cause or actual prejudice to overcome
his default. First, Wright cannot show cause because, as was true
in Granda, the building blocks to bring a due process vagueness
challenge to § 924(c)(3)(B)’s residual clause existed at the time of
his 2007 direct appeal. Granda, 990 F.3d at 1286-92; see also Parker,
993 F.3d at 1265. As we explained in Granda, the Supreme Court’s
2007 decision in James v. United States, 550 U.S. 192, 127 S. Ct. 1586
(2007), “indicated that at least three Justices were interested in
entertaining challenges to the ACCA’s residual clause, and perhaps
to similar statutes.” Granda, 990 F.3d at 1287. In addition,
defendants had been raising similar vagueness challenges to
various criminal statutes, including other parts of § 924(c), for
many years leading up to 2007, indicating that by the time of
Wright’s 2007 direct appeal “the tools existed” to bring such a
challenge to § 924(c)(3)(B). See id. at 1287-88 (citing examples from
other circuits all decided before the conclusion of Wright’s direct
appeal).
Even if Wright could establish cause for his procedural
default, he could not show actual prejudice. To do so, Wright
would have to show a “substantial likelihood” that the jury actually
relied only on his Hobbs Act conspiracy predicate to convict him
of the § 924(c) count. See id. at 1288. But, based on the record
before us, he cannot do so.
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Given the trial evidence that Wright planned and attempted
to rob at gunpoint a drug dealer’s stash house containing 20 to 30
kilograms of cocaine so that he could then sell at least a portion of
the cocaine himself, the jury unanimously found him guilty of all
of the predicates: conspiracy and attempt to possess cocaine with
intent to distribute it and conspiracy to commit Hobbs Act
robbery. The trial record establishes (1) that all of these findings of
guilt “rested on the same operative facts and the same set of
events”; (2) that the objective of Wright and his crew—to take at
gunpoint and then sell multiple kilograms of cocaine—was the
same for the planned robbery and the planned drug crime; and
(3) that all of the predicate offenses supporting the § 924(c) count
“were so inextricably intertwined” that no reasonable jury could
have convicted Wright of using and carrying the firearm in relation
to only one of them. See id. at 1289-90. Moreover, Wright does
not cite any record evidence allowing us to find the offenses are
separate, nor did he offer a theory of defense at trial that would
have permitted the jury to do so. See id. at 1290. And, because of
the district court’s unanimity instruction, we know that the jury
unanimously agreed on the “way” in which Wright committed his
§ 924(c) offense, i.e., the predicates. See id. at 1291. In short, “the
tightly bound factual relationship of the predicate offenses
precludes [Wright] from showing a substantial likelihood that the
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jury relied solely on” the Hobbs Act conspiracy predicate to convict
him of Count 4. See id. at 1291. 7
Further, for the same reasons, Wright cannot establish that
he was actually innocent of his § 924(c) offense. To show actual
innocence, Wright would have to show that no reasonable juror
would have concluded he possessed a firearm in furtherance of
“any of the valid predicate offenses.” Id. at 1292. And, as in
Granda, the fact that Wright’s invalid predicate is “inextricably
intertwined” with his valid predicates “makes it impossible” for
him to make such a showing. See id.; see also Parker, 993 F.3d at
1263 (following Granda and concluding Parker could not show
actual innocence because his “predicate offenses were inextricably
intertwined so that if jurors found one applicable—which, given
7 Wright contends that for purposes of showing actual prejudice, Granda is
materially distinguishable because Granda received a concurrent sentence on
his § 924(o) conviction, while Wright received a consecutive sentence on his
§ 924(c) conviction. Wright’s claim that a consecutive sentence is inherently
prejudicial misses the point. Granda’s prejudice analysis made no mention of
the concurrent sentence and focused instead on the likely effect of the invalid
predicate on “the jury’s decision to convict.” See Granda, 990 F.3d at 1288 (“If
the absence of the invalid [Hobbs Act conspiracy] predicate would not likely
have changed the jury’s decision to convict, Granda has not suffered actual
prejudice.”).
We further note that Wright’s Davis claim is not a challenge to an
extended prison term, such as a career offender designation under the
Sentencing Guidelines or an armed career criminal designation under the
ACCA, but to the validity of his conviction. Thus, contrary to Wright’s
assertion, Wright’s consecutive sentence is not material to the prejudice
inquiry here.
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18 Opinion of the Court 20-14869
their guilty verdicts on Counts 4 and 5, we know they did—they
had to reach the same conclusion with respect to the others”).
For purposes of preserving the issue for further review,
Wright contends Granda is wrongly decided and that, under a
proper reading of Bousley v. United States, 523 U.S. 614, 118 S. Ct.
1604 (1998), he needed to show only legal innocence, not factual
innocence, to overcome his procedural default. As Wright
acknowledges, however, we are bound by Granda. See United
States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (explaining
that under our prior panel precedent rule, the holding of a prior
panel is binding on all subsequent panels unless or until it is
overruled or is undermined to the point of abrogation by this Court
sitting en banc or by the Supreme Court).
For these reasons and given our binding precedent, we
conclude Wright has not shown either cause and prejudice or
actual innocence to overcome the procedural default of his Davis
claim.
E. Wright’s Claim Loses on the Merits
Even if Wright’s Davis claim were not procedurally
defaulted, Granda and our subsequent decisions applying Granda
compel us to conclude alternatively that it fails on the merits.
A § 2255 movant is entitled to relief on a Davis claim only if
he can show that his § 924(c) conviction is supported solely by a
predicate crime of violence under § 924(c)(3)(B)’s residual clause.
See In re Hammoud, 931 F.3d 1032, 1041 (11th Cir. 2019) (citing
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20-14869 Opinion of the Court 19
Beeman v. United States, 871 F.3d 1215, 1222-25 (11th Cir. 2017);
In re Cannon, 931 F.3d 1236, 1243 (11th Cir. 2019) (same).
In Granda, we held that, notwithstanding procedural
default, the harmless-error standard mandates that collateral relief
for a Davis claim is appropriate only if the court has “grave doubt”
about whether a trial error had “substantial and injurious effect or
influence” in determining the verdict. 990 F.3d at 1292 (quoting
Davis v. Ayala, 576 U.S. 257, 267-68, 135 S. Ct. 2187, 2197-98
(2015)). Applying the harmlessness standard in Brecht v.
Abrahamson, 507 U.S. 619, 113 S. Ct. 1710 (1993), the Granda
Court held that “the court may order relief” for a Davis error “only
if the error resulted in actual prejudice” to the petitioner. Id.
(noting that Brecht does not impose a burden of proof and that the
reviewing court instead must “ask directly” whether the error
substantially influenced the jury’s verdict). 8
8 The Granda Court rejected several arguments against applying Brecht,
including: (1) that it is improper to consider whether alternative valid
predicates supplied the basis for the conviction based on Stromberg v.
California, 283 U.S. 359, 51 S. Ct. 532 (1931), and Parker v. Sec’y, Dep’t of
Corrs., 331 F.3d 764 (11th Cir. 2003); and (2) that, in Davis cases, courts must
apply a “categorical approach” to a § 924(c) conviction and assume that the
conviction rested on the invalid predicate to avoid impermissible judicial
factfinding prohibited by Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151
(2013). See Granda, 990 F.3d at 1293-96. To the extent Wright raises these
arguments in his appeal, they are foreclosed by Granda. See Archer, 531 F.3d
at 1435.
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20 Opinion of the Court 20-14869
On this record, we have no such “grave doubt” about
whether Wright’s § 924(c) conviction rested on an invalid ground.
The jury unanimously found Wright guilty of all three predicate
crimes. And, as already discussed, all three predicate crimes were
inextricably intertwined as they stemmed from the same plan and
attempt to rob cocaine from a drug dealer’s stash house using
firearms. See id. at 1293; see also Parker, 993 F.3d at 1265 (holding
that the record made clear that if the jury relied on the invalid
Hobbs Act conspiracy predicate, it also relied on the valid drug
trafficking predicates because they were inextricably intertwined
and therefore any error was harmless); Foster v. United States, 996
F.3d 1100, 1107 (11th Cir. 2021) (applying Parker and concluding,
on virtually identical facts to those found in Wright’s case, that the
jury “could not have found that Foster’s gun use or possession . . .
was connected to his conspiracy to rob the stash house without also
finding at the same time that they were connected to his conspiracy
and attempt to possess with intent to distribute the cocaine he
planned to rob from the same stash house” and thus “the inclusion
of an invalid predicate offense in the indictment and jury
instructions was harmless”).
The record establishes that Wright was actively involved in
the planning of, and attempt to commit, the armed stash-house
robbery. Specifically, Wright met with the undercover agent
several times to plan the stash-house robbery; knew the stash
house had armed guards; knew that they needed an experienced
robbery crew and firearms in order to steal the cocaine from the
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20-14869 Opinion of the Court 21
stash house; intended to divide the 20 to 30 kilograms of cocaine
amongst the crew after the robbery; and had loaded firearms,
gloves, and a ski mask in the vehicle with him while he was riding
to what he believed to be the stash house to commit the robbery.
Based on these facts, a reasonable jury could not have found that
Wright committed the § 924(c) firearm offense in relation to the
Hobbs Act conspiracy without also finding that he committed the
§ 924(c) firearm offense in relation to the drug trafficking crimes.
We therefore do not have a grave doubt that Wright’s § 924(c)
conviction rested on only the invalid Hobbs Act conspiracy
predicate, despite the jury’s general verdict. As such, Wright
cannot establish actual prejudice, and the inclusion of the invalid
Hobbs Act conspiracy predicate in Count 4 of his indictment and
in the jury instructions was harmless.
III. CONCLUSION
For the reasons discussed above, Wright cannot establish
that he is entitled to collateral relief on his Davis claim. We
recognize that the district court did not have the benefit of Granda
or our subsequent decisions applying Granda when it granted
Wright’s § 2255 motion. Nonetheless, in light of Granda, the
district court reversibly erred when it concluded that Wright had
demonstrated cause and prejudice to overcome the procedural
default of his Davis claim and that the Davis error was not
harmless. Accordingly, we reverse the district court’s order
granting Wright’s § 2255 motion and on remand the district court
shall deny Wright’s § 2255 motion.
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22 Opinion of the Court 20-14869
REVERSED and REMANDED.
Iramm Wright v. United States
Combined Opinion