USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11048
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:16-cv-22521-RNS,
1:10-cr-20855-RNS-1
CARL RICHARD SAMSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 2, 2021)
Before LAGOA, BRASHER, and BLACK, Circuit Judges.
PER CURIAM:
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 2 of 11
Carl Richard Samson appeals the district court’s denial of his authorized
successive
28 U.S.C. § 2255 motion to vacate. We granted a certificate of
appealability on one issue: whether in light of United States v. Davis,
139 S. Ct.
2319 (2019),1 and In re Hammoud,
931 F.3d 1032 (11th Cir. 2019),2 the district
court erred in denying Samson’s vagueness challenge to his conviction under
18
U.S.C. § 924(c)(3)(B). After review, 3 we affirm the district court’s denial of
Samson’s motion to vacate.
I. BACKGROUND
We presume familiarity with the factual and procedural background and
describe it below only to the extent necessary to address the issues raised in this
appeal.
Samson was charged in a superseding indictment with (1) conspiracy to
commit robbery, in violation of
18 U.S.C. § 1951(a) (Count 1); (2) attempt to
1
In Davis, the Supreme Court extended its holdings in Johnson v. United States,
576
U.S. 591 (2015), and Sessions v. Dimaya,
138 S. Ct. 1204 (2018), to § 924(c) and held that
§ 924(c)(3)(B)’s residual clause, like the residual clauses in the Armed Career Criminal Act and
18 U.S.C. § 16(b), is unconstitutionally vague. Davis,
139 S. Ct. at 2325-26, 2336. The Court
emphasized there was “no material difference” between the language or scope of § 924(c)(3)(B)
and the residual clauses struck down in Johnson and Dimaya, and, therefore, concluded that §
924(c)(3)(B) was unconstitutional for the same reasons. Id. at 2326, 2336.
2
In Hammoud, this Court held Davis announced a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
Hammoud, 931 F.3d at 1038-39.
3
When reviewing a district court’s denial of a § 2255 motion, this Court reviews
findings of fact for clear error and questions of law de novo. McKay v. United States,
657 F.3d
1190, 1195 (11th Cir. 2011).
2
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 3 of 11
commit robbery in violation of
18 U.S.C. §§ 1951(a) and (2) (Count 2); and
(3) using and carrying a firearm during and in relation to a crime of violence—
specifically, conspiracy to commit a robbery as charged in Count 1 and attempt to
commit a robbery as charged in Count 2—in violation of
18 U.S.C.
§§ 924(c)(1)(A)(iii) and 2 (Count 3). Samson proceeded to jury trial on all three
counts. As to Count 3, the district court instructed the jury:
The defendant can be found guilty of violating 18 Section
924(c)(1)(A)(iii) only if all of the following facts are proved beyond a
reasonable doubt: First, that the defendant committed at least one of
the federal crimes of violence charged in Counts 1 or 2 of the
superseding indictment; second, that during the commission of that
offense the defendant knowingly used or possessed a firearm as
charged; and third, that the defendant used the firearm in relation to
the federal crime of violence or possessed the firearm in furtherance
of the federal crime of violence.
Samson was found guilty on all three counts by a general jury verdict. This Court
affirmed Samson’s convictions on direct appeal. United States v. Samson, 540 F.
App’x 927, 932 (11th Cir. 2013).
II. DISCUSSION
Samson asserts that because Davis held that the residual clause of
§ 924(c)(3)(B)4 is unconstitutionally vague, his conviction for conspiracy to
4
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 [the elements clause], or
3
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 4 of 11
commit robbery in violation of
18 U.S.C. § 1951(a) (Hobbs Act), does not qualify
as a crime of violence under § 924(c)(3)(B). Samson also argues that conspiracy to
commit a Hobbs Act robbery does not qualify as a crime of violence under
§ 924(c)(3)(A)’s elements clause. Samson contends the district court’s denial of
his motion should be vacated because the district court had not determined whether
his § 924(c) conviction rested on the Hobbs Act robbery conspiracy or attempt
charge. Samson asserts it is not clear which evidence the jury relied on to
distinguish between attempt and conspiracy, thus the jury reasonably could have
relied solely on the broader conspiracy theory for its § 924(c) verdict. Samson
asserts the unconstitutionality of § 924(c)(3)(B) and the need for resolution of the
jury’s reliance on the conspiracy charge as the basis for its determination of the
§ 924(c) count warrant vacating the district court’s decision and remanding to the
district court.
The Government responds that Samson procedurally defaulted his claim by
not raising it on direct appeal. The Government argues that Samson has no cause
to excuse his default because his vagueness challenge was not “novel” within the
meaning of this Court’s precedents and the legal basis of his vagueness claim was
(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 [the residual clause].
18 U.S.C. § 924(c)(3).
4
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 5 of 11
available to him at all times. The Government also argues that Samson cannot
show actual prejudice because his attempted Hobbs Act robbery qualified as a
predicate crime of violence post-Davis and his § 924(c) count was alternatively
predicated on the attempt. The Government contends that Samson cannot
demonstrate actual innocence because his § 924(c) conviction was also predicated
on attempted Hobbs Act robbery.
The Government also contends there was no possibility the jury’s § 924(c)
verdict rested solely on the conspiracy charge because the robbery conspiracy and
its attempt were coextensive and the jury found the attempt was proven beyond a
reasonable doubt. While the Government recognizes that Hobbs Act conspiracy no
longer qualifies as a predicate crime of violence, Davis did not alter the validity of
Samson’s § 924(c) conviction because it was also predicated on attempted Hobbs
Act robbery, which was unaffected by Davis. The Government states there is no
need to remand to the district court because the record makes clear that the
underlying offenses of conspiracy and attempted Hobbs Act robbery were so
inextricably intertwined that Samson cannot meet his burden of proving
entitlement to relief under Davis.
As an initial matter, we have held conspiracy to commit Hobbs Act robbery
does not qualify as a “crime of violence” under § 924(c)’s elements clause and thus
would only qualify as a predicate offense under the unconstitutional residual
5
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 6 of 11
clause. Brown v. United States,
942 F.3d 1069, 1075-76 (11th Cir. 2019). In
contrast, attempted Hobbs Act robbery categorically qualifies as a crime of
violence under the § 924(c)(3) elements clause and therefore is a valid predicate
for Samson’s § 924(c)(1)(A)(iii) conviction. United States v. St. Hubert,
909 F.3d
335, 351-53 (11th Cir. 2018), abrogated in part on other grounds by Davis,
139 S.
Ct. at 2336.
This Court recently issued an opinion in Granda v. United States, __ F.3d
__,
2021 WL 923282 (11th Cir. Mar. 11, 2021) that controls the resolution here.
Granda also collaterally attacked his conviction under
18 U.S.C. § 924, arguing
that one of the predicate crimes—conspiracy to commit Hobbs Act robbery—no
longer qualifies as a crime of violence after Davis. We rejected Granda’s
arguments on appeal for two reasons: (1) he could not overcome the procedural
default of his claim, and (2) he could not otherwise prevail on the merits.
Id. at 1.
We reject Samson’s arguments on appeal for the same reasons.
A. Procedural Default
A prisoner in federal custody may file a motion to vacate, set aside, or
correct his sentence pursuant to § 2255, claiming the right to be released based on
the ground that his sentence was imposed in violation of the Constitution or laws
of the United States.
28 U.S.C. § 2255(a). A § 2255 claim may be procedurally
defaulted if the petitioner failed to raise the claim on direct appeal. Bousley v.
6
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 7 of 11
United States,
523 U.S. 614, 622 (1998). A defendant can overcome this
procedural bar by establishing cause and actual prejudice, or actual innocence.
Id.
Futility does not constitute cause to the extent that the movant’s argument was
“unacceptable to that particular court at that particular time.”
Id. at 623. In
determining cause, the question is not whether subsequent case law has made
counsel’s task easier, but whether at the time of the alleged default, the claim was
available at all. McCoy v. United States,
266 F.3d 1245, 1258 (11th Cir. 2001).
Samson did not argue in the trial court, or on direct appeal, that his
§ 924(c)(1)(A)(iii) conviction was invalid because the § 924(c)(3)(B) residual
clause was unconstitutionally vague. “He, therefore, procedurally defaulted this
claim and cannot succeed on collateral review unless he can either (1) show cause
to excuse the default and actual prejudice from the claimed error, or (2) show that
he is actually innocent of the [§ 924(c)(1)(A)(iii)] conviction.” Granda,
2021 WL
923282 at *5.
1. Cause
In Granda, we rejected the petitioner’s argument that his §924(c)(3)
argument was sufficiently novel to establish cause to excuse the procedural default.
Id. at *5-*7. While Davis announced a new constitutional rule that has retroactive
application, Hammoud, 931 F.3d at 1038-39, we explained “[t]o establish novelty
sufficient to provide cause based on a new constitutional principle, [a petitioner]
7
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 8 of 11
must show that the new rule was a sufficiently clear break with the past, so that an
attorney representing him would not reasonably have had the tools for presenting
the claim,” Granda,
2021 WL 923282 at *6 (quotations and alterations omitted).
We determined Granda’s claim did not fit into any of the three circumstances in
which novelty might constitute cause for defaulting a claim: (1) “when a decision
of the Supreme Court explicitly overrules one of its precedents”; (2) “when a
Supreme Court decision overturns a longstanding and widespread practice to
which the Supreme Court has not spoken, but which a near-unanimous body of
lower court authority has expressly approved”; and (3) “when a Supreme Court
decision disapproves of a practice the Supreme Court arguably has sanctioned in
prior cases.”
Id. (quotations and alterations omitted). We concluded because “the
tools existed to challenge myriad other portions of § 924(c) as vague; they existed
to support a similar challenge to its residual clause.” Id. at *7. The same
reasoning applies in Samson’s case and Samson cannot show cause to excuse his
procedural default.
2. Prejudice
We also determined the petitioner could not overcome the procedural default
of his vagueness claim because he could not show actual prejudice. Id. “To
prevail on a cause and prejudice theory, a petitioner must show actual prejudice.
Actual prejudice means more than just the possibility of prejudice; it requires that
8
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 9 of 11
the error worked to the petitioner’s actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.” Id. (quotations omitted).
To show actual prejudice, we determined that a petitioner would have to show a
“substantial likelihood” the jury relied solely on the Hobbs Act conspiracy
conviction as the predicate for his § 924 conviction. Id.
Samson has failed to show a substantial likelihood his § 924(c) conviction
was predicated solely on his Hobbs Act conspiracy conviction. First, the district
court instructed the jury it could find Samson guilty of § 924(c) upon finding
beyond a reasonable doubt that he committed at least one of the crimes of violence
charged in Count 1 or Count 2 of the indictment. Second, the jury found beyond a
reasonable doubt that Samson committed attempted Hobbs Act robbery, which is a
qualifying crime of violence predicate under § 924(c)(3)(A). Third, the general
jury verdict did not specify upon which predicate offense(s) Samson’s § 924(c)
conviction was based. Fourth, the conspiracy and attempt offenses were
inextricably intertwined, and Samson acknowledged in his reply brief that it was
not clear which evidence the jury relied on to distinguish between attempt and
conspiracy for his § 924(c) verdict, effectively conceding that he cannot meet his
burden that the jury relied solely on the conspiracy conviction. Samson cannot
show actual prejudice.
9
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 10 of 11
3. Actual Innocence
“The actual innocence exception to the procedural default bar is
exceedingly narrow in scope as it concerns a petitioner’s actual innocence rather
than his legal innocence. Actual innocence means factual innocence, not mere
legal innocence.” Granda,
2021 WL 923282 at *10 (quotations omitted). Samson
makes no argument that he is actually innocent of the offense, and he cannot show
he is actually innocent of his § 924(c) offense.
Thus, because Samson cannot show cause, prejudice, or actual innocence, he
cannot overcome procedural default.
B. Merits
In Granda, we determined “[t]he inextricability of the alternative predicate
crimes compels the conclusion that the error Granda complains about—instructing
the jury on a constitutionally invalid predicate as one [of several] potential
alternative predicates—was harmless.” Id. The same result follows here.
Samson’s conspiracy to commit Hobbs Act robbery was inextricably intertwined
with the other predicate offense of attempted Hobbs Act robbery. There is little
doubt that if a jury found Samson conspired to possess a firearm in furtherance of
his conspiracy to commit Hobbs Act robbery, it also found that he conspired to
possess a firearm in furtherance of the attempted Hobbs Act robbery. There is no
grave doubt regarding whether the inclusion of the invalid predicate had a
10
USCA11 Case: 19-11048 Date Filed: 04/02/2021 Page: 11 of 11
substantial influence in determining the jury’s verdict. See Davis v. Ayala,
576
U.S. 257, 267-68 (2015) (explaining on collateral review, the harmless error
standard states “relief is proper only if the federal court has grave doubt about
whether a trial error of federal law had substantial and injurious effect or influence
in determining the jury’s verdict” (quotations omitted)). Thus, any error of
instructing Samson’s jury on the invalid predicate is harmless.
III. CONCLUSION
We conclude that Samson procedurally defaulted his claim, and
alternatively, that any potential error in instructing the jury on the invalid predicate
was harmless. Thus, we affirm the district court’s denial of Samson’s successive
§ 2255 motion to vacate.
AFFIRMED.
11
