record no. 15-276 in re creadell hubbard, movant’s …

IN THEUNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUITRecord No. 15-276

IN RE CREADELL HUBBARD,Movant.

MOVANT’S OPENING BRIEFIN SUPPORT OF MOTION FOR AUTHORIZATION

PURSUANT TO 28 U.S.C. § 2255(h)(2)

Paul K. Sun, Jr. Jennifer P. May-ParkerKelly Margolis Dagger Office of the United StatesEllis & Winters LLP AttorneyPost Office Box 33550 310 New Bern AvenueRaleigh, North Carolina 27636 Suite 800(919) 865-7000 Raleigh, North Carolina 27601

(919) 856-4530

Counsel for Movant Creadell Counsel for Respondent theHubbard United States of America

Appeal: 15-276 Doc: 13-1 Filed: 11/17/2015 Pg: 1 of 36

TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE ISSUE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

WHETHER MR. HUBBARD IS ENTITLED TO AN ORDERAUTHORIZING THE DISTRICT COURT TO CONSIDER HIS SECOND28 U.S.C. § 2255 MOTION BECAUSE IT CONTAINS A NEW RULE OFCONSTITUTIONAL LAW, MADE RETROACTIVE TO CASES ONCOLLATERAL REVIEW BY THE SUPREME COURT, THAT WASNOT PREVIOUSLY AVAILABLE?

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. JOHNSON ESTABLISHED A NEW RULE OF CONSTITUTIONALLAW, MADE RETROACTIVE BY THE SUPREME COURT,THAT WAS PREVIOUSLY UNAVAILABLE. . . . . . . . . . . . . . . . . 4

A. Johnson Announced A New Rule.. . . . . . . . . . . . . . . . . . . . . . . 6

B. Johnson’s New Rule Is Constitutional In Nature.. . . . . . . . . . . 7

C. The Supreme Court Has Made Johnson Retroactive To CasesOn Collateral Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. Johnson’s New Rule Of Constitutional Law Was PreviouslyUnavailable To Mr. Hubbard.. . . . . . . . . . . . . . . . . . . . . . . . . 13

ii


II. MR. HUBBARD IS ENTITLED TO RELIEF UNDER § 2255BECAUSE JOHNSON INVALIDATED HIS § 924(c) CONVICTIONAND RENDERED HIS CAREER OFFENDER SENTENCEUNLAWFUL.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

A. Under Johnson, Mr. Hubbard Is Actually Innocent Of CarryingA Firearm During A Crime Of Violence... . . . . . . . . . . . . . . . 15

1. The residual clause of § 924(c)(3)(B) isunconstitutionally vague under the rule announced inJohnson.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

2. Armed bank robbery is not a crime of violence under theforce clause of § 924(c)(3)(A).. . . . . . . . . . . . . . . . . . . 20

a. Section 2113(a) does not have as an element the use, attempted use, or threatened use of physical force. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

b. Section 2113(d) does not have as an element the use, attempted use, or threatened use of physical force. . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. Under Johnson, Mr. Hubbard Is Not A Career Offender.. . . . 25

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

iii


TABLE OF AUTHORITIESCASES

Chaidez v. United States, 133 S. Ct. 1103 (2013).. . . . . . . . . . . . . . . . . . . . . . . . . . 6

Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). . . . . . . . . . . . . . . . . 18, 19, 25, 26

Graham v. Florida, 560 U.S. 48 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

In re Anthony Williams, – F.3d –, 2015 WL 7074261 (5th Cir. 2015).. . . . . . . 7, 12

In re Billy Williams, 330 F.3d 277 (4th Cir. 2003). . . . . . . . . . . . . . . . . 5, 13, 14, 16

In re Evans, 449 F. App’x 284 (4th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

In re Gieswein, 802 F.3d 1143 (10th Cir. 2015). . . . . . . . . . . . . . . . . . . . 6, 7, 12-13

In re Rivero, 797 F.3d 986 (11th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 13

In re Vassell, 751 F.3d 267 (4th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 14

James v. United States, 550 U.S. 192 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Johnson v. United States, 135 S. Ct. 2551 (2015). . . . . . . . . . . . . . . . . . . in passim

Leocal v. Ashcroft, 543 U.S. 1 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . 22

McLaughlin v. United States, 476 U.S. 16 (1986). . . . . . . . . . . . . . . . . . . . . . . . . 24

Pakala v. United States, 804 F.3d 139 (1st Cir. 2015) . . . . . . . . . . . . . . . . . 7-8, 12

Penry v. Lynaugh, 492 U.S. 302 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Price v. United States, 795 F.3d 731 (7th Cir. 2015). . . . . . . . . . . . . . . . . in passim

iv


Reliford v. United States, No. 15-3224 (8th Cir. Oct. 16, 2015). . . . . . . . . . . . . . 12

San-Miguel v. Dove, 291 F.3d 257 (4th Cir. 2002).. . . . . . . . . . . . . . . . . . . . . . . . 8

Saffle v. Parks, 494 U.S. 484 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Schriro v. Summerlin, 542 U.S. 348 (2004). . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11

Sykes v. United States, 131 S. Ct. 2267 (2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Striet v. United States, No. 15-72506 (9th Cir. Aug. 25, 2015). . . . . . . . . . . . . . . 12

Teague v. Lane, 489 U.S. 288 (1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tyler v. Cain, 533 U.S. 656 (2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

United States v. Adkins, 937 F.2d 947 (4th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . 23

United States v. Aragon, 983 F.2d 1306 (4th Cir. 1993). . . . . . . . . . . . . . . . . . . . 19

United States v. Avila, 770 F.3d 1100 (4th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . 17

United States v. Ayala, 601 F.3d 256 (4th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . 19

United States v. Bennett, 675 F.2d 596 (4th Cir. 1982). . . . . . . . . . . . . . . . . . . . . 24

United States v. Fuertes, – F.3d –, 2015 WL 4910113 (4th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 20

United States v. Gilmore, 282 F.3d 398 (6th Cir. 2002).. . . . . . . . . . . . . . . . . . . . 22

United States v. Gomez, 690 F.3d 194 (4th Cir. 2012).. . . . . . . . . . . . . . . . . . . . . 21

United States v. Headspeth, 852 F.2d 753 (4th Cir. 1988). . . . . . . . . . . . . . . . . . . 19

v


United States v. Hubbard, No. 89-5146, 1990 WL 194520 (4th Cir. Dec. 10, 1990), cert. denied, 499 U.S. 969 (1991).. . . . . 2, 6, 17, 25

United States v. Hubbard, No. 98-6201, 1998 WL 558737(4th Cir. Aug. 28, 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Hubbard, No. 99-7147, 2000 WL 328084(4th Cir. Mar. 29, 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 13

United States v. Hudson, 673 F.3d 263 (4th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . 6

United States v. Jarmon, 596 F.3d 228 (4th Cir. 2010).. . . . . . . . . . . . . . . . . . . . . 17

United States v. Ketchum, 550 F.3d 363 (4th Cir. 2008). . . . . . . . . . . . . . . . . . . . 21

United States v. Linder, 100 F. App’x 164 (4th Cir. 2004). . . . . . . . . . . . . . . . . . 17

United States v. Martin, 215 F.3d 470 (4th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . 17

United States v. Montes-Flores, 736 F.3d 357 (4th Cir. 2013)). . . . . . . . . 17, 21, 22

United States v. Naughton, – F. App’x –, 2015 WL 5147399 (4th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Prater, 766 F.3d 501 (6th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . 26

United States v. Royal, 731 F.3d 333 (4th Cir. 2013).. . . . . . . . . . . . . . . . . . . . . . 22

United States v. Scott, No. 15-291 (4th Cir. Sept. 9, 2015). . . . . . . . . . . . . . . . . . . 8

United States v. Thompson, 891 F.2d 507 (4th Cir. 1989). . . . . . . . . . . . . . . . . . . 17

United States v. Vann, 660 F.3d 771 (4th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . 23

United States v. White, 571 F.3d 365 (4th Cir. 2009).. . . . . . . . . . . . . . . . . . . . . . 19

United States v. Whitfield, 695 F.3d 288 (4th Cir. 2012). . . . . . . . . . . . . . . . . . . . 24

vi


OTHER AUTHORITIES

18 U.S.C. § 16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim

18 U.S.C. § 924. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim

18 U.S.C. § 2113. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim

28 U.S.C. § 2244. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim

28 U.S.C. § 2254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

28 U.S.C. § 2255. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . in passim

U.S.S.G. § 4B1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

U.S.S.G. § 4B1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 25, 26

Fed. Jury Prac. & Instr. § 57:06. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Joint Emergency Motion, Reliford v. United States, No. 15-3224 (8th Cir. Oct. 6, 2015) (Exhibit 3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Joint Emergency Motion, Striet v. United States, No. 15-72506 (9th Cir. Aug. 12, 2015) (Exhibit 5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Joint Emergency Motion, United States v. Scott, No. 15-291 (4th Cir. Sept. 9, 2015) (Exhibit 1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9

Movant’s Brief, In re Evans, 2011 WL 3645666 (4th Cir. Aug. 19, 2011). . . . . . 10

vii


STATEMENT OF JURISDICTION

This Court has jurisdiction over this motion for an order authorizing the

district court to consider a second or successive 28 U.S.C. § 2255 motion pursuant

to 28 U.S.C. §§ 2244(b)(3)(A), and 2255(h)(2).

STATEMENT OF THE ISSUE

WHETHER MR. HUBBARD IS ENTITLED TO AN ORDER AUTHORIZINGTHE DISTRICT COURT TO CONSIDER HIS SECOND 28 U.S.C. § 2255MOTION BECAUSE IT CONTAINS A NEW RULE OF CONSTITUTIONALLAW, MADE RETROACTIVE TO CASES ON COLLATERAL REVIEW BYTHE SUPREME COURT, THAT WAS NOT PREVIOUSLY AVAILABLE?

STATEMENT OF THE CASE

On 19 July 1988, Creadell Hubbard was charged by indictment in the

United States District Court for the Eastern District of North Carolina with (1) one

count of armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (“Count 1”);

(2) one count of carrying a firearm during a crime of violence, in violation of 18

U.S.C. § 924(c)(1) (“Count 2”); (3) one count of possessing stolen money, in

violation of 18 U.S.C. § 2113(c), (d) (“Count 3”); and (4) one count of conspiracy

to possess stolen money, in violation of 18 U.S.C. § 2113(c), (d) (“Count 4”). J.A.

9-13. The case was tried to a jury, and Mr. Hubbard was found guilty of all four

counts of the indictment. J.A. 5, 14.

At sentencing, the district court concluded that Mr. Hubbard was a career

offender under U.S.S.G. § 4B1.1 because he had two prior felony convictions of


crimes of violence. See United States v. Hubbard, No. 89-5146, 1990 WL

194520, at *2 (4th Cir. Dec. 10, 1990) (per curiam), cert. denied, 499 U.S. 969

(1991). The district court relied on Mr. Hubbard’s prior convictions of second-

degree murder and Kentucky third-degree burglary as career offender predicates.

See id. at *3. The district court imposed a sentence of 327 months’ imprisonment

on Count 1, and a consecutive term of 60 months’ imprisonment on Count 2. J.A.

15. Counts 3 and 4 merged with Count 1 for sentencing purposes. J.A. 15. The

district court also imposed a three-year term of supervised release. J.A. 16.

Mr. Hubbard appealed, contending that the district court erred by denying

his motion to sever his trial from that of his co-defendants, that the evidence was

insufficient to support his convictions, and that he was improperly sentenced as a

career offender, because Kentucky third-degree burglary was not a crime of

violence. See United States v. Hubbard, 1990 WL 194520, at *1-3. This Court

affirmed Mr. Hubbard’s conviction and sentence. Id. at *2, *4; J.A. 6.

Mr. Hubbard filed a 28 U.S.C. § 2255 motion on 28 April 1997. J.A. 7.

The district court granted the Government’s motion to dismiss the § 2255 motion.

J.A. 7. This Court granted a certificate of appealability, and vacated the judgment

of the district court. See United States v. Hubbard, No. 98-6201, 1998 WL

558737, at *1 (4th Cir. Aug. 28, 1998) (per curiam); J.A. 8. On remand, the

2


district court granted the Government’s motion for summary judgment. J.A. 8.

This Court dismissed Mr. Hubbard’s subsequent appeal. See United States v.

Hubbard, No. 99-7147, 2000 WL 328084, at *1 (4th Cir. Mar. 29, 2000) (per

curiam); J.A. 8.

On 31 August 2015, Mr. Hubbard filed a pro se motion with this Court

seeking an order authorizing the district court to consider a second § 2255 motion,

and citing the Supreme Court’s 26 June 2015 decision in Johnson v. United States,

135 S. Ct. 2551 (2015). (Dkt. No. 2-1). Undersigned counsel was appointed to

represent Mr. Hubbard pursuant to the Criminal Justice Act. (Dkt. No. 4).

SUMMARY OF ARGUMENT

Pursuant to 28 U.S.C. §§ 2244(b)(3)(C) and 2255(h)(2), and Rule 9 of the

Rules Governing § 2255 Proceedings, Creadell Hubbard moves this Court for an

order authorizing the district court to consider his second § 2255 motion. As

shown below, this case meets the requirements for certifying a second § 2255

motion because Johnson announced a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was not

previously available. See 28 U.S.C. § 2255(h)(2). Mr. Hubbard will demonstrate

in his second § 2255 motion that he is entitled to relief under Johnson’s rule on

two grounds: (1) that he is actually innocent of his conviction of carrying a

3


firearm during a crime of violence, because armed bank robbery is not a predicate

crime of violence under Johnson; and (2) that he was improperly sentenced as a

career offender because his prior conviction of Kentucky third-degree burglary is

not a predicate crime of violence under Johnson. Therefore, Mr. Hubbard

respectfully requests that the Court grant this motion and authorize the district

court to consider Mr. Hubbard’s second § 2255 motion.

ARGUMENT

I. JOHNSON ESTABLISHED A NEW RULE OF CONSTITUTIONALLAW, MADE RETROACTIVE BY THE SUPREME COURT, THAT WASPREVIOUSLY UNAVAILABLE.

A federal prisoner may challenge an unlawful sentence by filing a motion

with the district court “to vacate, set aside or correct the sentence.” Id. § 2255(a).

“Before presenting a second or successive motion, the moving party must obtain

an order from the appropriate court of appeals authorizing the district court to

consider the motion.” R. § 2255 Proc. 9. As relevant here, the motion “must be

certified as provided in section 2244” by a panel of this Court “to contain . . . 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); see

In re Vassell, 751 F.3d 267, 268-69 (4th Cir. 2014). Authorization is proper where

the movant makes a prima facie showing that the second or successive motion

4


satisfies that standard. See 28 U.S.C. § 2244(b)(3)(C); Vassell, 751 F.3d at 269

(noting that § 2255(h) “incorporates the prefiling authorization procedure

established in § 2244 for state prisoners’ second or successive habeas corpus

applications”); see also In re Billy Williams, 330 F.3d 277, 282 (4th Cir. 2003)

(concluding that “prima facie showing” contemplated in § 2244(b)(3)(C) relates to

authorization requirements, “not the possibility that the claims will ultimately

warrant a decision in favor of the applicant”).

Earlier this year, the Supreme Court held in Johnson that the Due Process

Clause prohibits imposing an enhanced punishment based on a judicial

determination that the defendant’s prior felony conviction is one that “otherwise

involves conduct that presents a serious potential risk of physical injury to

another.” Johnson v. United States, 135 S. Ct. at 2555-57 (quoting 18 U.S.C.

§ 924(e)(2)(B)(ii)). The Court held that “the indeterminacy of the wide-ranging

inquiry required by the residual clause [of § 924(e)(2)(B)(ii)] both denies fair

notice to defendants and invites arbitrary enforcement by judges.” Id. at 2557.

Therefore, the Court struck down the residual clause of the Armed Career

Criminal Act as unconstitutionally vague. Id. at 2563. As shown below, Johnson

announced (1) a new rule, (2) constitutional in nature, (3) that the Supreme Court

has made retroactive to cases on collateral review, and (4) that was previously

5


unavailable. See Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015); 28

U.S.C. § 2255(h)(2).

A. Johnson Announced A New Rule.

“‘[A] case announces a new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became final.’” Chaidez v. United

States, 133 S. Ct. 1103, 1107 (2013) (quoting Teague v. Lane, 489 U.S. 288, 301

(1989)). Because Johnson’s rule was not dictated by existing precedent when Mr.

Hubbard’s conviction became final in 1991, it is a new rule. See United States v.

Hubbard, 1990 WL 194520 (affirming convictions and sentence on direct appeal),

cert. denied, 499 U.S. 969 (1991).

Prior to Johnson, “the Supreme Court ha[d] consistently declined to find the

residual clause [of ACCA] void for vagueness.” United States v. Hudson, 673

F.3d 263, 268 (4th Cir. 2012); see James v. United States, 550 U.S. 192, 210 n.6

(2007) (“[W]e are not persuaded by Justice Scalia’s suggestion . . . that the

residual provision is unconstitutionally vague.”); see also Sykes v. United States,

131 S. Ct. 2267, 2277 (2011) (applying residual clause to hold that Indiana offense

of fleeing from law enforcement officer was violent felony over dissent

contending that residual clause was unconstitutionally vague). In Johnson, “[t]he

Court thus applied a constitutional principle in a decision that was contrary to,

6


rather than dictated by, its own precedent.” In re Gieswein, 802 F.3d 1143, 1146

(10th Cir. 2015). Therefore, Johnson’s rule is new. See Price v. United States,

795 F.3d at 732 (“Johnson announces a new rule: It explicitly overrules the line

of Supreme Court decisions that began with Begay, and it broke new ground by

invalidating a provision of ACCA.”); accord In re Anthony Williams, – F.3d –,

2015 WL 7074261, at *1 (5th Cir. 2015); Gieswein, 802 F.3d at 1146; In re

Rivero, 797 F.3d 986, 989 (11th Cir. 2015).

B. Johnson’s New Rule Is Constitutional In Nature.

The Johnson Court held “that imposing an increased sentence under the

residual clause of the Armed Career Criminal Act violates the Constitution’s

guarantee of due process.” Johnson v. United States, 135 S. Ct. at 2563.

“Johnson rests on the notice requirement of the Due Process Clause of the Fifth

Amendment, and thus the new rule that it announces is one of constitutional law.”

Price v. United States 795 F.3d at 733-34; accord Anthony Williams, 2015 WL

7074261, at *1 (“Joining the four other circuits that have decided this issue, we

hold that Johnson announced a new rule of constitutional law.”); Gieswein, 802

F.3d at 1146 (“Johnson announced a new rule of constitutional law.”); Rivero, 797

F.3d at 989 (“Johnson announced a new substantive rule of constitutional

law . . . .”); Pakala v. United States, 804 F.3d 139, 140 (1st Cir. 2015) (per

7


curiam) (“[W]e certify that Pakala has made the requisite prima facie showing that

the new constitutional rule announced in Johnson qualifies as a basis for habeas

relief on a second or successive petition . . . .” (internal quotation omitted)).

C. The Supreme Court Has Made Johnson Retroactive To Cases OnCollateral Review.

The Supreme Court may make a new rule of constitutional law retroactive to

cases on collateral review by explicitly declaring the rule retroactive, or through a

combination of holdings that “necessarily dictate the retroactivity of the new rule.”

Tyler v. Cain, 533 U.S. 656, 666 (2001). When the Supreme Court holds in one

case that “a particular type of rule applies retroactively to cases on collateral

review,” and later holds that “a given rule is of that particular type,” the Court has

made the rule retroactive to cases on collateral review. Id. at 668-69 (O’Connor,

J., concurring); accord San-Miguel v. Dove, 291 F.3d 257, 260 (4th Cir. 2002)

(new rule is retroactive when “‘the Court’s holdings logically permit no other

conclusion than that the rule is retroactive’” (quoting Tyler, 533 U.S. at 669

(O’Connor, J., concurring))). As the Government has argued in another case

pending before this Court, the Supreme Court has made Johnson’s rule retroactive

because the Court has declared Johnson’s particular type of rule—a substantive

one—retroactively applicable on collateral review. See Joint Emergency Motion,

8


United States v. Scott, No. 15-291 (4th Cir. Sept. 9, 2015) (arguing that movant

sentenced under ACCA “made at least a prima facie showing that the Johnson rule

has been ‘made retroactive to cases on collateral review by the Supreme Court’”

(quoting § 2255(h)(2))) (attached as Exhibit 1).

The Supreme Court has held that new substantive rules, including

“constitutional determinations that place particular conduct or persons covered by

[a] statute beyond the [Government’s] power to punish,” are retroactive to cases

on collateral review. See Schriro v. Summerlin, 542 U.S. 348, 351-52 (2004); see

also Tyler, 533 U.S. at 669 (O’Connor, J., concurring) (“When the Court holds as

a new rule in a subsequent case that a particular species of primary, private

individual conduct is beyond the power of the criminal lawmaking authority to

proscribe, it necessarily follows that this Court has ‘made’ that new rule

retroactive to cases on collateral review.”). “Such rules apply retroactively

because they necessarily carry a significant risk that a defendant stands convicted

of an act that the law does not make criminal or faces a punishment that the law

cannot impose upon him.” Summerlin, 542 U.S. at 352 (internal quotation

omitted).

Following that framework, this Court has previously authorized the

consideration of a successive § 2255 motion based on a Supreme Court case that,

9


like Johnson, prohibited a particular punishment for a class of persons. See In re

Evans, 449 F. App’x 284 (4th Cir. 2011) (per curiam). In Evans, a federal

prisoner sought authorization for the district court to consider a successive § 2255

motion based on the Supreme Court’s holding in Graham v. Florida, 560 U.S. 48

(2010), that the Eighth Amendment forbids a sentence of life without parole for a

juvenile convicted of a non-homicide offense. See Movant’s Brief, Evans, 2011

WL 3645666, at *5 (4th Cir. Aug. 19, 2011). Mr. Evans argued that the Supreme

Court had made Graham retroactive to cases on collateral review because Graham

announced a substantive rule of constitutional law that prohibited “‘a certain

category of punishment for a class of defendants because of their status or

offense.’” Id. at *15 (quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989)). This

Court agreed, concluding that Mr. Evans had “made a ‘prima facie showing’ that

his ‘claim relies on a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.’” Evans,

449 F. App’x at 284 (quoting § 2244(b)(3)(C), (2)(A)).

The Johnson Court likewise announced a new substantive rule of

constitutional law: “In deciding that the residual clause is unconstitutionally

vague, the Supreme Court prohibited ‘a certain category of punishment for a class

of defendants because of their status.’” Price v. United States, 795 F.3d at 734

10


(quoting Saffle v. Parks, 494 U.S. 484, 494 (1990)); see Summerlin, 542 U.S. at

352. Specifically, the Court prohibited imposing an enhanced punishment because

a defendant has a prior felony conviction that, in the sentencing court’s view,

“otherwise involves conduct that presents a serious potential risk of physical

injury to another.” See Johnson v. United States, 135 S. Ct. at 2555-56 (quoting

§ 924(e)(2)(B)(ii)). Therefore, “[a] defendant who was sentenced under the

residual clause necessarily bears a significant risk of facing ‘a punishment that the

law cannot impose upon him.’” Price v. United States, 795 F.3d at 734 (quoting

Summerlin, 542 U.S. at 352)).

Johnson’s rule also “necessarily carr[ies] a significant risk that a

defendant stands convicted of an act that the law does not make criminal.” See

Summerlin, 542 U.S. at 352. For example, federal law criminalizes carrying a

firearm during a “crime of violence.” 18 U.S.C. § 924(c). Johnson establishes

that certain convictions cannot be considered crimes of violence consistent with

the Due Process Clause, and thus alters what conduct § 924(c) makes criminal.

See infra section II.A.1 (showing that Johnson’s rule invalidates § 924(c)(3)(B)

residual clause). A defendant stands convicted of an act that the law does not

make criminal where, as here, the defendant has been convicted under § 924(c) for

carrying a firearm in connection with some crime that, under Johnson, cannot

11


constitutionally be considered a crime of violence. See Summerlin, 542 U.S. at

352; see also infra section II.A.2 (showing that armed bank robbery is not

predicate crime of violence under Johnson).

Because the Supreme Court has declared a “particular type of rule”

retroactive, and Johnson announced a rule of that type, the Supreme Court has

made Johnson retroactive to cases on collateral review. See Price v. United States,

795 F.3d at 734-35 (“There is no escaping the logical conclusion that the

[Supreme] Court itself has made Johnson categorically retroactive to cases on

collateral review.”); see also Pakala v. United States, 804 F.3d at 140 (authorizing

successive § 2255 motion based on Johnson); Reliford v. United States, No. 15-

3224 (8th Cir. Oct. 16, 2015) (same) (attached as Exhibit 2) ; Striet v. United1

States, No. 15-72506 (9th Cir. Aug. 25, 2015) (same) (attached as Exhibit 4). But2

see Anthony Williams, 2015 WL 7074261, at *2 (denying pro se motion for

authorization on ground that Johnson’s rule is not substantive); Gieswein, 802

F.3d at 1146, 1148-49 (denying pro se motion for authorization on ground that

The basis for the Eighth Circuit’s order in Reliford v. United States is1

reflected in the parties’ Joint Emergency Motion, No. 15-3224 (8th Cir. Oct. 6,2015) (attached as Exhibit 3).

The basis for the Ninth Circuit’s order in Striet v. United States is reflected2

in the parties’ Joint Emergency Motion, No. 15-72506 (9th Cir. Aug. 12, 2015)(attached as Exhibit 5).

12


Supreme Court has not made Johnson retroactive on collateral review); Rivero,

797 F.3d at 989 (denying pro se motion for authorization while “agree[ing] that

Johnson announced a new substantive rule of constitutional law,” on ground that

Supreme Court has not made rule retroactive on collateral review). Therefore, Mr.

Hubbard’s motion satisfies the retroactivity requirement of § 2255(h)(2).

D. Johnson’s New Rule Of Constitutional Law Was PreviouslyUnavailable To Mr. Hubbard.

The rule announced in Johnson was previously unavailable to Mr. Hubbard

because, “[u]ntil Johnson was decided, any successive collateral attack would

have been futile.” See Price v. United States, 795 F.3d at 733. The district court

denied Mr. Hubbard’s first § 2255 motion in 1999, and, finding no reversible

error, this Court dismissed Mr. Hubbard’s appeal from the district court’s order.

United States v. Hubbard, 2000 WL 328084, at *1. At that time, and until

Johnson was decided, the Supreme Court rejected the contention that the residual

clause was unconstitutionally vague. See supra section I.A.

For these reasons, Mr. Hubbard has made a prima facie showing that his

§ 2255 motion meets the requirements for authorizing the consideration of a

successive motion. See Billy Williams, 330 F.3d at 282.

13


II. MR. HUBBARD IS ENTITLED TO RELIEF UNDER § 2255 BECAUSEJOHNSON INVALIDATED HIS § 924(c) CONVICTION ANDRENDERED HIS CAREER OFFENDER SENTENCE UNLAWFUL.

A movant seeking authorization of a second or successive § 2255 motion

need not establish the merits of the motion at the authorization stage. See Billy

Williams, 330 F.3d at 282. Determining whether a movant has satisfied the

standard for authorizing a second or successive motion “may entail a cursory

glance at the merits,” but “the focus of [this Court’s] inquiry must always remain

on the § 2244(b)(2) standards.” Id. As shown above, Johnson satisfies those3

standards. See supra section I. As shown below, authorization is proper because

Mr. Hubbard’s second § 2255 motion will “contain” the new rule announced in

Johnson. See 28 U.S.C. § 2255(h).

In the district court, Mr. Hubbard intends to show that he is entitled to relief

under § 2255 on two Johnson-based grounds. First, Mr. Hubbard is actually

innocent of carrying a firearm during a crime of violence in violation of § 924(c),

because his predicate armed bank robbery conviction is not a crime of violence

Section 2244(b)(2) provides the standard for a successive § 2254 motion,3

including the identical test for a “new rule of constitutional law, made retroactiveto cases on collateral review by the Supreme Court, that was previouslyunavailable,” set forth in § 2255(h)(2), which expressly incorporates § 2244. SeeVassell, 751 F.3d at 269; 28 U.S.C. § 2255(h) (requiring certification “as providedin section 2244”).

14


under Johnson. Second, Mr. Hubbard is not a career offender, because Kentucky

third-degree burglary is not a predicate crime of violence under Johnson.

A. Under Johnson, Mr. Hubbard Is Actually Innocent Of Carrying AFirearm During A Crime Of Violence.

Section 924(c) provides that “any person who, during and in relation to any

crime of violence . . . uses or carries a firearm” shall be sentenced to a mandatory

minimum of five years’ imprisonment, to run consecutively with any other term of

imprisonment imposed. 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). 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.” Id.

§ 924(c)(3)(A), (B).

Mr. Hubbard was convicted under § 924(c) for allegedly carrying a firearm

during the armed bank robbery alleged in Count 1 of his indictment. See J.A. 10.

Because the rule announced in Johnson invalidates the residual clause of

§ 924(c)(3)(B), and armed bank robbery does not satisfy the test for a crime of

violence set out in the force clause of § 924(c)(3)(A), Mr. Hubbard is actually

innocent of carrying a firearm during a crime of violence. Therefore, Mr. Hubbard

15


is entitled to seek relief from his conviction and attendant sentence of 60 months’

imprisonment.

1. The residual clause of § 924(c)(3)(B) is unconstitutionallyvague under the rule announced in Johnson.

In declaring the residual clause of ACCA void for vagueness, the Supreme

Court announced a rule that likewise invalidates the similar residual clause of

§ 924(c)(3)(B). Therefore, under Johnson, the residual clause definition of crime4

of violence cannot be the basis of Mr. Hubbard’s § 924(c) conviction.

In Johnson, the Supreme Court concluded that “[t]wo features of [ACCA’s]

residual clause conspire[d] to make it unconstitutionally vague.” 135 S. Ct. at

2557. First, the residual clause left “grave uncertainty about how to estimate the

risk posed by a crime,” particularly because it “require[d] a court to picture the

kind of conduct that the crime involves in ‘the ordinary case,’ and to judge

whether that abstraction presents a serious potential risk of physical injury.” Id.

Second, “the residual clause [left] uncertainty about how much risk” was required.

At least twice since Johnson was decided, this Court has avoided reaching4

the constitutionality of § 924(c)(3)(B), while noting its similarity to the residualclause of ACCA. See United States v. Naughton, – F. App’x –, 2015 WL5147399, at *8 n.4 (4th Cir. 2015) (per curiam); United States v. Fuertes, – F.3d –,2015 WL 4910113, at *9 n.5 (4th Cir. 2015). Because he need only make a primafacie showing at this stage, Mr. Hubbard respectfully submits that the district courtmay address the constitutionality of § 924(c)(3)(B) in the first instance. See BillyWilliams, 330 F.3d at 282.

16


Id. at 2558. The Johnson Court acknowledged that it had tried and “failed to

establish any generally applicable test that prevents the risk comparison required

by the residual clause from devolving into guesswork and intuition.” Id. at 2559.

The Court thus held that “[i]nvoking so shapeless a provision” to enhance a

criminal defendant’s sentence “does not comport with the Constitution’s guarantee

of due process.” Id. at 2560.

The residual clause of § 924(c)(3)(B) suffers the same defects as the now-

rejected residual clause of ACCA. Although the two clauses are not identical,

they use similar “operative language.” See United States v. Martin, 215 F.3d 470,

474 n.4 (4th Cir. 2000) (noting similarity between 18 U.S.C. § 16 and U.S.S.G. §

4B1.2(a)) ; United States v. Linder, 100 F. App’x 164, 165 (4th Cir. 2004) (per5

curiam) (noting that difference between § 16(b) and current § 4B1.2(a)(2) residual

clauses is “not significant”). Both clauses require courts “to picture the kind of

To apply § 924(c)(3)(B), this Court relies on cases applying the identical5

language of § 16(b). See, e.g., United States v. Fuertes, 2015 WL 4910113, at *9. At the time Mr. Hubbard was sentenced, the career offender Guideline, U.S.S.G.§ 4B1.2, also contained that identical language because it defined “crime ofviolence” by incorporating § 16. See United States v. Hubbard, 1990 WL 194520,at *2; United States v. Thompson, 891 F.2d 507, 509 (4th Cir. 1989). Section4B1.2 has since been amended so that its definition of “crime of violence” is“substantively identical” to ACCA’s definition of “violent felony.” United Statesv. Jarmon, 596 F.3d 228, 231 n.* (4th Cir. 2010). This Court treats modern§ 4B1.2 and ACCA cases “interchangeably.” United States v. Montes-Flores, 736F.3d 357, 363 (4th Cir. 2013) (internal quotation omitted).

17


conduct that the crime involves in ‘the ordinary case,’ and to judge whether that

abstraction” presents the relevant risk. See Johnson v. United States, 135 S. Ct. at

2557; see also United States v. Avila, 770 F.3d 1100, 1107 (4th Cir. 2014)

(applying “ordinary case” analysis to § 16(b)). Like ACCA’s residual clause, the

language of § 924(c)(3)(B) offers “‘no reliable way to choose between the[]

competing accounts’ of what a crime looks like in the ordinary case.” Dimaya v.

Lynch, 803 F.3d 1110, 1116 (9th Cir. 2015) (quoting Johnson v. United States,

135 S. Ct. at 2558, and analyzing § 16(b) residual clause). Therefore,

§ 924(c)(3)(B) “leaves grave uncertainty about how to estimate the risk posed by a

crime.” See Johnson v. United States, 135 S. Ct. at 2557.

Section 924(c)(3)(B) also “leaves uncertainty about how much risk it takes

for a crime to qualify” as a crime of violence. See Johnson v. United States, 135

S. Ct. at 2558. ACCA’s residual clause asks whether an offense poses a “serious

potential risk of physical injury,” 18 U.S.C. § 924(e)(2)(B)(ii), while

§ 924(c)(3)(B) asks whether the offense poses a “substantial risk that physical

force against the person or property of another may be used.” Johnson’s rule that

ACCA’s residual clause is unconstitutionally vague is equally applicable to

§ 924(c)(3)(B), because “[m]easuring whether an offense poses a ‘substantial’ risk

. . . is no less arbitrary than measuring whether it poses a ‘serious potential’ one.”

18


Dimaya, 803 F.3d at 1116 n.9; see also id. at 1117 (“Section 16(b) gives judges no

more guidance than does the ACCA provision as to what constitutes a substantial

enough risk of force to satisfy the statute.”). The ordinary case approach

compounds the problem, because the “imprecise” standard for quantifying risk

must be applied “to a judge-imagined abstraction.” See Johnson v. United States,

135 S. Ct. at 2558.

Finally, because courts have relied on cases analyzing ACCA’s residual

clause to determine whether an offense is a crime of violence under the residual

clause of § 924(c)(3)(B), the same “guesswork and intuition” that pervade the

ACCA case law have infected the § 924(c)(3)(B) case law. See Johnson v. United

States, 135 S. Ct. at 2559; see also, e.g., United States v. Ayala, 601 F.3d at 267

(relying on United States v. White, 571 F.3d 365 (4th Cir. 2009), which applied

ACCA, to interpret residual clause of § 924(c)(3)(B)); United States v. Aragon,

983 F.2d 1306, 1314 (4th Cir. 1993) (relying on United States v. Headspeth, 852

F.2d 753 (4th Cir. 1988), which applied ACCA, to interpret residual clause of

§ 16(b)).

For these reasons, under the rule announced in Johnson, the residual clause

of § 924(c)(3)(B) is unconstitutionally vague. See DiMaya, 803 F.3d at 1107

(holding that Johnson “dictated” that § 16(b) was void for vagueness).

19


2. Armed bank robbery is not a crime of violence under the forceclause of § 924(c)(3)(A).

Mr. Hubbard was charged with, and convicted of, armed bank robbery—

taking money belonging to a bank from the person or presence of another “by

force and violence, and by intimidation,” and in the course of committing the

offense, “assault[ing] and put[ing] into jeopardy the life” of other persons “by

means and use of a dangerous weapon, that is a handgun”—in violation of 18

U.S.C. § 2113(a) and (d). J.A. 9, 14. As shown below, neither bank robbery in

violation of § 2113(a), nor armed bank robbery in violation of § 2113(d), has “as

an element the use, attempted use, or threatened use of physical force against the

person or property of another.” See 18 U.S.C. § 924(c)(3)(A). Therefore, armed

bank robbery is not a crime of violence under the force clause of § 924(c)(3)(A).

Because armed bank robbery is the alleged predicate for Mr. Hubbard’s § 924(c)

conviction, Mr. Hubbard is actually innocent of the § 924(c) charge. See, e.g.,

United States v. Fuertes, 2015 WL 4910113, at *10 (vacating § 924(c) conviction

and remanding for judgment of acquittal where alleged predicate offense was not

crime of violence).

a. Section 2113(a) does not have as an element the use,attempted use, or threatened use of physical force.

Section 2113(a) provides that “[w]hoever, by force and violence, or by

20


intimidation, takes, or attempts to take, from the person or presence of another,”

property or money belonging to or in the custody of a bank, credit union, or

savings and loan association is guilty of bank robbery. Because § 2113(a) may be

violated without the use, attempted use, or threatened use of physical force, it is

not a crime of violence under the § 924(c)(3)(A) force clause.

To determine whether an offense is a crime of violence, the Court follows a

categorical approach, looking only at the fact of conviction and the elements of the

offense. See United States v. Montes-Flores, 736 F.3d at 364. The use of “force

and violence” is not an element of § 2113(a); intimidation alone is sufficient to

sustain a conviction. See, e.g., United States v. Ketchum, 550 F.3d 363, 367 (4th

Cir. 2008) (affirming § 2113(a) conviction based on intimidation where

Government did not allege taking “by force and violence”). Intimidation may be

unintentional, see id., and therefore cannot be a “use” of physical force under

§ 924(c)(3)(A). See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (reasoning that “use”

of physical force under identical force clause of § 16(a) “naturally suggests a

higher degree of intent than negligent or merely accidental conduct”). Moreover,

intimidation need not involve the attempted or threatened use of physical force—it

“does not require proof of express threats of bodily harm,” or even “threatening

body motions.” United States v. Ketchum, 550 F.3d at 367 (internal quotation

21


omitted). “Indeed, intimidation generally may be established based on nothing

more than a defendant’s written or verbal demands to a teller . . . .” Id. Thus, a

demand for money, unaccompanied by any threat of physical force, is sufficient.

See id. & n.4 (relying on United States v. Gilmore, 282 F.3d 398, 402-03 (6th Cir.

2002), which held that “unequivocal written and verbal demands for money to

bank employees are a sufficient basis for a finding of intimidation”).

Because Mr. Hubbard’s conviction under § 2113(a) can be committed

without the use, attempted use, or threatened use of physical force, it is not

categorically a § 924(c)(3)(A) crime of violence. See, e.g., United States v.

Montes-Flores, 736 F.3d at 369 (holding that crime that could be committed with

or without force was not categorically crime of violence). “[F]orce and violence”

and “intimidation” are charged to the jury as alternative means of satisfying a

single element of the offense. See Fed. Jury Prac. & Instr. § 57:06 (“Two: The

taking was by [force and violence] [intimidation].” (brackets in original)). Those

alternative means do not render the offense divisible into bank robbery “by force

and violence” or bank robbery “by intimidation.” See Omargharib v. Holder, 775

F.3d 192, 198-99 (4th Cir. 2014); United States v. Royal, 731 F.3d 333, 341 (4th

Cir. 2013). In any event, Mr. Hubbard was charged with bank robbery “by force

and violence, and by intimidation,” J.A. 9, permitting a conviction based on

22


evidence of either means of committing the offense. See United States v. Vann,

660 F.3d 771, 773-74 (4th Cir. 2014) (en banc) (concluding that, even if offense

was divisible, court could not determine from indictment charging alternative

conduct conjunctively that one alternative was factual basis for conviction).

For these reasons, Mr. Hubbard’s § 2113(a) conviction is not a crime of

violence under the force clause of § 924(c)(3)(A).

b. Section 2113(d) does not have as an element the use,attempted use, or threatened use of physical force.

Section 2113(d) provides that a defendant who, in the course of committing

an offense in violation of § 2113(a), “assaults any person, or puts in jeopardy the

life of any person by the use of a dangerous weapon or device” is guilty of armed

bank robbery. With that additional element, armed bank robbery still does not

qualify as a crime of violence under the force clause of § 924(c)(3)(A). 6

Using a dangerous weapon or device to assault or put in jeopardy the life of

another person need not involve the “use, attempted use, or threatened use of

physical force.” See 18 U.S.C. § 924(c)(3)(A) (emphasis added). Armed bank

This Court previously observed that “[a]rmed bank robbery . . . ‘has as an6

element the use, attempted use, or threatened use of physical force against theperson or property of another.’” United States v. Adkins, 937 F.2d 947, 950 n.2(4th Cir. 1991). Whether armed bank robbery satisfied § 924(c)(3)(A)’s forceclause was not before the Adkins Court, and Mr. Hubbard respectfully contendsthat the Court’s observation in that case is neither binding nor correct.

23


robbery may be accomplished without any force at all—merely carrying or

exhibiting a firearm is sufficient to sustain a conviction under § 2113(d). See, e.g.,

United States v. Whitfield, 695 F.3d 288, 304 (4th Cir. 2012) (finding that

defendant “carried” guns during attempted bank robbery was sufficient under

§ 2113(d)); United States v. Bennett, 675 F.2d 596, 599 (4th Cir. 1982) (“A

weapon openly exhibited by a robber during a robbery is a dangerous weapon

whether loaded or unloaded, and such exhibition violates section 2113(d).”).

Therefore, to determine when § 2113(d) is satisfied, courts have engaged in

analysis that echoes the residual clause of § 924(c)(3)(B). For example, in

explaining why an unloaded gun is a dangerous weapon under § 2113(d), this

Court and the Supreme Court have focused on the risk that physical force may be

used. Compare McLaughlin v. United States, 476 U.S. 16, 17-18 (1986) (holding

that unloaded gun was dangerous weapon under § 2113 because “display of a gun

instills fear in the average citizen,” and “as a consequence, it creates an immediate

danger that a violent response will ensue”), and United States v. Bennett, 675 F.2d

at 599 (“A robber might well strike a recalcitrant teller with an unloaded rifle; a

guard or a passing policeman, seeing a rifle displayed, might well reflexively fire

his weapon, endangering robbers and bystanders alike; a threatening weapon

might well trigger precipitous action on the part of frightened or nervous bank

24


employees or bystanders.”), with 18 U.S.C. § 924(c)(3)(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”).

Because armed bank robbery is not a crime of violence under the force

clause of § 924(c)(3)(A), and the rule announced in Johnson invalidates the

residual clause of § 924(c)(3)(B), Mr. Hubbard is actually innocent of carrying a

firearm in connection with a crime of violence. See J.A. 10.

B. Under Johnson, Mr. Hubbard Is Not A Career Offender.

Mr. Hubbard is also entitled to relief from his career offender sentence

because that sentence depends on a conviction of Kentucky third-degree burglary,

which is not a crime of violence under the rule of Johnson.

At the time Mr. Hubbard was sentenced, the career offender Guideline

defined a crime of violence by reference to § 16, which contains a force clause and

a residual clause that mirror the crime of violence definition in § 924(c)(3). See

United States v. Hubbard, 1990 WL 194520, at *2 (discussing § 4B1.2); supra p.

17 n.3. As shown above, under the rule announced in Johnson, the residual clause

of § 924(c)(3)(B) unconstitutionally vague. See supra section II.A.1. For the

same reasons, the identical residual clause of § 16(b) is also void for vagueness.

See id.; Dimaya, 803 F.3d at 1115 (“Johnson dictates that § 16(b) be held void for

25


vagueness.”).

As this Court’s opinion affirming Mr. Hubbard’s career offender sentence

on direct appeal illustrates, Kentucky third-degree burglary is not a crime of

violence under the force clause of § 16(a). See United States v. Hubbard, 1990

WL 194520, at *2 (relying on § 16(b) residual clause to conclude that Mr.

Hubbard’s burglary conviction was crime of violence). Under Kentucky law, “[a]

person is guilty of a burglary in the third degree when, with the intent to commit a

crime, he knowingly enters or remains unlawfully in a building.” Id. at *3

(quoting Ky. Rev. Stat. § 511.010). That offense does not have “as an element the

use, attempted use, or threatened use of physical force against the person or

property of another.” 18 U.S.C. § 16(a); see United States v. Prater, 766 F.3d 501,

509 (6th Cir. 2014) (noting that similar definition of New York third-degree

burglary does not meet ACCA’s force clause).

Because the residual clause of § 16(b) cannot survive Johnson, and

Kentucky third-degree burglary does not satisfy the § 16(a) force clause, it is not a

predicate crime of violence under § 4B1.2, and Mr. Hubbard is entitled to seek

relief from his career offender sentence.

26


CONCLUSION

For the foregoing reasons, Movant Creadell Hubbard respectfully requests

that the Court grant his motion and enter an order authorizing him to file a

successive 28 U.S.C. § 2255 motion.

This the 17th day of November, 2015.

/s/ Paul K. Sun, Jr.Paul K. Sun, Jr.N.C. State Bar No. 16847Kelly Margolis DaggerN.C. State Bar No. 44329Attorneys for Creadell HubbardELLIS & WINTERS LLP

Post Office Box 33550Raleigh, North Carolina 27636Telephone: (919) 865-7000Facsimile: (919) 865-7010

27


CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

Certificate of Compliance with Type-Volume Limitation,Typeface Requirements and Type Style Requirements

A. This brief complies with the type-volume limitation of Fed. R. App. P.32(a)(7)(B) because:

this brief contains less than 14,000 words, excluding the parts of thebrief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

B. This brief complies with the typeface requirements of Fed. R. App. P.32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)because:

this brief has been prepared in a proportionally spaced typeface using14 Point Times New Roman in WordPerfect 9.

/s/ Paul K. Sun, Jr.Attorney for Creadell HubbardDated: 17 November 2015

28


CERTIFICATE OF SERVICE

The undersigned hereby certifies that on 17 November 2015, I filed the

foregoing Brief with the Clerk of Court using the CM/ECF System, which will

send notice of such filing to the following registered CM/ECF users:

Jennifer P. May-Parker, [email protected]

This the 17th day of November, 2015.

/s/ Paul K. Sun, Jr.Paul K. Sun, Jr.

29


mailto:[email protected];

mailto:[email protected]

record no. 15-276 in re creadell hubbard, movant’s …

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