by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit declined to enforce an appeal waiver where the defendant stood convicted and imprisoned for conduct that, due to developments in the law after he pleaded guilty, did not violate 18 U.S.C. § 924(c) and was not criminal, and the Court determined that his procedural default was excused by a showing of cause and actual prejudice.

Donzell Ali McKinney was charged with substantive Hobbs Act robbery, Hobbs Act conspiracy, and a violation of § 924(c) predicated on the substantive Hobbs Act robbery. After McKinney had consistently refused to plead guilty to the substantive Hobbs Act robbery, he agreed to plead guilty to Hobbs Act conspiracy and a single § 924(c) count with the Hobbs Act conspiracy as the sole predicate offense in exchange for the Government’s agreement to dismiss the remaining charges. The plea agreement also included a waiver of the right to contest his conviction and sentence except on grounds of ineffective assistance of counsel or prosecutorial misconduct.

McKinney was sentenced in 2012 to 70 months’ imprisonment on the Hobbs Act conspiracy and a consecutive sentence of 120 months’ imprisonment on the § 924(c) conviction predicated on the Hobbs Act conspiracy. The remaining charges were dismissed.

In 2016, McKinney filed a 28 U.S.C. § 2255 motion, arguing that his § 924(c) conviction should be vacated because the U.S. Supreme Court had struck down the residual clause of the Armed Career Criminal Act (“ACCA”) as unconstitutionally vague in Johnson v. United States, 576 U.S. 591 (2015), and the ACCA’s residual clause is “functionally indistinguishable” from § 924(c)’s residual clause.

The U.S. District Court for the Western District of North Carolina stayed the matter due to decisions pending before the U.S. Supreme Court and in the Fourth Circuit. When the U.S. Supreme Court held in United States v. Davis, 139 S. Ct. 2319 (2019), that § 924(c)’s residual clause is also unconstitutionally vague, McKinney supplemented his motion and argued that Davis requires vacatur. The District Court, although acknowledging that McKinney’s § 924(c) conviction is likely invalid, denied his § 2255 motion because the appeal waiver barred McKinney’s challenge and because McKinney failed to show either cause and prejudice or actual innocence. The Fourth Circuit granted McKinney a
certificate of appealability.

On appeal, the Government conceded that McKinney’s § 924(c) conviction predicated on Hobbs Act conspiracy is invalid following Davis.

The Court concurred, noting that since the U.S. Supreme Court’s holding in Davis had struck down § 924(c)’s residual clause for vagueness, a Hobbs Act conspiracy could violate § 924(c) only if it is a “crime of violence” under the elements clause of § 924(c). But in United States v. Simms, 914 F.3d 229 (4th Cir. 2019), the Fourth Circuit held that Hobbs Act conspiracy does not constitute a crime of violence under the elements clause of § 924(c). Additionally, the Fourth Circuit held that Davis applies retroactively to cases on collateral review. In re Thomas, 988 F.3d 783 (4th Cir. 2021). The Court concluded that “[b]ecause Hobbs Act conspiracy does not constitute a predicate ‘crime of violence’ for a § 924(c) violation, McKinney stands convicted of a crime that no longer exists. Ordinarily, that alone would entitle him to relief on his § 2255 motion.”

But the Government argued that the appeal waiver precludes McKinney’s claim because he does not raise either ineffectiveness of counsel or prosecutorial misconduct, which are the only two grounds for challenging his conviction under the terms of the appeal waiver. McKinney countered that the Court should not enforce the waiver, which it can do under specific limited circumstances.

The Court observed that it would refuse to enforce an appeal waiver when a sentence imposed was in excess of the statutory maximum or was based on a constitutionally impermissible factor. See United States v. Marin, 961 F.2d 493 (4th Cir. 1992). Among those factors is the most fundamental reason, i.e., if enforcing the waiver results in a miscarriage of justice. See United States v. Adams, 814 F.3d 178 (4th Cir. 2016).

To establish a miscarriage of justice, a defendant need only make “a cognizable claim of actual innocence.” Adams. In Adams – as in the present case – there was a waiver of the right to challenge the conviction except on grounds of ineffective assistance of counsel or prosecutorial misconduct. The Adams Court declined to enforce the waiver because intervening precedent invalidated a § 922(g) conviction (because it was no longer based on a valid predicate). The Adams Court concluded that the defendant made “a cognizable claim of actual innocence,” so enforcing the waiver would constitute a miscarriage of justice. Further, in United States v. Sweeney, 833 F. App’x 395 (4th Cir. 2021) (unpublished), the Fourth Circuit declined to enforce an appeal waiver and vacated a § 924(c) conviction because attempted Hobbs Act robbery and Hobbs Act conspiracy are no longer valid predicates. 

Under Davis and Simms, Hobbs Act conspiracy no longer qualifies as a predicate offense supporting McKinney’s § 924(c) conviction. As such, the rationale of Adams similarly applies to McKinney, the Court stated. Therefore, the Court concluded that McKinney made a cognizable claim of actual innocence and satisfies the miscarriage of
justice requirement.

Ordinarily, that would be the end of the matter. However, the Government asserts the affirmative defense of procedural default bars consideration of McKinney’s claim on the merits. This doctrine contends that the defendant did not raise the claim at issue during the initial criminal proceedings or on direct appeal. See United States v. Harris, 991 F.3d 552 (4th Cir. 2021). Without a recognized excuse for the failure, the procedural default doctrine bars a defendant from arguing the claim on collateral review, the Court stated.

There are two showings that excuse a procedural default: the defendant establishing “either cause and actual prejudice or that he is actually innocent.” Bousley v. United States, 523 U.S. 614 (1998).  The U.S. Supreme Court instructs reviewing courts to address cause and prejudice first. See Dretke v. Haley, 541 U.S. 386 (2004). The Court stated that because it finds McKinney satisfies the cause and prejudice excuse, it does not need to address actual innocence.

The Court addressed “cause,” stating cause exists for purposes of procedural default analysis if “some objective factor external to the defense” prevented the defendant from arguing the claim on direct appeal. See Murray v. Carrier, 477 U.S. 478 (1986). For example, if a claim “is so novel that its legal basis is not reasonably available” to defendant may constitute cause. Reed v. Ross, 468 U.S. 1 (1984).   

The Reed Court listed three categories in which the novelty of the claim could constitute cause: “First, a decision of [the Supreme] Court may explicitly overrule one of [its] precedents. Second, a decision may ‘overtur[n] a longstanding and widespread practice to which [the Supreme] Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.’ And, finally, a decision may ‘disapprov[e] a practice [the Supreme] Court arguably has sanctioned in prior cases.’” Quoting United States v. Johnson, 457 U.S. 537 (1982). With respect to finding cause for cases falling into the third category, the Reed Court instructed it depends on “how direct [the Supreme] Court’s sanction of the prevailing practice had been, how well entrenched the practice was in the relevant jurisdiction at the time of defense counsel’s failure to challenge it, and how strong the available support is from sources opposing the prevailing practice.”

Turning to the present case, the Court stated that the third Reed category “contemplates precisely the type of novel claim McKinney advances here.” It explained that at the time he pleaded guilty in 2012 and was sentence a year later, the U.S. Supreme Court had upheld the constitutionality of residual clauses similar to the one at issue in this case. See, e.g., Sykes v. United States, 564 U.S. 1 (2011); James v. United States, 550 U.S. 192 (2007). Consequently, when McKinney was sentenced in 2013, the U.S. Supreme Court had foreclosed the very claim he now asserts, the Court explained. In 2015, the U.S. Supreme Court struck down a vague residual clause in Johnson. It was only then that McKinney’s claim became “reasonably available,” and then in 2019, “Davis dealt the final blow to § 924(c)’s residual clause,” the Court further explained. Thus, the Court concluded that “McKinney’s case falls squarely within Reed’s ‘novelty’ framework” and ruled that he has shown “cause” for his procedural default.

The Court then addressed the prejudice prong, stating that a defendant must show the error “worked to his actual and substantial disadvantage.” United States v. Frady, 456 U.S. 152 (1982). It noted, though, that the U.S. Supreme Court has not yet articulated the “exact contours of the prejudice standard in the § 2255 procedural-default context.” See id. Nevertheless, the Court reasoned that McKinney’s § 924(c) conviction subjects him to imprisonment for conduct that is not criminal, so he has shown prejudice and is entitled to relief. See Davis (conviction and punishment for an act that the law does not make criminal “inherently results in a complete miscarriage of justice” and presents “exceptional circumstances that justify collateral relief under § 2255”). Thus, the Court held that the District Court erred by denying McKinney’s § 2255 motion.

Accordingly, the Court reversed the judgment of the District Court and remanded the case with instructions to vacate his § 924(c) conviction predicated on Hobbs Act conspiracy. See: United States v. McKinney, 60 F.4th 188 (4th Cir. 2023).

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