Derrick Herron v. United States

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10212
Non-Argument Calendar
____________________
DERRICK HERRON,
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 No. 1:19-cv-24313-CMA
____________________
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2 Opinion of the Court 21-10212
Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Derrick Herron, a federal prisoner, appeals the district
court’s denial of his authorized second or successive 28 U.S.C.
§ 2255 motion to vacate. After careful review, we affirm.
I.
Herron was indicted, and eventually convicted, on a charge
that he violated 18 U.S.C. § 924(o). Section 924(o) criminalizes con-
spiracy “to commit an offense under subsection (c)” of § 924, and
subsection (c) provides enhanced penalties for “any person who,
during and in relation to any crime of violence or drug trafficking
crime,” uses or carries a firearm. 18 U.S.C. § 924(c)(1)(A), (o). As
relevant to this appeal, at the time of Herron’s conviction § 924(c)
defined “crime of violence” to include a felony offense “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 com-
mitting the offense.” Id. § 924(c)(3)(B). This subsection came to be
known as the “residual clause” of § 924(c). See United States v. Da-
vis, 139 S. Ct. 2319, 2323, 2325–26 (2019).
Herron appealed his conspiracy conviction and sentence. In
so doing he did not argue that § 924(c)’s residual clause was void
for vagueness. We affirmed. See United States v. Brown,
227 F. App’x 795, 797–99, 804 (11th Cir. 2007) (unpublished). Her-
ron filed a first § 2255 motion in 2008. He did not allege that
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21-10212 Opinion of the Court 3
§ 924(c)’s residual clause was unconstitutionally vague. The district
court denied the motion.
In 2019, after the Supreme Court held unconstitutional as
void for vagueness the residual clause in 18 U.S.C. § 924(c), see Da-
vis, 139 S. Ct. at 2323–24, Herron applied to this Court for leave to
file a second or successive § 2255 motion. We granted his applica-
tion.
Herron moved in the district court for relief under § 2255.
He argued that Davis invalidated his § 924(o) conviction. He
acknowledged that his § 924(o) charge was predicated on crimes of
violence (conspiracy to commit Hobbs Act robbery and Hobbs Act
robbery) and a drug trafficking crime, and that Hobbs Act robbery
and the drug crime were valid predicate offenses. But, he argued,
relief was warranted because it was “impossible to tell” whether his
conviction was predicated on a valid predicate offense or on the
Hobbs Act conspiracy (which would render his conviction invalid).
Doc. 6 at 6 (quoting Stromberg v. California, 283 U.S. 359, 368
(1931)). 1
The district court denied the motion. The court determined
that Herron had procedurally defaulted his claim by failing to chal-
lenge § 924(c)’s residual clause at sentencing or on direct appeal.
The court concluded that Herron had shown cause to overcome
the default, but not actual prejudice. The court agreed with Herron
1 “Doc.” numbers refer to district court docket entries.
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4 Opinion of the Court 21-10212
that “Stromberg error is shown here,” but concluded that any such
error was harmless because the valid and now-invalid predicate of-
fenses were “inextricably intertwined” with one another. Doc. 14
at 14.
The district court granted Herron a COA on three issues: (1)
whether the district court erred in determining that he failed to
show prejudice to overcome the procedural default; (2) whether
the court erred in applying a harmless-error review standard to the
alleged Stromberg error; and (3) whether the court erred in deter-
mining that any error was harmless. This is Herron’s appeal.
II.
When reviewing a district court’s denial of a § 2255 motion,
we review questions of law de novo and factual findings for clear
error. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).
We review de novo whether procedural default precludes a § 2255
petitioner’s claim, which is a mixed question of law and fact.
Granda v. United States, 990 F.3d 1272, 1286 (11th Cir. 2021).
III.
On appeal Herron argues that he has shown prejudice to
overcome the procedural default. He acknowledges that there may
have been valid predicates to support his § 924(o) conviction but
says that, under Stromberg, it is impossible for the court to discern
that his conviction rested on a valid predicate, so relief must be
granted. We need not reach Herron’s arguments about prejudice
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21-10212 Opinion of the Court 5
and Stromberg error because his challenge is foreclosed for another
reason: he cannot show cause to overcome the procedural default.
Although the scope of review in a § 2255 appeal is limited to
issues specified in the COA, we read the COA to encompass proce-
dural issues that must be resolved before we may reach the merits
of the underlying claim, including the requirements to overcome a
procedural default. See McCoy v. United States, 266 F.3d 1245,
1248 n.2 (11th Cir. 2001). And we may affirm the judgment of the
district court on any ground supported by the record. LeCroy v.
United States, 739 F.3d 1297, 1312 (11th Cir. 2014).
The district court correctly determined that Herron’s claim
that the residual clause in § 924(c) is void for vagueness was proce-
durally defaulted because Herron failed to raise the argument dur-
ing his sentencing or on direct appeal. See Granda, 990 F.3d at
1285–86. To overcome a procedural default, a movant must show
both cause for the default and actual prejudice stemming from the
alleged error. 2 Id. at 1286. Although the district court concluded
that Herron had shown cause to overcome the default, that con-
clusion is wrong under Granda, where we held that a movant could
not show cause for failing to raise a vagueness challenge to § 924(c)
because “he did not then lack the building blocks of a due process
2A movant may also overcome a procedural default by showing that he is
actually innocent of the offense of conviction. See Granda, 990 F.3d at 1286.
Herron has not argued on appeal that he is actually innocent of his § 924(o)
conviction.
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6 Opinion of the Court 21-10212
challenge” to the residual clause. Id. at 1287 (internal quotation
marks omitted).
Herron argues that his case is distinguishable from Granda’s.
Granda’s “best argument” that he lacked the building blocks of a
due process challenge at the time of his direct appeal was “that at
the time of that appeal, James v. United States, 550 U.S. 192, 210
n.6 (2007), had directly rejected the argument that the . . . residual
clause [in a similar statute, the Armed Career Criminal Act
(“ACCA”),] was unconstitutionally vague.” Id. at 1287. Thus,
Granda argued, James had “deprive[d] litigants of the tools” to
mount the challenge he brought to § 924(c)’s residual clause. Id.
We rejected that argument. We explained that James con-
cerned a different statute, so it was not on point. Id. Plus, in that
decision several justices averred that ACCA’s residual clause may
be susceptible to a vagueness challenge. Id. After James, litigants
challenged ACCA’s residual clause, and if James did not deprive
these litigants of the tools to challenge their convictions, “it surely
did not deprive them of the tools to challenge the § 924(c) residual
clause, a clause to which James did not even apply.” Id. “Moreover,
the case law extant 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. (internal quotation
marks omitted) (citing cases ranging in dates from 1986 through
2007 challenging various portions of § 924(c)).
Herron notes that his direct appeal was decided before
James. He asserts that before James “no litigants had contended
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that the §924(c) residual clause was . . . vague.” Appellant Br. at 22.
Setting aside whether it is true that the argument had not been
made—Herron provides no citation in support of his assertion—
“the behavior of other litigants is not the whole of the inquiry.”
Granda, 990 F.3d at 1288. “[E]ven if others have not been raising a
claim, the claim may still be unnovel if a review of the historical
roots and development of the general issue involved indicate that
petitioners did not lack the tools to construct their constitutional
claim.” Id. at 1287 (internal quotation marks omitted). The absence
of James, which was not about § 924(c)’s residual clause and in fact
upheld a similar clause in a different statute (thus arguably making
a vagueness challenge less likely to succeed), does not so alter the
landscape as to make this case materially distinguishable from
Granda. For the same reasons articulated in Granda, Herron’s
claim is unnovel, and he cannot show cause to overcome the pro-
cedural default to which his claim is subject.
Given that Herron cannot demonstrate cause, it is immate-
rial whether he can show prejudice. His claim is procedurally de-
faulted, and he cannot overcome the default. We need not address
the two additional questions in Herron’s COA, because both be-
come relevant only if the procedural default could be excused. See
id. at 1292 (explaining, after holding that the movant had not over-
come a procedural default, that he alternatively could not show a
reasonable possibility that the error was harmful). Thus, we affirm
the judgment of the district court.
AFFIRMED.