Court Regrets Allowing Successive 2255 Petition in Massey v. United States
On July 11, 2018, the Court of Appeals issued a short per curiam opinion (Wesley, Chin, Furman D.J. by designation) in Massey v. United States, affirming the sentence imposed on an individual who was convicted of possession of a firearm after a felony conviction pursuant to 18 U.S.C. § 922(g). Massey had committed three prior felonies in New York: third-degree robbery, second-degree assault, and second-degree attempted assault. Each of these was deemed a crime of violence under the “force clause” of the Armed Career Criminal Act (“ACCA,” codified at 18 U.S.C. § 924(e)). The question presented to the Court of Appeals was whether Massey’s sentence pursuant to the ACCA should be affirmed in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (Johnson II), holding that the “residual clause” of the ACCA was unconstitutionally vague.
The full procedural history is outlined in the Court’s decision, but suffice it to say that the Court of Appeals three times denied leave for Massey to file a successive motion under 28 U.S.C. § 2255, holding that the rule of law decided by the Supreme Court in Johnson II did not apply to his case. This last denial was on June 13, 2016.
However, the Second Circuit thereafter decided United States v. Jones, 830 F.3d 142 (2d Cir. 2016), covered here, which held that first-degree robbery in New York was not categorically a crime of violence under the “force clause” of the Sentencing Guidelines. Jones was based on a prior Supreme Court decision in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), which held as a matter of statutory construction that the phrase “physical force” in the “force clause” of the ACCA referred to violent force that was capable of causing physical pain or injury. Jones raised the question of whether one of Massey’s three ACCA predicate crimes no longer qualified. After Jones, the Court of Appeals granted Massey’s motion to recall the mandate for the third denial of his motion to file a successive 2255 motion and granted Massey’s motion. In a footnote, the Court questioned whether “the recall of the mandate and grant of Massey’s motion for leave was ill-advised” because Johnson I did not announce a new constitutional rule; but having granted leave, the district court addressed the substance of Massey’s 2255 motion.
The district court denied the motion because by this point, the Second Circuit’s decision in Jones had been vacated, and preexisting Circuit law supported the conclusion that New York robbery is a crime of violence under the ACCA. In United States v. Jones (Jones II), 878 F.3d 10, 17-18 (2d Cir. 2017), covered here, the Court held that New York first-degree robbery was categorically a crime of violence under the Sentencing Guidelines’ residual clause and did not reach the issue of whether robbery was categorically a crime of violence under the Guidelines’ “force clause.” This left in place a prior Second Circuit ruling holding that New York robbery is a crime of violence under the force clause.
On the instant appeal, the Circuit denied Massey’s motion without reaching the merits, holding that Massey’s successive 2255 motion did not satisfy “the statutory requirements governing successive habeas petitions.” The Court so ruled notwithstanding the Court’s prior ruling that allowed Massey to file a successive motion based on his having made a “prima facie showing that his motion satisfied the [applicable] requirements.” In particular, a second or successive petition must rely on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The district court also held that this requirement was satisfied because Johnson II invalidated the residual clause of ACCA.
However, Massey’s sentence was enhanced not pursuant to the residual clause, but based on the force clause, rendering irrelevant the Supreme Court’s decision in Johnson II. Massey offered an argument that Johnson II (which has since been made retroactive to cases on collateral review) really was relevant to his petition, but the Court of Appeals disagreed, holding that he was not sentenced in violation of the new rule of constitutional law announced in Johnson II. The Court held that Massey’s claim relied on Johnson I, which did not announce a new rule of constitutional law, and it was not possible for Massey to “bootstrap” his statutory Johnson I claim to the constitutional Johnson II ruling. This ruling appears to be consistent with the decision of every other Circuit to address analogous claims. As a result, the Court denied Massey’s motion on procedural grounds, and did not reach the merits.
The harsh reality is that most defendants are not permitted to pursue a second or successive habeas petition. Even though Massey must have believed that he had persuaded the Court of Appeals that he was entitled to pursue a successive 2255 petition when it allowed him to file such a petition, the Court of Appeals effectively withdrew its prior interim ruling and held that the requirements for such a petition were not satisfied here. Given the extreme length of Massey’s sentence—235 months’ imprisonment, just shy of 20 years, for possession of a firearm—it is not surprising that he has continued to challenge his sentence for so long.
-By Brandon Trice and Harry Sandick