United States District Court, S.D. New York
OPINION & ORDER
WILLIAM H. PAULEY III, United States District Judge.
Massey moves for habeas relief pursuant to 28 U.S.C. §
2255. Massey argues that his sentence must be vacated because
his three predicate convictions no longer meet the definition
of a “violent felony” under the Armed Career
Criminal Act (“ACCA”). For the reasons that
follow, Massey's petition is denied.
March 2004, a jury convicted Massey of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). At sentencing, this Court found that Massey's
sentence was subject to enhancement under § 922(e) due
to his prior felony convictions for third-degree robbery,
second-degree assault, and second-degree attempted assault.
Specifically, this Court held that “because the
statutes for robbery in the third degree, assault in the
second degree, and attempted assault in the second degree all
involve the use or attempted use of force, see N.Y.
Penal Law §§ 120.05 and 160.05, Massey's prior
convictions for those violent felonies are predicate offenses
under the Armed Career Criminal Act.” (Sentencing Tr.
at 8). This Court sentenced Massey principally to 235 months
of imprisonment. He has now been in jail for approximately
appealed, arguing, inter alia, that his sentence was
improperly enhanced under the ACCA. The Second Circuit
affirmed his conviction, finding that “the district
court properly relied on the statutory elements of
Massey's prior convictions in finding that he committed
three prior violent felonies.” United States v.
Massey, 461 F.3d 177, 179 (2d Cir. 2006). Thereafter,
the Supreme Court denied Massey's application for
certiorari. See Massey v. United States,
549 U.S. 1136 (2007). Massey then filed his first § 2255
petition, again claiming that this Court erred in applying
the ACCA sentence enhancement. This Court denied his petition
and refused to issue a certificate of appealability, again
finding that “[r]obbery, assault, and attempted assault
under New York law all qualify as violent felonies for
purposes of an ACCA sentence enhancement.” Massey
v. United States, No. 08-CV-924, 2009 WL 1285991, at *3
(S.D.N.Y. Apr. 23, 2009).
moved twice for leave to file successive § 2255
petitions, both of which were denied by the Second Circuit.
See Massey v. United States, No. 13-CV-2947 (2d Cir.
Sept. 4, 2013); Massey v. United States, No.
14-CV-2281 (2d Cir. July 24, 2014.) Following the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015) (“Johnson II”),
striking down the ACCA's residual clause as
unconstitutionally vague, Massey filed a third motion for
leave to file a successive petition. Initially, the Second
Circuit denied leave because Massey had “not made a
prima facie showing that the new rule of constitutional law
announced in Johnson [II] applie[d] to his
conviction.” Massey v. United States, No.
14-CV-2281 (2d Cir. June 13, 2016). But one month later, the
Second Circuit decided that the New York robbery statute does
not categorically require “violent force” under
the Sentencing Guidelines, a term which is afforded a
parallel construction in the ACCA. See United States v.
Jones, No 15-CR-1518 (2d Cir. July 21, 2016).
on Jones, Massey moved to recall the mandate denying
his third motion to file a successive petition. On September
21, 2016 the Second Circuit granted that motion. Twelve days
later, the Second Circuit vacated its decision in
Jones pending the disposition of grant of certiorari
in another case. Thereafter, the Supreme Court announced that
the residual clause in the Sentencing Guidelines was not
subject to a vagueness attack under the Due Process
Clause. See Beckles v. United States, 137
S.Ct. 886, 895 (2016).
prisoner may seek collateral review of a federal conviction
or sentence that was “imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C.
§ 2255. Because collateral challenges conflict with
“society's strong interest in the finality of
criminal convictions, ” courts have established a high
bar for defendants “to upset a conviction on a
collateral, as opposed to direct, attack.” Yick Man
Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010).
Petitioners are barred by the “so-called mandate
rule” from “re-litigation of issues already
decided on direct appeal, ” including any issues
“impliedly resolved by the appellate court's
mandate.” Yick Man Mui, 614 F.3d at 53.
Successive challenges under § 2255 are “expressly
limited . . . to those arising out of a new rule of
constitutional law” and “those based on newly
discovered evidence.” Triestman v. United
States, 124 F.3d 361, 372 (2d Cir. 1997). Accordingly,
decisions that merely interpret statutory language do not
create grounds for successive § 2255 petitions. See
Belk v. United States, No. 16-CV-765, 2016 WL 1587223,
at *1 (2d Cir. Apr. 19, 2016.)
petition raises two issues that require some examination.
First, does the petition in fact rely on Johnson II,
or is it procedurally barred because it is not based on a new
rule of constitutional law? And second, if this petition is
not procedurally barred, does Johnson II compel
vacatur of Massey's sentence enhancement under the ACCA
because his conviction for third-degree robbery is no longer
categorically a “crime of
A. Procedural Bar
Government argues that this petition is procedurally
defective because it relies not on Johnson II, but
rather on an unrelated 2010 Supreme Court case of the same
name, which construed the “force” required under
the ACCA as “violent force-that is, force capable of
causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010)
(“Johnson I”). This must be true,
according to the Government, because Johnson II
invalidated the ACCA's residual clause but left the
“force” clause intact, and this Court explicitly
sentenced Massey under the “force” clause.
(See Sentencing Tr. at 8 (applying the ACCA
enhancement because “the statutes for robbery in the
third degree, assault in the second degree, and attempted
assault in the second degree all involve the use or attempted
use of force.”)) Because Johnson I simply
interpreted § 924(e) and did not establish a new rule of
constitutional law, the Government reasons,
Massey's petition is procedurally barred. See 28
U.S.C. § 2255(h)(2).
timing of Massey's various petitions and appeals makes
this issue difficult. On one hand, this Court unequivocally
found that Massey's prior convictions were ACCA
predicates under the “force” clause, not the
residual clause. (See Sentencing Tr. at 8.) Thus
Massey's citation to United States v. Winston,
850 F.3d 677 (4th Cir. 2017), a Fourth Circuit case dealing
with a similar question, is not precisely on point. In that
case, the trial record “[did] not establish that the
residual clause served as the basis” for concluding
that the defendant's prior convictions were
“violent felonies” because the district court
chose not to specify which clause it was relying on at
sentencing. Winston, 850 F.3d at 682. The Fourth
Circuit held that the petitioner had shown that he was
“rel[ying] on a new rule of constitutional law”
articulated by Johnson II because his sentence