Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Mullins

United States Court of Appeals, Tenth Circuit

November 4, 2019

In re: BRIAN M. MULLINS, Movant.

          D.C. Nos. 6:16-CV-01199-EFM & 6:11-CR-10205-EFM-1, (D. Kan.)

          Before TYMKOVICH, Chief Judge, and BRISCOE and BACHARACH, Circuit Judges.

          ORDER

         Movant Brian Mullins seeks authorization from this court to file a second or successive motion under 28 U.S.C. § 2255 to challenge his conviction under 18 U.S.C. § 924(c) for possession of a firearm during and in relation to a conspiracy to commit a Hobbs Act robbery. In addition to the § 924(c) offense, Mullins was convicted of conspiracy to commit a Hobbs Act robbery and possession of a firearm by a felon. He received concurrent 84-month sentences for these two convictions and a consecutive 60-month sentence for the § 924(c) conviction. Mullins did not file a direct appeal, but he did file a § 2255 motion challenging his § 924(c) conviction. The district court denied that § 2255 motion and Mullins did not appeal.

         Because he filed an earlier unsuccessful § 2255 motion, Mullins must first receive authorization from this court before filing a second or successive § 2255 motion in district court. See 28 U.S.C. § 2255(h); id. § 2244(b)(3). Mullins seeks authorization to file a second § 2255 motion to challenge his § 924(c) conviction based on the Supreme Court's recent decision in United States v. Davis, 139 S.Ct. 2319 (2019).

         Section 924(c) provides in pertinent part that "any person who, during and in relation to any crime of violence . . . uses or carries a firearm or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence . . . be sentenced to a term of not less than 5 years." 18 U.S.C. § 924(c)(1)(A)(i). The statute further provides:

For purposes of this subsection the term "crime of violence" means 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). Subsection (A) of this definition is referred to as the elements clause and subsection (B) is referred to as the residual clause. The crime of violence underlying Mullins' § 924(c) conviction was conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).

         To obtain authorization to file a second § 2255 motion, Mullins must make a prima facie showing, 28 U.S.C. § 2244(b)(3)(C), that he satisfies one of the gatekeeping provisions contained in § 2255(h). Mullins contends that his challenge based on Davis satisfies the gatekeeping provision in § 2255(h)(2): 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." The government concedes in its response to Mullins' motion for authorization that his Davis claim meets this standard. Resp. of United States at 4.

         In Davis, the Supreme Court held that the residual clause in § 924(c)(3)'s definition of "crime of violence" is unconstitutionally vague. 139 S.Ct. at 2336. Accordingly, it struck down the residual clause, as it had done with similarly worded residual clauses in the Armed Career Criminal Act (ACCA), see Johnson v. United States, 135 S.Ct. 2551 (2015), and in 18 U.S.C. § 16(b), see Sessions v Dimaya, 138 S.Ct. 1204 (2018). Mullins contends that his § 924(c) conviction could rest only on application of § 924(c)(3)'s residual clause, so his conviction is invalid under Davis.

         Before we can authorize Mullins to pursue his Davis claim in district court, he must show that it satisfies the gatekeeping requirements of § 2255(h)(2). Thus, he must show (1) that Davis announced a new rule of constitutional law, (2) that Davis has been made retroactive to cases on collateral review by the Supreme Court, and (3) that the rule announced in Davis was previously unavailable. Id.

         This court has already determined that Davis announced a new rule of constitutional law. United States v. Bowen, 936 F.3d 1091, 1098 (10th Cir. 2019). We turn, then, to whether the Supreme Court has made Davis retroactive to cases on collateral review. For purposes of the second or successive gatekeeping provisions, "a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive." Tyler v. Cain, 533 U.S. 656, 663 (2001) (internal quotation marks omitted). [1] The holding need not be contained in a single case, however, as a combination of Supreme Court holdings also can make a new rule retroactive. Id. at 666. But "[m]ultiple cases can render a new rule retroactive only if the holdings in those cases necessarily dictate retroactivity of the new rule." Id. Mullins contends that the Supreme Court has made Davis retroactive to cases on collateral review through its holdings in multiple cases, namely Welch v. United States, 136 S.Ct. 1257 (2016), and Davis. The government agrees with this contention. Resp. of United States at 2-3.

         Justice O'Connor explained in her concurrence in Tyler how the Supreme Court can be said to have made a new rule ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.