DocketNumber： 04-CR-0903 (ARR)
Judges： Ross
Filed Date： 2/13/2017
Status： Precedential
Modified Date： 11/7/2024
OPINION AND ORDER
Petitioner William Thrower brings this motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255(a). In 2005, Thrower was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), an offense that, on its own, carries a maximum penalty of 10 years’ imprisonment, see id. § 924(a)(2). Because I determined that Thrower had three previous convictions for violent felonies, he was subject to a mandatory minimum of 15 years’ imprisonment under the Armed Career Criminal Act (“ACCA”), see id. § 924(e)(1). Thrower argues that his 15-year sentence is no longer valid in light of Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Johnson, the Supreme Court struck down the ACCA’s residual clause as unconstitutionally vague. Id. at 2257. According to Thrower, he no longer has three qualifying predicate offenses because I may have relied on the residual clause in classifying one or more of his convictions as violent felonies. Without three qualifying convictions, Thrower is subject to a maximum prison sentence of 10 years, which he has already served. For the reasons explained below, Thrower’s motion is granted.
BACKGROUND
In April 2005, Thrower was convicted by a jury of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Compl., Dkt. #l;
In October 2011, Thrower filed a petition for a writ of habeas corpus under § 2255, arguing that his counsel had been ineffective. See Mot. to Vacate, Set Aside or Correct Sentence, No. ll-cv-4858, Dkt. #1. I concluded that Thrower’s claims lacked merit and thus denied the petition. See Order at 2, No. ll-cv-4858, Dkt. #21. Thrower requested a certificate of appeala-bility from the Second Circuit, which the Second Circuit denied. See Mandate, No. ll-cv-4858, Dkt. #25.
In June 2016, Thrower sought leave from the Second Circuit to file the instant successive § 2255 petition on the grounds that his 15-year sentence is no longer valid in light of Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). See Mot. for an Order Authorizing the District Court to Consider a Sucees-sive or Second Mot. to Vacate, Set Aside or Correct Sentence at 5-7, Dkt. #82-1. On August 26, 2016, the Second Circuit granted the motion. Mandate, Dkt. #82.
Thrower filed the instant motion pro se on September 9, 2016. See First Pet., Dkt. #83. On January 6, 2017—after the government had responded to Thrower’s pro se petition, but before Thrower filed his reply—I appointed counsel for Thrower, and his petition was subsequently fully re-briefed.
STANDARD OF REVIEW
28 U.S.C. § 2255(a) allows a prisoner to move to vacate, set aside, or correct his sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Even if the petitioner is able to show that the sentencing court committed a constitutional error, the error cannot be redressed through a § 2255 petition unless it had a “substantial and injurious effect” that resulted in “actual prejudice” to the petitioner. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citations omitted); see also Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht’s harmless error standard to § 2255 petition). The petitioner bears the overall burden of proving by a preponderance of the evidence that he is entitled to relief. Alli-Balogun v. United
DISCUSSION
18 U.S.C. § 922(g)(1) prohibits any person who has been convicted of a felony from possessing a firearm. On its own, this crime is punishable by a maximum of 10 years’ imprisonment. Id. § 924(a)(2). However, the ACCA mandates a minimum 15-year sentence for a defendant who illegally possesses a firearm in violation of 18 U.S.C. § 922(g) “and has three previous convictions ... for a violent felony.” Id. § 924(e)(1). The statute defines “violent felony” as follows:
[A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that -
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves. conduct that presents a serious potential risk of physical injury to another ....
Id. § 924(e)(2)(B) (emphasis added). I will refer to subsection (i) as the “force clause,” to the nonitalicized portion of subsection (ii) as the “enumerated offense clause,” and to the italicized portion of subsection (ii) as the “residual clause.” As stated above, in Johnson v. United States, — U.S. —, 135 S.Ct. 2251, 192 L.Ed.2d 569 (2015), the Supreme Court struck down the residual clause as unconstitutionally vague. Id. at 2557. The Court held that this ruling applied retroactively on collateral review of convictions in Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016).
To prevail on his motion, Thrower must first demonstrate that the court committed constitutional error. See Diaz v. United States, No. 16-CV-0323, 2016 WL 4524785, at *5 (W.D.N.Y. Aug. 30, 2016). Thrower can satisfy this requirement by showing that the court may have relied on the residual clause during sentencing. See id. Once Thrower has demonstrated constitutional error, he then bears the burden of proving that the error was prejudicial. See id. Thrower can meet this burden by showing that, absent the residual clause, he no longer has three convictions for violent felonies. See id. at *6. For the reasons explained below, Thrower has met his burden of proving both constitutional error and prejudice.
A. Thrower Has Met His Burden of Demonstrating Constitutional Error
The parties dispute what burden Thrower must meet to demonstrate constitutional error at sentencing. The government argues that Thrower “bears the burden of demonstrating that the district court in fact relied on the residual clause in sentencing him under the ACCA.” Gov’t’s First Opp’n at 4, Dkt. #92 (emphasis added). According to Thrower, he need only show that the court may have relied on the residual clause. Second Pet. at 5-7, Dkt. #97. As explained below, I agree with Thrower’s position.
In support of its argument regarding the burden of proof, the government cites In re Moore, 830 F.3d 1268 (11th Cir. 2016). In Moore, the Eleventh Circuit stated that a petitioner bringing a § 2255 motion bears the “burden of showing that he is entitled to relief’ and that a petitioner cannot meet that burden in a Johnson case “unless he proves that he was sentenced using the residual clause.” Id. at 1273. Thus, “[i]f the district court cannot deter
I find Moore unpersuasive. First of all, it is not settled law even in the Eleventh Circuit. In an opinion published one week after Moore, the Eleventh Circuit stated that the “commentary [in Moore] undoubtedly is dicta.” In re Chance, 831 F.3d 1335, 1339 (11th Cir. 2016). The court proceeded to say that the “dicta ... also seems quite wrong.” Id. First, the Chance court reasoned that a district court following Moore’s dicta could avoid determining whether a crime actually qualifies as a violent felony under either the enumerated offense clause or the force clause “unless the sentencing judge uttered the magic words ‘residual clause.’” See id. at 1340. Second, the court noted that “[njothing in the law requires a judge to specify which clause ... it relied upon in imposing a sentence.” Id. Thus, if a sentencing judge happened to specify that she was relying on the residual clause during one sentencing hearing and not another, the dicta in Moore would subject similarly situated defendants to different treatment “based solely on a chance remark.” Id. at 1341.
I agree with the Chance court’s reasoning. Indeed, as Thrower points out, the vast majority of the district courts that have considered the issue have decided that a petitioner meets his burden of proving constitutional error if the- record is unclear and the petitioner shows that the sentencing court may have relied on. the residual clause in calculating his sentence. See Second Pet. at 5 n.4, Dkt. #97 (collecting cases). These courts have rejected the proposition that, in order to succeed on a § 2255 .petition under Johnson, a petitioner must show that the sentencing court actually relied on the residual clause during sentencing. See, e.g., United States v. Ladwig, 192 F.Supp.3d 1153, 1159 (E.D. Wash. 2016) (“Because [petitioner] has shown that the Court might have relied upon the unconstitutional residual clause in finding that his ... convictions qualified as violent felonies, the Court finds that he has established constitutional...error.”); Shabazz v. United States, No. 3:16-cv-1083, 2017 WL 27394, at *5 (D. Conn. Jan. .3, 2017) (“I find compelling the arguments from other courts that ... a silence in the record should be read in favor of the petitioner because the Residual Clause, written to be a capacious catch-all, was the most direct and efficient route to establishing an ACCA predicate at the time. ... Moreover, requiring k petitioner to make an affirmative showing on" a record that ,.. was made at a time when I had no reason to identify on which ACCA clause his sentence relied would be'inequitable and would render 2015 Johnson relief virtually impossible to obtain.”); Curry v. United States, Nos. 16-CV-22898, 05-CR-20399, 2016 WL 6997503, at *3 (S.D. Fla. Nov. 30, 2016) (“The Court finds Chance persuasive and declines to follow Moore’s suggestion that successive petitioners must prove the Court reliéd upon the'ACCA residual clause ‘in fact’ at sentencing.”); United States v. Wolf, No. 04-CR-347-1,
I agree with the approach taken by these courts. Adopting the government’s position regarding Thrower’s burden of proof would mean that Thrower’s petition would fail simply because I did not, during the sentencing proceeding, specify on which ACCA clauses I was relying. This was simply not an issue at the time, when neither I nor the parties could have predicted that one of the clauses would be found unconstitutional seven years later. It cannot be the case that my lack of specificity means that Thrower’s sentence should be upheld regardless of whether it is still lawful. Accordingly, I conclude that a petitioner can meet his burden of proving constitutional error by demonstrating that his sentence may have been based on the residual clause.
Thrower has met his burden here. It is not entirely clear from the sentencing record which of Thrower’s five felony convictions served as the three ACCA predicates, or which clause, or clauses, of the ACCA I relied on in deciding that they were proper predicates. During the sentencing hearing, I did refer to the 1981 robbery as the “first predicate violent felony” and noted that “the statute specifically identifies ... burglary,” which was “precisely [the] crime for which defendant was convicted.” Sentencing Tr. at 5-6, Gov’t’s First Opp’n Ex. B, Dkt. #92-2. Thus, the record reflects that I determined that first degree robbery and third degree burglary were violent felonies, and that I classified burglary as a violent felony under the enumerated offense clause. Still, two points remain unclear: (1) which conviction served as the third predicate, and (2) which clause, or clauses, I relied on to classify the first degree robbery and the third conviction as violent felonies. Thrower did not raise any specific arguments on these points at sentencing, so I did not see a need to specify my reasoning further. See id. at 4-6. As a result, I cannot say based on the record, or on any independent recollection, that I did not rely on the residual clause in sentencing Thrower.
Because Thrower has met his burden of demonstrating constitutional error, I must determine whether this error was prejudicial.
To prove that any reliance on the residual clause during sentencing was prejudicial, Thrower must demonstrate that, absent the residual clause, he does not have three previous convictions for violent felonies for purposes of the ACCA. See Diaz, 2016 WL 4524785, at *6. As stated above, Thrower had five previous felony convictions when he was sentenced. The government does not contend that Thrower’s larceny conviction qualifies as a violent felony.
In reaching this conclusion, I first decide that I must look to current law, and not the law at the time of Thrower’s sentencing, to determine whether Thrower’s third degree robbery convictions are violent felonies under the force clause. I then conclude that third degree robbery under New York law does not qualify as a violent felony.
1. In Deciding Whether Any Constitutional Error Was Harmless, the Court Applies Current Law
The parties dispute whether I should look to current law, or try to ascertain the law as it stood at the time of Thrower’s sentencing, in order to determine whether Thrower has three convictions for violent felonies without the residual clause, such that any reliance on the residual clause was harmless. The government contends that Thrower may not rely on cases decided after his sentencing to argue that robbery does not qualify as a violent felony under the force clause because such an argument is not based on Johnson, and because “Thrower is not entitled at this stage to the benefit of changes in statutory interpretation that have occurred over the years since he was sentenced.” Gov’t’s First Opp’n at 4-5, Dkt. #92. Thrower responds that “the determination whether there are three prior felonies that qualify as predicates ... is properly based on the law as it is interpreted today.” Second Pet. at 7, Dkt. #97. For the reasons explained below, I conclude that I must look to current case law to determine whether third degree robbery is a violent felony under the ACCA’s force clause.
First, I reject the government’s assertion that Thrower’s argument—that robbery is not a violent felony under the force -clause—is not actually based on Johnson because that case struck down only the residual clause and left the force clause unaffected. Though, as stated above, there is no evidence in the sentencing record elucidating whether I found robbery to be a violent felony under the force clause or the residual clause, prior to Johnson, Thrower “had no viable challenge to his predicate robbery convictions because, even if he could have established that robbery in New York did not qualify under the ÁCCA’s force clause, his prior convictions for third-degree robbery ... likely would have qualified under the residual clause.” Diaz, 2016 WL 4524785, at *5. Accordingly, “[i]t is only as a result of ... Johnson’s voiding of the residual clause that [Thrower] could ‘reasonably argue that he is no longer eligible for the ACCA enhancement.’ ” Id. (quoting Ladwig, 192 F.Supp.3d at 1159-60); see also Shabazz, 2017 WL -27394, at *6 (“[T]he availability of [the petitioner’s' force clause] argument .;. ist wholly a product of the new rule announced in 2015 Johnson. Prior to 2015 Johnson, [petitioner] would not have had a viable challenge to his predicate robbery convictions. because the [r]esidual clause would have picked up wherever the [force] clause left off.”). I am thus unpersuaded by the government’s position that Thrower’s challenge to the classification of his robbery convictions as predicate violent felonies is not based on Johnson.
The government cites Stanley v. United States, 827 F.3d 562 (7th Cir. 2016), in support of the proposition that a challenge to the classification of a conviction as a violent felony is unrelated to Johnson. Gov’t’s First Opp’n at 5, Dkt. #92. In Stanley, however, the Seventh Circuit was able to determine conclusively that each of the petitioner’s prior convictions was unaffected by Johnson. Stanley, 827 F.3d at 564. Specifically, the petitioner had a drug conviction, which is not implicated by the definition of a violent felony. Id.', see also 18 U.S.C. § 924(e) (stating that 15-year mandatory minimum applies to “a person who ... has three previous convictions ... for a violent felony or a serious drug offense” (emphasis added)). Second, the petitioner had a conviction for illegal possession of a firearm, which was not a proper predicate felony “not because of Johnson, but because ... [t]he Sentencing Commission has concluded that a felon’s possession of a gun ... is not a crime of violence .,.. ” Stanley, 827 F.3d at 565. Finally, the petitioner had a conviction for aggravated battery of a police officer, which “[t]he district court counted ... under the [force] clause.” Id. Thus, the petitioner in Stanley did not have a viable argument that his sentence was affected by the residual clause. Here, by contrast, I may have relied on the residual clause in concluding that Thrower had three convictions for violent felonies. Indeed, as Thrower points out, courts routinely relied on the residual clause pre-Johnson in order to classify robbery offenses as violent felonies. See, e.g., Washington v. United States, Nos. 12-CR-6072, 16-CV-6008, 2016 WL 1572005, at *1 (W.D.N.Y. Apr. 19, 2016); Lynch v. United States, Nos. 03 Crim. 928, 14 Civ. 4687, 2015 WL 9450873, at *1 (S.D.N.Y. Dec. 8, 2015). Accordingly, Stanley does nothing to advance the government’s argument. Thrower’s challenge to the classification of his robbery convictions as violent felonies is based on Johnson and is thus cognizable on collateral review,
b. Both Precedent and Policy Considerations Weigh in Favor of Applying Current Law on Harmless Error Review
Analogous case law, as well as important policy considerations, weigh in favor of
The Eastern District of Washington explained the relevant public policy considerations as follows:
Attempting to recreate the legal landscape at the time of a defendant’s conviction is difficult enough on its own. But in the context of Johnson claims, the inquiry is made more difficult by the complicated nature of the legal issues involved.... An inquiry that requires judges to ignore intervening decisions that, to some degree, clear the mire of decisional law seems to beg courts to reach inconsistent results. Current case law has clarified the requisite analysis and applying that law should provide greater uniformity, helping to ensure that like defendants receive like relief.
Lading, 192 F.Supp.3d at 1160.
The concerns for fairness and consistency articulated in Ladwig echo the Supreme Court’s rationale for applying current law retroactively “for purposes of determining whether a party has demonstrated prejudice” in the context of ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Mosby v. Senkowski, 470 F.3d 515, 524 (2d Cir. 2006) (citing Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993)). In reaching its determination that current law should apply to the prejudice analysis in Strickland claims, the Supreme Court reasoned that “the ‘prejudice’ component of the Strickland test ... focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart, 506 U.S. at 372, 113 S.Ct. 838. Such “[^reliability or unfairness ... result[s] if the ineffectiveness of counsel ... deprive[s] the defendant of [a] substantive or procedural right to which the law entitles him,” that is, a substantive or procedural right provided by current law. Id. Here, too, it would be unreliable and unfair to habeas petitioners if courts were to ignore case law clarifying statutory definitions when determining whether the petitioners’ sentences are lawful.
Accordingly, numerous district courts that have considered the issue agree that courts should look to current law in deciding whether a crime constitutes a violent felony when a petitioner challenges his sentence under § 2255. See, e.g., Ladwig, 192 F.Supp.3d at 1161 (“Because there is precedent for doing so, and in consideration of the ... problems raised by applying old law, the Court will apply current case law to determine whether [petitioner’s] convictions qualify as predicate felonies without the residual clause.”); Diaz, 2016 WL 4524785, at *5 (“[B]oth Supreme Court and Second Circuit precedent support the proposition that a court can and should apply current case law when determining whether a constitutional error was harmless or prejudicial in the habeas context.”); United States v. Hamilton, 235 F.Supp.3d 1229, 1235, No. 06-CR-188, 2017 WL 368512, at *4 (N.D. Okla. Jan. 25, 2017) (“Once Johnson permits Defendant to collaterally challenge his sentence based on a residual-clause error, the Court must apply current law on the enumerated offense clause to determine if that error was injurious or harmless.”); Curry v. United States, Nos. 16-CV-22898, 05-CR-20399, 2016 WL 6997503, at *3 (S.D. Fla. Nov. 30, 2016) (“The Court finds untenable the Government’s position that the Court should ignore current binding precedent and instead apply the law at Curry’s 2005 sentencing to determine whether Curry’s burglary convictions qualified as ‘crimes of violence’ under the enumerated clause.”); Johnson v. United States, No. 4:16-cv-
In support of its position that the court should disregard current law, the government relies on Belk v. United States, No. 16-765, 2016 WL 1587223 (2d Cir. Apr. 19, 2016). In Belle, a petitioner moved for leave to file a successive § 2255 motion arguing that, in light of Johnson, “his New York State robbery convictions no longer qualified] as predicate offenses for ACCA purposes.” Id. at *1. The Second Circuit denied petitioner’s motion in an unpublished disposition, stating that “[t]here [was] no evidence that Petitioner’s sentence was enhanced under the provision of the ACCA that was found unconstitutional in Johnson. In any event, at the time of his sentencing, it was clearly established in this Circuit that Petitioner’s robbery convictions qualified as ACCA predicates under § 924(e)(2)(B)(i),” id. which is the force clause. The court thus seemed to assume, without any analysis—or any citations— that the proper inquiry on a § 2255 motion is whether robbery qualified as a violent felony at the time of sentencing, and not when the petitioner brought his motion. Because this unpublished, non-precedential disposition contradicts the reasoned analysis undertaken by many district courts across the country, I do not find the government’s reliance on it to be persuasive.
The government also argues that the decisions on which I rely below, which clarify the definition of “violent felony” and “crime of violence,”
Thus, I agree with the district courts that have concluded that courts .should look to current law when deciding whether possible reliance on the residual clause was
2. Under Current Law, Third Degree Robbery Is Not a Violent Felony
I next analyze whether Thrower’s third degree robbery convictions qualify as violent felonies for purposes of the ACCA. Because robbery is not an enumerated felony in the ACCA, see 18 U.S.C. § 924(e)(2)(B)(ii), these convictions would have to satisfy the statute’s “force clause” in order for Thrower’s sentence to be lawful. The force clause provides that a crime is a “violent felony” if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” See id. § 924(e)(2)(B)®. I must apply the categorical approach to determine whether third degree robbery under New York law necessarily satisfies this requirement. See United States v. Hill, 832 F.3d 135, 139 (2d Cir. 2016) (“To determine whether an offense is a crime of violence, courts employ ,.. the ‘categorical approach.’ ” (citation omitted)); United States v. Johnson, 220 F.Supp.3d 264, 270-71, No. 15-CR-32, 2016 WL 6684211, at *5 (E.D.N.Y. Nov. 12, 2016) (explaining the categorical approach for determining whether a crime satisfies the force clause). “Under the categorical approach, [courts] focus on the intrinsic nature of the offense rather than on the circumstances of the particular crime. Consequently, only the minimum criminal conduct necessary for conviction under a particular statute is relevant.” United States v. Acosta, 470 F.3d 132, 135 (2d Cir. 2006). In other words, if it is possible to commit third degree robbery ivithout “the use, attempted use, or threatened use of physical force against the person of another,” then third degree robbery is not categorically a violent felony. For the reasons explained below, I conclude that third degree robbery does not qualify as a violent felony under the force clause.
The government correctly notes that, before 2010, the Second Circuit held in binding, published decisions that robbery is a violent felony under the force clause. See, e.g., United States v. Brown, 52 F.3d 415, 426 (2d Cir. 1995). However, a 2010 Supreme Court decision, United States v. Johnson, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (“Curtis Johnson ”), changes this analysis. In Curtis Johnson, the Supreme Court decided that a Florida battery offense was not categorically a violent felony under the ACCA. Id. at 137-39, 130 S.Ct. 1265. In so deciding, the Court defined the term “physical force” as it is used in § 924(e)(2)(B)®. See id. at 138-39, 130 S.Ct. 1265. The Court decided “that in the context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. 1265. The Court reasoned that, “[e]ven by itself, the word ‘violent’ in § 924(e)(2)(B) connotes a substantial degree of force.... When the adjective ‘violent’ is attached to the noun ‘felony,’ its connotation of strong physical force is even clearer.’ ” Id. (citations omitted). I must thus analyze whether third degree robbery under New York law necessarily involves the use of “violent force,” as defined in Curtis Johnson.
New York law states that “[a] person is guilty of robbery in the third degree when he forcibly steals property.” N.Y. Penal Law § 160.05. The law further explains as follows:
A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the*384 retention thereof immediately after the taking; or
2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission, of the larceny.
N.Y. Penal Law § 160.00.
I look to New York state court decisions for binding interpretations of this statute. See Curtis Johnson, 559 U.S. at 138, 130 S.Ct. 1265. Case law from the Appellate Division shows that defendants can be convicted of robbery without using violent force. See, e.g., People v. Bennett, 219 A.D.2d 570, 631 N.Y.S.2d 834, 834 (1995) (defendant guilty of robbery in the second degree where “he and three others formed a human wall that blocked the victim’s path as the victim attempted to pursue someone who had picked his pocket, allowing the robber to get away”); People v. Lee, 197 A.D.2d 378, 602 N.Y.S.2d 138, 138 (1993) (defendant guilty of second degree robbery where he “bumped his unidentified victim, took money, and fled while another forcibly blocked the victim’s pursuit”); People v. Patton, 184 A.D.2d 483, 585 N.Y.S.2d 431, 431 (1992) (defendant guilty of second degree robbery where “co-defendant actually stole [a] chain and medallion” from the victim, while defendant “acted as a blocker” by'“stepping] in front of [the victim] and persistently shov[ing] him back”); People v. Safon, 166 A.D.2d 892, 560 N.Y.S.2d 552, 552 (1990) (defendant guilty of third degree robbery where “store clerk grabbed the hand in which defendant was holding ... money and the two tugged at each other until defendant’s hand slipped out of the glove holding the money” because this was “sufficient to prove that defendant used physical force for the purpose of overcoming the victim’s resistance to the taking”).
Each of these cases involves the use of a degree of force than is lesser-than “force capable of causing physical pain or injury to another person,” see Curtis Johnson, 559 U.S. at 140, 130 S.Ct. 1265, namely, blocking a victim’s path, bumping or shoving the victim, and tugging at á victim’s hand. Thus, under New York law, a defendant can be convicted of robbery when he uses force sufficient to overcome a victim’s resistance without necessarily putting the victim at risk of pain or injury. Other courts have so held.
The government cites a number of New York cases to argue that robbery under New York law necessarily involves the level of violent force described in Curtis Johnson. See. Gov’t’s Second Opp’n at 4, Dkt. #100. However, as the government seems to acknowledge in its explanation of the cases, they show only that “the crime of robbery in New York cannot be accomplished by mere unwanted touching or a sudden and stealthy seizure.” Id. Of
The government also cites a number of Second Circuit cases in support of its contention that robbery under New York law remains a violent felony after Curtis Johnson. Gov’t’s First Opp’n at 5, Dkt. #92; Gov’t’s Second Opp’n at 2-3, Dkt. #100. However, each of the cases that the government cites was either decided prior to Curtis Johnson, or is a non-precedential summary order that does not analyze robbery in light of Curtis Johnson’s definition. The only published post-Curtis Johnson decision that the government cites does not squarely address this issue because the defendant in that ease conceded that third degree robbery was a violent felony under the force clause, and the Second Circuit merely acknowledged that it had so held in the 1995 Brown case cited above. See United States v. Miles, 748 F.3d 485, 490 (2d Cir. 2014) (citing Brown, 52 F.3d at 425-26).
“Lower courts are bound by Second Circuit precedent ‘unless it is expressly or implicitly overruled’ by the Supreme Court or an en banc panel of the Second Circuit.” In re S. African Apartheid Litig., 15 F.Supp.3d 454, 459 (S.D.N.Y. 2014). I conclude that the Second Circuit precedent holding robbery to be a violent felony under the force clause has been implicitly overruled by the Supreme Court’s definition of “violent felony” in Curtis Johnson, because, as explained above, it is possible to commit third degree robbery without using “force capable of causing physical pain or injury to another person,” see Curtis Johnson, 559 U.S. at 140, 130 S.Ct. 1265.
Thus, I conclude that third degree robbery and attempted third degree robbery under New York law do not necessarily involve the use of “violent force.” As a result, those crimes cannot be predicate violent felonies under the ACCA’s force clause. Because Thrower does not have three qualifying violent felony convictions, any reliance on the residual clause during Thrower’s sentencing could not have been harmless, and Thrower’s § 2255 motion must be granted. See, e.g., Curry, 2016 WL 6997503, at *4 (“[Petitioner] is entitled to relief if he can establish by a preponderance of the evidence that: (1) the record does not refute his assertion that the sentencing Court may have relied on the residual clause in applying the ACCA enhancement, in violation of Johnson, and (2) under current binding precedent ... his ... convictions no longer qualify as ACCA ‘crimes of violence.’ ”). Thrower is thus entitled to resentencing. See McKnight v. United States, Nos. 6:16-cv-6396, 6:05-cr-6024, 2016 WL 6663349, at *1 (W.D.N.Y. Nov. 11, 2016). Without three qualifying convictions for violent felonies, Thrower is subject to a maximum sentence, of 10 years’ imprisonment, see 18 U.S.C, § 924(a)(2), which he has already served.
CONCLUSION
For the foregoing reasons, Thrower’s 28 U.S.C. § 2255 motion is grantéd. Thrower’s immediate release is ordered because he has now served more than the statutory maximum for the offense of conviction. See Lynch v. United States, 03 Crim. 928, 14 Civ. 4687, 2015 WL 9450873, at *3 (S.D.N.Y. Dec. 8, 2015). This order will
SO ORDERED.
. Unless otherwise noted, the citations to docket entries are in case number 04-cr-903.
. I cite to Thrower’s pro se petition, Dkt. #73, as “First Pet.”, and to his counseled brief, Dkt. #97, as "Second Pet.” Likewise, I cite to the government’s opposition to Thrower’s pro se petition, Dkt, #92, as "Gov't’s First Opp’n,” and to the government’s opposition to Thrower’s counseled brief, Dkt #100, as "Gov’t’s Second Opp’n.”
. This point is not contested, and it does not answer the specific question at issue here: whether a petitioner can meet his burden of demonstrating constitutional error under Johnson where the sentencing record does not reveal on which ACCA.clause a district court relied.
. A minority of district courts in this circuit have determined that harmless error review should not be conducted in this context because a “Johnson error is a structural error not amenable to Brecht's harmless error review.” Shabazz v. United States, No. 3:16-cv-1083, 2017 WL 27394, at *6 (D. Conn. Jan. 3, 2017) (citing Villanueva v. United States, 191 F.Supp.3d 178 (D. Conn. 2016)). Because I conclude that, in any event, my possible reliance on the residual clause was not harmless, I need not resolve the question of whether a Johnson error is a structural error.
. The government likely does not rely on Thrower’s larceny conviction because, when upholding Thrower’s sentence on direct appeal, the Second Circuit specified that larceny qualified as a violent felony under the ACCA’s residual clause. Thrower, 584 F.3d at 72.
. Accordingly, I need not decide whether third degree burglary and first degree robbery are qualifying violent felonies.
. The definition of a "crime of violence,” the phrase used in U.S.S.G. § 4B1.2(a), "is identical in all material respects to” the definition of "violent felony” in the ACCA. United States v. Reyes, 691 F.3d 453, 458 n.1 (2d Cir. 2012).
. A Second Circuit panel has analyzed New York case law to come to this same conclusion, see United States v. Jones, 830 F.3d 142 (2d Cir. 2016), though the decision was vacated and held in abeyance pending the Supreme Court's disposition on issues unrelated to this case.