21-2471-pr Davis v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of March, two thousand twenty-four.

PRESENT:

EUNICE C. LEE, ALISON J. NATHAN, Circuit Judges.

JED S. RAKOFF, District Judge. * ------------------------------------------------------------------ TOUSSAINT DAVIS,

Petitioner-Appellant,

v. No. 21-2471-pr

UNITED STATES OF AMERCA,

Respondent-Appellee.

------------------------------------------------------------------

* The Honorable Jed S. Rakoff, of the United States District Court for the Southern District of New York, sitting by designation.

1 For Petitioner-Appellant: Randall D. Unger, Kew Gardens, NY.

For Respondent-Appellee: Thomas R. Sutcliffe, Steven D. Clymer, for Carla B. Freedman, United States Attorney for the Northern District of New York, Syracuse, NY.

Appeal from a September 29, 2021 judgment of the United States District Court for the

Northern District of New York (Mordue, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED. Judge Rakoff concurs in the

judgment and writes separately.

Toussaint Davis appeals from the district court’s denial of his

petition,

which sought to vacate his conviction and life sentence pursuant to

(j)(1) for

murder as a result of the possession and discharge of a firearm in furtherance of a crime of violence.

Following a jury trial, Davis was convicted of (1) conspiracy to interfere with interstate

commerce by robbery, in violation of the Hobbs Act, 18 U.S.C § 1951(a); (2) interference with

interstate commerce by robbery, in violation of the Hobbs Act,

(a) and

; and (3) murder as a result of possession and discharge of a firearm in furtherance of a crime

of violence, in violation of

(j)(1). 1 Davis’s § 2255 petition argued that there was

no valid crime of violence predicate as required for his § 924(j)(1) conviction because conspiracy

to commit Hobbs Act robbery is no longer a crime of violence following United States v. Davis,

1 The district court sentenced Davis to concurrent terms of 240 months’ imprisonment on the conspiracy and substantive robbery counts and life imprisonment on the murder count. This Court affirmed the conviction and sentence, United States v. Ward,

(2d Cir. 2012) (summary order), and the Supreme Court denied certiorari, Davis v. United States,

(2013).

2

(2019) (no relation to petitioner). And since the jury had been instructed that both

conspiracy and substantive Hobbs Act robbery were crimes of violence and thus valid predicates

for § 924(j)(1), Davis’s § 2255 petition claimed that it was impossible to tell whether his § 924(j)(1)

conviction rested on the invalid predicate of conspiracy to commit Hobbs Act robbery. In the

alternative, Davis argued that the substantive Hobbs Act robbery was not an independent, valid

predicate for § 924(j)(1) because the jury had been instructed as to Pinkerton 2 liability for that

count. Therefore, applying Davis, he argued that a Pinkerton conviction cannot constitute a crime

of violence because it does not require showing the use, attempted use, or threatened use of force.

In response, the government argued, in part, that Davis’s habeas petition was not timely because

it had been filed over a year after the decision in Davis and that, in any event, the petition was

procedurally barred because Davis had not raised these arguments on direct appeal.

The district court rejected the government’s timeliness argument, assumed the motion was

not procedurally barred, and denied Davis’s petition on the merits. The court determined that

Davis’s petition was timely because, under the prison mailbox rule, 3 Davis had filed his petition

within a year of the decision in Davis. Nor was Davis’s argument procedurally barred, 4 assumed

the district court, because the novelty of the Davis argument was cause for default. Nevertheless,

in analyzing Davis’s case on the merits, the district court did not find that there was any prejudice

to Davis. Though the conspiracy count was no longer a valid predicate following Davis, the district

court concluded that any error was harmless since “the jury had a separate and sound predicate

crime of violence” in the substantive robbery charge. Davis v. United States, No. 09-CR-390

2 Pinkerton v. United States,

(1946). 3 Under the prison mailbox rule, a notice of appeal is considered “filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack,

(1988). 4 To overcome a procedural bar, a petitioner must show (1) cause for not raising the issue on direct appeal and “prejudice resulting therefrom; or (2) actual innocence.” Sapia v. United States,

(2d Cir. 2005) (quoting Rosario v. United States,

(2d Cir. 1998)).

3 (NAM),

, at *5 (N.D.N.Y. Sept. 29, 2021). This was so because “[t]here is no

reasonable interpretation of the facts under which the jury . . . would have found that a firearm was

used in the conspiracy to commit [the] robbery but not in the robbery itself.”

The district court,

on two grounds, rejected Davis’s alternative argument that the substantive robbery charge, even if

an independent predicate, was invalid because it may have rested on Pinkerton liability: (1)

“Pinkerton liability does not somehow transform a conviction for substantive [] robbery into one

for [] robbery conspiracy;” and (2) “there was sufficient evidence for the jury to find Petitioner

guilty of the Count 2 robbery charge even without using the Pinkerton theory of liability.”

(alteration adopted) (internal citation and quotation marks omitted). The district court denied

Davis’s petition but issued a certificate of appealability as to the Pinkerton question.

On appeal, Davis renews the arguments made below. We assume the parties’ familiarity

with the underlying facts, procedural history, and issues on appeal, to which we refer only as

necessary to explain our decision to affirm the district court’s denial of the petition.

* * *

Because the certificate of appealability was limited to the Pinkerton question, our review

is cabined to Davis’s argument that the substantive robbery count is an invalid predicate because

it may have rested on a Pinkerton theory of liability. See Armienti v. United States,

(2d Cir. 2000) (“We will not address a claim not included in the certificate of appealability.”).

We review this question of law de novo, see Triana v. United States,

(2d Cir.

2000), and conclude that Davis’s substantive robbery conviction is a valid predicate as a crime of

violence even if premised on a Pinkerton theory of liability. 5

Davis argues that his substantive robbery conviction is not a valid predicate for his § 924(j)

5 The government argues that the district court erred in holding that there was cause for Davis’s procedural default. Because Davis’s argument fails on the merits, we assume without holding that his claim is not procedurally barred.

4 conviction because the jury was instructed on a Pinkerton theory of liability, and under a Pinkerton

theory, “criminal intent to commit the substantive crime ‘is established by the formation of the

conspiracy.’” Appellant’s Br. at 16 (quoting Pinkerton,

). Thus, according to

Davis, under Pinkerton, “it is not necessary to prove that the defendant intended to use or intended

that someone else use force against the victim,” as required by Davis. Id. at 15.

Davis’s argument fails because, as a matter of law, defendants convicted under Pinkerton

are held liable for the substantive offense of their co-conspirator. See United States v. Coplan,

(2d Cir. 2012) (“Pinkerton is not a broad principle of vicarious liability . . . . Instead,

Pinkerton provides that a defendant who does not directly commit a substantive offense may

nevertheless be liable . . . .”) (internal quotation marks and citation omitted). The substantive

offense here—Hobbs Act robbery—is a valid predicate, i.e., a crime of violence. See United States

v. Hill,

(2d Cir. 2018).

Our analysis here is controlled by this Court’s post-Davis decision in Gomez v. United

States,

(2d Cir. 2023). In Gomez, this Court observed that “every circuit to address

the issue has held that Pinkerton liability for a crime of violence can support a § 924(c) conviction,”

and went on to hold the same. 6 Id. at 109–10. Gomez held that “[e]ven if the jury found [the

defendant] guilty of [a crime of violence] based on a Pinkerton theory, [the defendant’s] § 924(c)

conviction would remain valid because the acts of his co-conspirators are imputed to him.” Id. at

110.

To convict Davis of substantive Hobbs Act robbery under a Pinkerton theory, the jury must

have found (1) that Davis’s co-conspirators committed substantive Hobbs Act robbery, an element

6 To be convicted under § 924(j), a person must, “in the course of a violation of subsection (c), cause[] the death of a person through the use of a firearm.”

(j). Thus, the analysis regarding the predicate crime of violence is the same under § 924(j) and § 924(c).

5 of which is the use of force, Hill,

, and (2) that the commission of that offense was

reasonably foreseeable to Davis, United States v. Romero,

(2d Cir. 1990). Having

found both, the jury could find Davis guilty of substantive Hobbs Act robbery, which contains the

necessary use of force element and is a crime of violence. Hill,

. Thus, even if the

jury convicted on a Pinkerton theory, it convicted Davis of substantive Hobbs Act robbery, not

conspiracy to commit Hobbs Act robbery, and substantive Hobbs Act robbery is a valid predicate

for the § 924(j) conviction.

* * *

For the above reasons, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

6 RAKOFF, D.J., concurring:

Pinkerton v. United States,

(1946), which erroneously applies

civil agency rules to criminal cases and thereby hugely increases the individual

exposure to severe sentences of even minor conspiracy participants, was in my

view wrongly decided from the outset. See

(Rutledge, J., dissenting in

part) (“Whether or not his commitment to the penitentiary had that effect, the

result is a vicarious criminal responsibility as broad as, or broader than, the

vicarious civil liability of a partner for acts done by a co-partner in the course of

the firm’s business. Such analogies from private commercial law and the law of

torts are dangerous, in my judgment, for transfer to the criminal field.”). To this

day, Pinkerton continues to wreak havoc on the most fundamental principle of

criminal law: that a defendant should only be punished for what he actually

intended. See, e.g., Morissette v. United States,

(1952).

Nevertheless, recognizing that Pinkerton is well-established law, I join in the

summary order.

7