Solomon v. United States

(1) If the Supreme Court in United States v. Davis, 139 S. Ct. 2319 (2019) holds §924(c)(3)(B) is unconstitutionally vague, is that ruling retroactively applicable to cases on collateral review? (2) If the court in Davis reinterprets §924(c)(3)(B) to require a “conduct-based” approach because the statute is unconstitutionally vague under the categorical approach, does a successive §2255 petition challenging a conviction under the unconstitutional categorical approach “contain . . . a new rule of constitutional law” as required by §2255(h)(2)?

Petitioner was found guilty of crimes relating the Hobbs Act and carrying a firearm during a “crime of violence.”  The Eleventh Circuit Court of Appeals affirmed. In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court found the residual clause of §924(e)(2)(B)(ii) void for vagueness and that Johnson was retroactively applicable.  Petitioner filed his second §2255 motion after the Johnson decision.  Because the Eleventh Circuit, in Ovalles v. United States, 861 F.3d 1257(11th Cir. 2017), held Johnson did not apply to the risk-of-force clause in §924(c)(3)(B), the district court denied petitioner’s motion. In response to Sessions v. Dimaya, 138 S.Ct. 1204 (April 17, 2018), holding that under Johnson, 18 U.S.C. §16 was unconstitutionally vague, the Eleventh Circuit vacated Ovalles and chose to adopt a “conduct-based approach.” and affirmed denial of Petitioner's motion. Petitioner argues that his conviction is predicated on the same issue as Davis and that the Court, in Davis, will decide whether the residual clause in §924(c)(3)(B) is unconstitutionally vague. Further, Petitioner argues that if the Court rules the statute unconstitutionally vague, it should reverse his case under Welch, but if it adopts a conduct-based approach, it should determine whether challenging the categorical approach “contains a new rule of constitutional law” under §2255.  VACATED and REMANDED.