O'Halloran v. USA

Filing 23

///ORDER re: 1 Motion to Vacate Sentence - 2255. The jury instructions given with respect to the Section 924(c) counts, while retroactively rendered erroneous by the Davis decision, were nevertheless harmless, given that the conspiracy to rob and the substantive robbery counts (the potential predicates) were factually and pragmatically coextensive. The robbery offenses qualified as crimes of violence predicates, and the jury's verdict on the Section 924(c) counts remain valid. Judgment shall enter in accordance with this order and thecourts previous order (amending the sentence) (document no. 17). So Ordered by Judge Steven J. McAuliffe.(lw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Michael K. O’Halloran
v.

Case No. 17-cv-330-SM
Opinion No. 2021 DNH 019

United States of America
ORDER
The issue remaining in this habeas case is whether
petitioner’s two convictions for using or carrying a firearm in
connection with a crime of violence (18 U.S.C. § 924(c)) should
be vacated, given the Supreme Court’s holding in United States
v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (2019), invalidating the
“residual clause” in Section 924(c).
retroactive.

The Davis holding is

United States v. Bowen, 936 F.3d 1091, 1098 (10th

Cir. 2019).

Petitioner asserts that his Section 924(c) convictions
might have been predicated on his convictions for conspiracy to
commit robbery (Counts 4 and 9 of the Indictment).

Because

conspiracy does not qualify as a “crime of violence,” under the
“force” clause of Section 924(c), and the residual clause (that
might have covered it) is invalid, he moves to vacate the

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Section 924(c) convictions.

Brown v. United States, 924 F.3d

1069, 1075-76 (11th Cir. 2019).

But, petitioner was also convicted of two substantive Hobbs
Act robbery offenses (Counts 5 and 10), which do qualify as
predicate crimes of violence under Section 924(c).

The

indictment referred to both the conspiracy to commit robbery,
and the substantive robbery counts as potential predicates, as
did the jury instructions.
stated as:

Petitioner’s position is fairly

If the Section 924(c) convictions rested on the

conspiracy counts and not the substantive robbery counts, then
those convictions must be vacated and, since that cannot be
known, it must be presumed to be so.

This issue has been raised a number of times since the
Davis opinion.

Generally, “when the valid and invalid predicate

offenses are coextensive, a reasonable probability does not
exist that the jury convicted based only on the invalid
offense.”

Durfee v. United States, 2020 WL 1942324, at * 4

(D.N.H. April 20, 2020) citing cases.

In such a case, the jury

instructions referencing the invalid predicate offense, while
erroneous, are harmless.

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That is precisely the situation here.

The conspiracy

counts related to the same robberies charged in the substantive
counts, and the jury convicted petitioner of both the conspiracy
and substantive robbery offenses.

“It does not make sense that

the jury could find the petitioner used a firearm in the
conspiracy but not the robbery.”

Id., citing Johnson v. United

States, 2019 WL 1790218, at * 6 (C.D. Calif. April 23, 2019).
“Further, strong evidence of the petitioner’s involvement in the
robbery itself supports a conclusion that the Hobbs Act robbery
was [a] predicate offense found by the jury.”

Id.

Conclusion
The jury instructions given with respect to the Section
924(c) counts, while retroactively rendered erroneous by the
Davis decision, were nevertheless harmless, given that the
conspiracy to rob and the substantive robbery counts (the
potential predicates) were factually and pragmatically
coextensive.

The robbery offenses qualified as “crimes of

violence” predicates, and the jury’s verdict on the Section
924(c) counts remain valid.

Judgment shall enter in accordance with this order and the
court’s previous order (amending the sentence) (document no.
17).

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Certificate
As petitioner has not made a substantial showing of the
denial of a constitutional right (28 U.S.C. § 2253(c)(2)) with
respect to the validity of his two Section 924(c) convictions,
the court declines to issue a certificate of appealability.
Petitioner is, however, free to seek such a certificate from the
United States Court of Appeals, located in Boston,
Massachusetts.

Rule 11, Rules Governing Section 2255

Proceedings.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
January 25, 2021
cc:

Charles J. Keefe, Esq.
Seth R. Aframe, AUSA
U.S. Probation
U.S. Marshal

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