Partial 2255 Relief for Defendant With Using Firearm to Commit Murder Convictions

US v. Green: In 2011, Green pleaded guilty to two counts of using a firearm to commit murder in the course of a “crime of violence,” as defined in 18 USC 924(c). The predicate offenses for one count were Hobbs Act conspiracy and attempt to commit a Hobbs Act robbery, for the second count were Hobbs Act conspiracy and a completed Hobbs Act robbery. In 2016, Green filed a 2255 motion in the wake of Johnson, arguing that his convictions were no longer valid. The district court dismissed the motion as untimely, as it was filed more than a year after Green’s convictions became final and Johnson did not set forth a new right applicable to his case.

On appeal, the Fourth Circuit partly affirmed and partly vacated the district court’s decision. In the interim while Green’s appeal was pending, the Supreme Court decided Davis, in which it extended the holding of Johnson to the 924(c) definition of crime of violence. In the wake of that, and other Fourth Circuit decisions, the Government conceded that Green’s conviction based on conspiracy and attempt was no longer valid. However, because one of the predicates for the other conviction, completed Hobbs Act robbery, was still a valid crime of violence, the Government argued that conviction should stand. Ultimately, the Fourth Circuit agreed. It first found that Green’s 2255 motion was timely, even though it was filed before Davis was deciding, noting the absurdities that would result otherwise. While timely, however, his claim was barred by procedural default, largely because, on the merits, his conviction was based on a still-valid predicate offense.