Carl Richard Samson v. United States

C
       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                                                      [DO NOT PUBLISH]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
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          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).
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         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


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         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.




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         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


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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

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