United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
M. FURMAN, United States District Judge
review of the parties' submissions, the Court is inclined
to deny Petitioner's Section 2255 motion on the ground
that it is bound by the holding in United States v.
Brown, 52 F.3d 415, 426 (2d Cir. 1995), that robbery is
a “crime of violence” within the meaning of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), unless and until the Second Circuit itself
holds otherwise. The Court acknowledges that Johnson v.
United States, 559 U.S. 133 (2010) (“2010
Johnson”), casts some doubt on the continuing
validity of Brown and similar cases. See, e.g.,
United States v. Johnson, No. 15-CR-32 (BMC), 2016 WL
6684211, at *4-7 (E.D.N.Y. Nov. 12, 2016); Diaz v. United
States, No. 16-CV-0323 (MAT), 2016 WL 4524785, at *5-7
(W.D.N.Y. Aug. 30, 2016); see also United States v.
Jones, No. 15-1518, slip op. at 14-16 (2d Cir. July 21,
2016) (holding that “forcible stealing” under New
York law does not constitute “violent force”
under 2010 Johnson), vacated by 2016 WL 5791619 (2d
Cir. Oct. 3, 2016) (ordering that the appellee's petition
be held in abeyance pending the Supreme Court's decision
in Beckles v. United States, No. 15-8544). But this
Court is required to follow Second Circuit precedent
“unless and until it is overruled in a precedential
opinion by the Second Circuit itself or unless a subsequent
decision of the Supreme Court so undermines it that it will
almost inevitably be overruled by the Second Circuit.”
United States v. Diaz, 122 F.Supp.3d 165, 179
(S.D.N.Y. 2015). Thus, “[t]he precise question for this
Court . . . is not whether, by its own analysis, ”
2010 Johnson calls for a different result than that
reached in Brown. United States v.
Emmenegger, 329 F.Supp.2d 416, 429 (S.D.N.Y. 2004).
Instead, it is whether 2010 Johnson “so
conclusively supports that finding that the Second Circuit or
the Supreme Court is all but certain to overrule”
Brown and similar cases. Id.; see also
Monsanto v. United States, 348 F.3d 345, 351 (2d Cir.
2003) (noting that district courts and the Second Circuit
itself are “required to follow” a Second Circuit
decision, even if it is in “tension” with
subsequent Supreme Court precedent, “unless and until
that case is reconsidered by [the Second Circuit] sitting in
banc (or its equivalent) or is rejected by a later Supreme
Court decision”); United States v. Wong, 40
F.3d 1347, 1373 (2d Cir. 1994) (“[U]ntil the Supreme
Court rules otherwise, the district court would be obliged to
follow our precedent, even if that precedent might be
overturned in the near future.”).
Court cannot conclude that the Second Circuit or the Supreme
Court is “all but certain” to overrule
Brown and similar cases, if only because the Second
Circuit itself has repeatedly reaffirmed the holding of
Brown since 2010 Johnson. See,
e.g., United States v. Miles, 748 F.3d 485, 490
(2d Cir. 2014) (stating that the defendant's argument
that robbery in the third degree does not qualify as a
violent felony “fails under the plain language of ACCA,
” citing Brown); Belk v. United
States, No. 16-765, 2016 WL 1587223, at *1 (2d Cir. Apr.
19, 2016) (citing Brown for the proposition that
robbery convictions qualify as “ACCA predicates”
under Section 924(e)(2)(B)(i)); United States v.
Bennett, 604 F. App'x 11, 15-16 (2d Cir. 2014)
(citing Brown and Miles in holding that
robbery qualifies as a violent felony under ACCA); United
States v. Bogle, 522 F. App'x 15, 19-20 (2d Cir.
2013) (holding that a conviction for attempted robbery in the
second degree qualifies as a violent felony under ACCA);
see also, e.g., United States v. Kornegay,
641 F. App'x 79, 85 (2d Cir. 2016) (affirming that New
York State robbery convictions are still “categorically
crimes of violence” under the elements clause of the
career offender Guideline in U.S.S.G. § 4B1.1). To be
sure, all but one of those decisions were
“non-precedential summary orders, ” and the
decisions “do not undertake an analysis of robbery in
New York pursuant to the Supreme Court's definition of
‘force' in [2010 Johnson].”
Johnson, 2016 WL 6684211, at *6. But a district
judge is not “at liberty . . . to disregard, ”
let alone “contradict[, ] a Second Circuit ruling
squarely on point merely because it was rendered in a summary
order.” United States v. Tejeda, 824 F.Supp.2d
473, 475 (S.D.N.Y. 2010); see also United States v.
Payne, 591 F.3d 46, 58 (2d Cir. 2010) (“[D]enying
summary orders precedential effect does not mean that the
court considers itself free to rule differently in similar
cases”). And regardless, the fact that the Second
Circuit itself has repeatedly reaffirmed the holding in
Brown since 2010 Johnson prevents the Court
from concluding “that the Second Circuit or the Supreme
Court is all but certain to overrule” Brown
and other Circuit precedent reaching the same result.
Emmenegger, 329 F.Supp.2d at 429.
foregoing reasons, the Court is inclined to deny
Petitioner's motion (without reaching the
Government's alternative arguments that the motion is
untimely and procedurally barred). That said, the Court is
agnostic about whether it is better to deny the motion and
permit an immediate appeal (assuming that Petitioner would
even be entitled to a certificate of appealability under
Title 28, United States Code, Section 2253, insofar as
2010 Johnson did not decide an issue of
“constitutional” law) or to stay the case pending
a decision by the Second Circuit in Jones (in which
case, this Court could immediately act on any change in the
law without the need to await a remand from the Second
Circuit). No later than February 10, 2017, the parties shall
submit letter briefs advising the Court of their views on
that question and the question of whether the Court should
grant a certificate of appealability in the event that it
denies the motion now.
 In a footnote in his opening papers,
Petitioner asserts that his third conviction, for attempted
assault in the first degree, “also fails to
qualify” as a violent felony for ACCA purposes, but
explicitly states that “resolution of that question is
unnecessary for purposes of this petition.”
(02-CR-1185, Docket No. 128, at 2 n.1). In his reply papers,
Petitioner includes another footnote stating as follows:
“If the Court finds that resolution of the issue is
necessary to decide this motion, Mr. Boone would ask that the
Court provide both parties an opportunity to brief it.”
(02-CR-1185, Docket No. 134, at 3 n.1). Those footnotes are
plainly insufficient to raise any argument with respect to
Petitioner's assault conviction, see, e.g.,
Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.
1998) (“Issues not sufficiently argued in the briefs
are considered waived . . . .”); Levine v.
Lawrence, No. 03-CV-1694 (DRH), 2005 WL 1412143, at *5
(E.D.N.Y. June 15, 2005) (“[F]ailure to adequately
brief an argument constitutes waiver of that argument . . .
.”), and the Court declines Petitioner's ...