Al Douglas Wordly v. United States

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10166
Non-Argument Calendar
____________________
AL DOUGLAS WORDLY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 1:20-cv-22499-FAM,
1:01-cr-00396-FAM-3
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2 Opinion of the Court 22-10166
____________________
Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
Al Wordly, a counseled federal prisoner serving 660 months
for federal drug, gun, and robbery crimes, appeals the district
court’s denial of his motion to vacate under 28 U.S.C. § 2255. As
relevant here, Wordly was convicted of conspiracy to possess a fire-
arm in furtherance of a crime of violence or drug-trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A) and (o). After the Supreme
Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019),
which made it more difficult for offenses to qualify as valid § 924(c)
predicate offenses, we authorized Wordly to file a second or suc-
cessive § 2255 motion challenging this conviction. We noted, how-
ever, that “other defenses might bar or defeat Wordly’s Davis
claim.” The district court denied the claim after concluding that it
was procedurally defaulted, though the court granted a certificate
of appealability. On appeal, Wordly argues that the Davis error is
jurisdictional and not subject to procedural default, that he estab-
lished cause and prejudice to excuse his failure to raise the claim on
direct appeal, and that he falls within an exception for actual inno-
cence. After careful review, we affirm.
I.
In 1997, Wordly was involved with a group of conspirators
who planned and undertook a series of three, armed-invasion rob-
beries of drug dealers’ stash houses. See In re Cannon, 931 F.3d
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1236, 1238 (11th Cir. 2019) (addressing codefendant Ulysses Can-
non’s case arising from the same underlying facts). They targeted
these homes because they were likely to contain large quantities of
cash and drugs, which the conspirators intended to distribute after
stealing. During the robberies, the conspirators, while armed,
forced their way into the homes, tied up and pistol-whipped the
occupants, ransacked the homes, and took cash, jewelry, vehicles,
and drugs, including marijuana or cocaine. Id. Wordly partici-
pated in the first two robberies, on June 20 and August 1 of 1997,
respectively, but not the final one on September 23, 1997.
In 2001, a federal grand returned a superseding indictment
against Wordly and his coconspirators. Wordly was charged with
three overlapping conspiracies: conspiracy to possess with intent to
distribute marijuana and cocaine, see 21 U.S.C. § 841(a)(1),
(b)(1)(A) (Count 1); conspiracy to commit Hobbs Act robbery, see
18 U.S.C. § 1951(a) (Count 2); and conspiracy to use and carry a
firearm during and in relation to, and to possess a firearm in fur-
therance of, a crime of violence and drug-trafficking crime, see id.§ 924(c)(1)(A) and (o) (Count 3). He also faced substantive charges
for his participation in the two robberies. For the June 20 robbery,
he was charged with attempt to possess with intent to distribute
cocaine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 4);
Hobbs Act robbery, see 18 U.S.C. § 1951(a)(1) (Count 5); and pos-
session of a firearm in furtherance of a crime of violence and drug-
trafficking crime, see id. § 924(c)(1)(A) (Count 6). Similarly, for the
August 1 robbery, he was charged with attempt to possess with
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intent to distribute cocaine, see 21 U.S.C. §§ 841(a)(1), (b)(1)(C),
and 846 (Count 7); attempted Hobbs Act robbery, see 18 U.S.C.
§ 1951(a) (Count 8); and another substantive § 924(c)(1)(A) viola-
tion (Count 9). Six other counts were brought solely against his
codefendants (Counts 10–15). The indictment listed each of the
offenses in Counts 1, 2, 4, 5, 7, 8, 10, 11, 12, and 13 as predicate
crime-of-violence or drug-trafficking offenses for Count 3.
At trial, the jury returned a general verdict of guilty on all
counts and did not specify which counts it found were predicates
for Count 3. The district court granted a judgment of acquittal on
the substantive Hobbs Act offenses—Counts 5, 8, and 11—for lack
of proof of a nexus to interstate commerce. It then sentenced
Wordly to 660 months’ imprisonment, consisting of 360 months
for Counts 1 and 4 and 240 months for Counts 2, 3, and 7, to be
served concurrently with each other; 60 months for Count 6, con-
secutive to the terms for Counts 1, 2, 3, 4, and 7; and 240 months
for Count 9, consecutive to the term for Count 6.
In 2003, we upheld Wordly’s convictions and sentence on
direct appeal. At that time, he did not raise any vagueness chal-
lenge to his convictions. Then, in 2005, the district court denied
Wordly’s motion to vacate under 28 U.S.C. § 2255 on the merits.
Both the district court and this Court denied a COA, so Wordly’s
appeal was dismissed. See 28 U.S.C. § 2253(c).
In the wake of the Supreme Court’s decision in Davis, we
granted Wordly’s application for permission to file a second or
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successive § 2255 motion, and the district court appointed coun-
sel. 1 We noted, however, that “other defenses might bar or defeat
Wordly’s Davis claim.”
By way of brief background, § 924(c) makes it a crime to pos-
sess a firearm in furtherance of a crime of violence or drug-traffick-
ing crime. 18 U.S.C. § 924(c)(1)(A); see also id. § 924(o) (making it
a crime “to conspire to commit an offense” under § 924(c)). The
statute defines the term “crime of violence” in two ways, known as
the elements clause and the residual clause. 18 U.S.C. § 924(c)(3).
In Davis, the Supreme Court held that the residual clause in
§ 924(c)(3)(B) was unconstitutionally vague. See Davis, 139 S. Ct.
at 2326–27, 2336. We subsequently concluded that conspiracy to
commit Hobbs Act robbery does not categorically qualify as a
crime of violence under the elements clause in § 924(c)(3)(A), and
thus, would qualify as a predicate offense under only the unconsti-
tutional residual clause. Brown v. United States, 942 F.3d 1069,
1075–76 (11th Cir. 2019).
In his § 2255 motion, Wordly argued that his § 924(o) con-
viction on Count 3 was invalid because the jury returned a general
verdict, so it could have based his conviction on a predicate of-
fense—namely, conspiracy to commit Hobbs Act robbery in Count
2—that was not a crime of violence after Davis. The government
1 Meanwhile, Wordly also moved for leave to file a successive § 2255 motion
in 2016, a simultaneous successive § 2255 motion in the district court, and for
leave to file a successive § 2255 motion in 2017, all of which were denied.
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responded that Wordly’s claim was procedurally barred because he
did not raise it at sentencing or on direct appeal and that, in any
event, his conviction was still supported by valid predicates unaf-
fected by Davis. The district court held the case in abeyance pend-
ing our resolution of appeals involving the same or similar issues.
Once the pending appeals were decided, the district court
reopened the case, and the magistrate judge prepared a report rec-
ommending denial of the § 2255 motion. Over Wordly’s objec-
tions, the court adopted the magistrate judge’s conclusion that the
Davis claim was procedurally defaulted under our recent decision
in Granda v. United States, 990 F.3d 1272 (11th Cir. 2021). The
court found that the error was not jurisdictional and that Wordly
had not established cause to excuse the default or actual prejudice.
The court also reasoned that Wordly’s claim failed on the merits
because there was no indication the jury relied solely on the invalid
predicate offense instead of the other valid predicates. Neverthe-
less, the court granted a COA, and this appeal followed.
II.
In reviewing the denial of a § 2255 motion, we review legal
conclusions de novo and underlying factual findings for clear error.
Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014) (en
banc). Whether procedural default bars a § 2255 movant’s claim is
a mixed question of law and fact that we review de novo. Granda,
990 F.3d at 1286.
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III.
Motions to vacate an illegal sentence under § 2255 are sub-
ject to the doctrine of procedural default. Id. at 1280. That doctrine
bars a defendant from obtaining postconviction relief based on an
argument that he could have raised earlier. McKay v. United
States, 657 F.3d 1190, 1196 (11th Cir. 2011). And it applies here
because Wordly did not raise a vagueness argument on direct ap-
peal. See id. But Wordly can overcome the bar by establishing
cause and prejudice, or he can avoid the bar by establishing that the
alleged error is jurisdictional, United States v. Bane, 948 F.3d 1290,
1294 (11th Cir. 2020), or that he is actually innocent, McKay, 657
F.3d at 1196–97.
Wordly makes all three arguments. He maintains that the
Davis error in his case is jurisdictional and cannot be waived. He
also contends that, even if not jurisdictional, he established cause
and prejudice. Finally, he asserts the actual-innocence exception
applies. We consider each issue in turn.
A.
Defects in subject-matter jurisdiction—i.e., a “court’s power
to hear a case”—are never “forfeited or waived,” and they “require
correction regardless of whether the error was raised in district
court.” United States v. Cotton, 535 U.S. 625, 630 (2002). “A juris-
dictional defect is one that strips the court of its power to act and
makes its judgment void.” McCoy v. United States, 266 F.3d 1245,
1249 (11th Cir. 2001) (cleaned up).
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District courts have power to adjudicate “all offenses against
the laws of the United States.” 18 U.S.C. § 3231. An indictment that
“charges the defendant with violating a valid federal statute as en-
acted in the United States Code” is sufficient to invoke the court’s
jurisdiction under § 3231. United States v. Brown, 752 F.3d 1344,
1354 (11th Cir. 2014). But “when the indictment itself fails to
charge a crime, the district court lacks jurisdiction.” United States
v. Moore, 954 F.3d 1322, 1334 (11th Cir. 2020). An indictment
“fail[s] to charge a legitimate offense” if a defendant could not law-
fully be convicted no matter how validly his factual guilt is estab-
lished. See United States v. Saac, 632 F.3d 1203, 1208 (11th Cir.
2011) (“A defendant’s claim that the indictment failed to charge a
legitimate offense is jurisdictional and is not waived upon pleading
guilty.”); United States v. Peter, 310 F.3d 709, 713 (11th Cir. 2002)
(“[A] district court is without jurisdiction to accept a guilty plea to
a ‘non-offense.’”).
Here, the district court properly found that the Davis error
was not jurisdictional. Davis and Brown together make clear that
Wordly’s conviction for Hobbs Act conspiracy in Count 2 does not
qualify as a “crime of violence” for purposes of § 924(c). See Davis,
139 S. Ct. at 2336; Brown, 942 F.3d at 1075–76. So he could not
lawfully have been convicted of conspiring to possess a firearm in
furtherance of that offense under § 924(o) in Count 3. And if that
were the sole predicate offense supporting his § 924(o) offense, this
would be a different case. See United States v. St. Hubert, 909 F.3d
335, 338, 341–45 (11th Cir. 2019) (holding that a similar claim was
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jurisdictional where the defendant challenged the validity of all
predicate offenses), abrogated on other grounds by Davis, 139 S.
Ct. at 2336, and United States v. Taylor, 142 S. Ct. 2015, 2021, 2025–
26 (2022); Peter, 310 F.3d at 714 (describing as jurisdictional a claim
that “the indictment consisted only of specific conduct that, as a
matter of law, was outside the sweep of the charging statute” (em-
phasis added)).
But the § 924(o) count in Wordly’s indictment alleged both
the invalid Hobbs Act conspiracy predicate and undisputedly valid
drug-trafficking predicates. And § 924(o) requires only one predi-
cate that qualifies as a crime of violence or a drug-trafficking crime.
See Granda, 990 F.3d at 1288–89 (explaining that a § 924(o) convic-
tion is “legally valid” if supported by at least one valid predicate,
notwithstanding the presence of invalid predicates). Because
Wordly could lawfully have been convicted on Count 3 based on
one of several valid predicates, as we explain in more detail below,
his conduct was within the scope of § 924(o), and the indictment
properly invoked the district court’s jurisdiction. See Brown, 752
F.3d 1354; Peter, 310 F.3d at 714.
B.
As to the issue of cause and prejudice, Granda controls this
appeal. Like the movant in Granda, Wordly raised a procedurally
defaulted challenge to the validity of a § 924(o) conviction based on
Davis. See 990 F.3d at 1281–83. As in Granda, his indictment al-
leged other predicates as support for that conviction, including un-
disputedly valid drug-trafficking crimes. Id. at 1284–85. And like
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in Granda, the jury returned a general guilty verdict after being in-
structed that a conviction under § 924(o) could be based on any one
or more predicate offenses. See id. at 1285.
In Granda, we concluded that the defendant’s Davis claim
was not sufficiently novel to establish cause. Id. at 1286–87. We
explained that while Davis announced a new constitutional rule of
retroactive application, it was not a “sufficiently clear break with
the past” that an attorney representing Granda “would not reason-
ably have had the tools” necessary to present the claim before Da-
vis. Id. (quotation marks omitted). We found that the case law at
the time of Granda’s appeal “confirm[ed] that he did not then lack
the ‘building blocks of’ a due process vagueness challenge to the
§ 924(c) residual clause.” Id. at 1287–88 (citing cases going back to
1986 that demonstrated litigants had been raising vagueness chal-
lenges to other parts of § 924(c) “for years”). Thus, we ruled that
Granda’s Davis claim was available in 2009 when he filed his direct
appeal. Id.
Next, we concluded that, even assuming Granda’s Davis
claim was novel, he was not actually prejudiced because he could
not show “a substantial likelihood” that “the jury relied only on”
the invalid predicate to convict him. Id. at 1288. We explained that
it was “not enough for Granda to show that the jury may have re-
lied on the Count 3 Hobbs Act conspiracy conviction as the predi-
cate.” Id. That’s because “reliance on any of [the other valid pred-
icates] would have provided a wholly independent, sufficient, and
legally valid basis to convict.” Id. So, we stated, “[i]f the absence
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of the invalid Count 3 predicate would not likely have changed the
jury’s decision to convict, Granda ha[d] not suffered actual preju-
dice.” Id.
We ruled that Granda could not establish actual prejudice
because “the alternative predicate offenses [we]re inextricably in-
tertwined—each arose from the same plan and attempt to commit
armed robbery of a tractor-trailer full of cocaine.” Id. at 1291. Be-
cause the jury unanimously found Granda guilty of all the valid
predicates, which “rested on the same operative facts and the same
set of events” as the invalid predicate, we concluded that no rea-
sonable jury could have found that he conspired to possess the fire-
arm in furtherance of the robbery conspiracy without also finding
he conspired to possess the firearm in furtherance of the drug-traf-
ficking predicates. Id. at 1289–90. “The tightly bound factual rela-
tionship of the predicate offenses,” in other words, prevented
Granda from showing a “substantial likelihood that the jury relied
solely” on the invalid predicate. Id. at 1291.
Wordly concedes that his argument that he demonstrated
cause for procedural default is foreclosed by Granda, and he raises
this issue solely to preserve it for further review. Granda is binding
on us as a panel, see United States v. Vega-Castillo, 540 F.3d 1235,
1236 (11th Cir. 2008), so we affirm the court’s ruling on the issue of
cause without further discussion.
As to prejudice, Wordly attempts to distinguish Granda,
which he maintains was wrongly decided, on the ground that his
sentences were structured to run consecutively, while Granda’s ran
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concurrently. And he asserts that, “[d]ue to his unlawful § 924(o)
conviction, [he] received a prison sentence longer than the one he
would have otherwise received,” which constitutes actual preju-
dice. Appellant’s Initial Br. at 18 (emphasis added).
But that argument simply skips the critical step: whether his
§ 924(o) conviction was unlawful. It is “not enough for [Wordly]
to show that the jury may have relied on the Count [2] Hobbs Act
conspiracy conviction as the predicate for his Count [3] § 924(o)
conviction.” Granda, 990 F.3d at 1288. Rather, to establish actual
prejudice, Wordly had to show “a substantial likelihood” that “the
jury relied only on” the invalid predicate to convict him. Id. He
has made no attempt to do so on appeal, and so has abandoned the
issue. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014) (issues not briefed on appeal are deemed aban-
doned).
Nor do we see anything that would meaningfully distinguish
this case from Granda. Like in Granda, all the predicate offenses
here arose out of the same scheme and attempts to commit armed
robbery of drug dealers’ stash houses and to later distribute the
fruits of their crimes. See Granda, 990 F.3d at 1289–91 (arising from
“the same plan and attempt to commit armed robbery of a tractor-
trailer full of cocaine”); see also Parker v. United States, 993 F.3d
1257, 1263 (11th Cir. 2021) (finding Granda to be “materially indis-
tinguishable” as applied to predicate offenses arising from the same
“plan to rob at gunpoint a stash house that held at least 15 kilo-
grams of cocaine”). And the jury unanimously found Wordly
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guilty of each and every predicate offense. Based on the evidence
presented at trial, “no reasonable jury could have found that
[Wordly] conspired to, and did, use and carry a firearm in further-
ance of his conspiracy to rob the house[s] (the invalid predicate)
without also finding at the same time that he did so in furtherance
of his conspiracy and attempt to obtain the cocaine in the same
house[s] (both valid predicates).” Parker, 993 F.3d at 1263. Because
it is “undeniable on this record” that the “valid drug trafficking
predicates [were] inextricably intertwined with the invalid Hobbs
Act conspiracy predicate,” Wordly cannot show a substantial like-
lihood that the jury relied solely on the invalid predicate. See id. at
1263–64.
For these reasons, Wordly has not established cause and
prejudice to excuse the procedural default of his Davis claim.
C.
Finally, Wordly’s argument that actual innocence excuses
his procedural default also fails. We have held that the “actual in-
nocence exception” requires a showing of “factual innocence” of
the crime that serves as the predicate offense. McKay, 657 F.3d at
1199. But we do not “extend the actual innocence of sentence ex-
ception to claims of legal innocence of a predicate offense justifying
an enhanced sentence.” Id. Rather, “[t]o demonstrate actual inno-
cence of the § 924(o) offense, [Wordly] would have to show that
no reasonable juror would have concluded he conspired to possess
a firearm in furtherance of any of the valid predicate offenses.”
Granda, 990 F.3d at 1292. Wordly makes no argument that he is
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factually innocent of the valid predicate offenses, and the argument
he does make is foreclosed by McKay. So he does not fall within
the exception for actual innocence. See id.
IV.
For these reasons, we hold that procedural default bars
Wordly’s Davis claim because the asserted error was not jurisdic-
tional, and Wordly cannot show cause, prejudice, or actual inno-
cence to overcome that bar.
AFFIRMED.