Cornell Adley v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14527
Non-Argument Calendar
____________________
CORNELL ADLEY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 1:16-cv-22907-CMA,
1:03-cr-20678-CMA-2
____________________
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2 Opinion of the Court 20-14527
Before WILSON, J ILL PRYOR , and BRANCH, Circuit Judges.
PER CURIAM:
Cornell Adley, a federal prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2255 motion to vacate. His motion raises
Stromberg error, which means the jury was instructed on alterna-
tive theories, one of which was invalid. The district court denied
relief but granted a certificate of appealability as to whether the
Stromberg error was harmless. Adley argues on appeal that he did
not procedurally default the
Stromberg claim, and that the
Strom-
berg error was not harmless. For the reasons that follow, we affirm
the district court, finding that the
Stromberg error was harmless.
We need not reach the question of procedural default.
This case arose from a string of violent crimes including
armed robberies and home invasions in the late 1990s. According
to the government, Adley and his co-conspirators committed these
crimes to secure enough money to purchase drugs and open “a
drug hole” from which to sell the drugs.
United States v. Brown,
227 F. App’x 795, 797 (11th Cir. 2007) (per curiam). In 2004, a grand
jury returned a Third Superseding Indictment charging Adley and
his co-defendants with: conspiracy to possess with intent to distrib-
ute cocaine, in violation of 21 U.S.C. § 846 (Count 1); conspiracy to
commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a)
(Count 2); and conspiracy to use and carry a firearm during and in
relation to a crime of violence and a drug trafficking crime in vio-
lation of 18 U.S.C. § 924(o) (Count 3). Adley alone was also charged
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20-14527 Opinion of the Court 3
with attempted possession with intent to distribute a controlled
substance, in violation of 21 U.S.C. § 846 (Count 4); attempted
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 5);
and using and brandishing a firearm during and in relation to a
crime of violence and drug trafficking crime in violation of 18
U.S.C. § 924(c) (Count 6).
At trial, the jury convicted Adley on all six counts. Based on
the jury’s general verdict form, the predicate for Adley’s convic-
tions under § 924(o) (Count 3) and § 924(c) (Count 6) could have
been either a crime of violence or a drug trafficking offense; the
general verdict form did not specify which. The jury also returned
a supplemental verdict form, in which it found, in relevant part,
that firearms were involved in the offenses charged in Counts 1, 2,
4, and 5.
The district court sentenced Adley to a total of 387 months:
327 months as to Counts 1 and 4, 240 months as to Counts 2, 3, and
5, all running concurrently, and 60 months as to Count 6 to run
consecutively. On appeal, we affirmed both Adley’s conviction and
sentence.
See Brown, 227 F. App’x 795. Adley then filed his first
28 U.S.C. § 2255 motion to vacate his sentence. The district court
denied that motion, and we affirmed.
See Adley v. United States,
374 F. App’x 891, 892–93 (11th Cir. 2010) (per curiam).
In 2015, the Supreme Court ruled that the Armed Career
Criminal Act’s (ACCA) residual clause, 18 U.S.C. § 924(e)(2)(B)(ii),
was unconstitutionally vague.
See Johnson v. United States, 576
U.S. 591 (2015). The Court subsequently ruled that
Johnson applies
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4 Opinion of the Court 20-14527
retroactively to cases on collateral review.
See Welch v. United
States, 578 U.S. 120 (2016). Following
Johnson and
Welch, we
granted Adley leave to file a successive motion to collaterally attack
his Count 6 conviction pursuant to § 2255, based on the possibility
that § 924(c)’s residual clause might also be unconstitutional under
the new rule articulated in
Johnson. We later granted motions to
stay the § 2255 motion, most recently after the Supreme Court
granted certiorari in
United States v. Davis, 139 S. Ct. 2319 (2019).
In
Davis, the Supreme Court extended its reasoning from
Johnson and struck down § 924(c)’s residual clause as unconstitu-
tionally vague, thus abrogating our decision in
Ovalles v. United
States, 905 F.3d 1231 (11th Cir. 2018) (en banc). Following
Davis,
we granted a subsequent application by Adley to challenge his con-
victions under both Counts 3 and 6 as void for vagueness. Adley’s
theory was that his convictions on Counts 3 and 6 may have rested
on § 924(c)’s residual clause, which
Davis struck down as unconsti-
tutional.
The government made two arguments to the district court
in opposition. First, Adley had procedurally defaulted his claim by
failing to challenge § 924(c)’s residual clause on direct appeal. Sec-
ond, Adley’s claim failed on the merits because he could not show
that the jury based the Count 3 and Count 6 convictions solely on
an invalid predicate; that is, even if Count 2 was no longer a valid
predicate after § 924(c)’s residual clause was found to be unconsti-
tutional, there were other valid predicates upon which the jury
likely relied.
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20-14527 Opinion of the Court 5
The district court denied Adley relief. As to procedural de-
fault, the court found that Adley’s claim was defaulted, but that
Adley had overcome the default by showing cause and prejudice.
Next, the district court found that Adley’s case presented
Strom-
berg error, because the jury was instructed that it could convict
Adley on Counts 3 and 6 based on several predicates—one of which
is now invalid.
See Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per
curiam). The court found, however, that the
Stromberg error was
harmless because there was “less than a reasonable probability the
jury relied solely on [an] invalid predicate in convicting on Count
3 or Count 6.” The district court then granted a certificate of ap-
pealability as to whether it applied the correct harmless-error
standard, and whether it correctly determined that the error in this
case was harmless.
Adley argues on appeal that the
Stromberg error was not
harmless in relation to his convictions on Counts 3 and 6. Count 3
was under 18 U.S.C. § 924(o), while Count 6 was under 18 U.S.C. §
924(c). Section 924(o) provides in relevant part that “[a] person
who conspires to commit an offense under subsection (c) shall be
imprisoned for not more than 20 years, fined under this title, or
both.” Section 924(c), in turn, provides:
Except to the extent that a greater minimum sentence
is otherwise provided by this subsection or by any
other provision of law, any person who, during and
in relation to any crime of violence
or drug trafficking
crime . . . for which the person may be prosecuted in
a court of the United States, uses or carries a firearm,
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6 Opinion of the Court 20-14527
or who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided
for such crime of violence or drug trafficking
crime . . . be sentenced to a term of imprisonment of
not less than 5 years . . . .
Id. § 924(c)(1)(A)(i) (emphasis added).
Section 924 defines a “drug trafficking crime” as “any felony
punishable under the Controlled Substances Act [21 U.S.C. § 801].”
Id. § 924(c)(2). Under § 924(c)(3), a crime of violence is 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,” or (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.”
Id. § 924(c)(3)(A),
(B). Courts have referred to § 924(c)(3)(A) as the “elements clause”
and to § 924(c)(3)(B) as the “residual clause.”
Davis, 139 S. Ct. at
2324.
In
Davis, the Supreme Court held that the residual clause
was unconstitutionally vague.
Id. at 2336. Subsequently, we held
that Hobbs Act conspiracy did not qualify as a crime of violence
under the elements clause.
Brown v. United States, 942 F.3d 1069,
1075–76 (11th Cir. 2019) (per curiam). So, to summarize, if the
predicate for Adley’s Count 3 and Count 6 convictions was the con-
spiracy to commit Hobbs Act robbery charged in Count 2, then
those convictions relied on an invalid predicate that is not a crime
of violence under the elements clause or the residual clause.
See
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20-14527 Opinion of the Court 7
Brown, 942 F.3d at 1075–76;
Davis, 139 S. Ct. at 2336. The ques-
tion, then, is whether the jury relied solely on Count 2 as a predi-
cate when it convicted Adley on Counts 3 and 6.
The government argues that we should not reach that ques-
tion because Adley procedurally defaulted the claim when he failed
to raise it on direct appeal. Of course, at the time of Adley’s direct
appeal, the Supreme Court had not yet found § 924(c)’s residual
clause to be void for vagueness. But in a recent decision, we held
that a petitioner could not show cause for failing to raise a vague-
ness challenge to § 924(c) on direct appeal because, even in 2009,
defendants had “the ‘building blocks of’ a due process vagueness
challenge.”
Granda v. United States, 990 F.3d 1272, 1287 (11th Cir.
2021;
see also Parker v. United States, 993 F.3d 1257, 1265 (11th Cir.
2021).
Adley counters that his
Davis challenge raises a
jurisdictional
error1 that cannot be defaulted.
See United States v. Bane, 948 F.3d
1290, 1294 (11th Cir. 2020) (A defendant cannot procedurally de-
fault a claim if the alleged error is jurisdictional). The parties did
not brief—and thus the court did not address—this issue in
Granda
1 “[W]hen an indictment affirmatively alleges conduct that is not a federal of-
fense, it does ‘not invoke the district court’s jurisdiction to enter judgment or
accept a guilty plea.’”
Bane, 948 F.3d at 1295 (quoting
United States v. Brown,
752 F.3d 1344, 1352–53 (11th Cir. 2014)). Accordingly, we have held that when
a defendant claims that his § 924(c) conviction was not based on a crime of
violence, he makes a jurisdictional claim that cannot be waived.
United States
v. St. Hubert, 909 F.3d 335, 343–44 (11th Cir. 2018),
overruled in part on other
grounds by United States v. Davis, 139 S. Ct. 2319 (2019).
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8 Opinion of the Court 20-14527
or
Parker. And if we overlooked a jurisdictional defect in those
cases, that oversight would not be precedential.
See Lewis v. Ca-
sey, 518 U.S. 343, 353 n.2 (1996) (“[W]e have repeatedly held that
the existence of unaddressed jurisdictional defects has no preceden-
tial effect.”).
Ordinarily, we resolve a procedural-bar issue as a threshold
matter, but we may deviate from that general practice in appropri-
ate circumstances.
See McCoy v. United States, 266 F.3d 1245, 1256
(11th Cir. 2001);
Lambrix v. Singletary, 520 U.S. 518, 525 (“We do
not mean to suggest that the procedural-bar issue must invariably
be resolved first; only that it ordinarily should be[.]”). Because the
question of harmless error lends itself to a more straightforward
resolution of this appeal, we turn to that issue first in the interest
of judicial economy.
To begin with, there is no doubt that Adley’s claim presents
Stromberg error. The Supreme Court has explained that
Strom-
berg error exists when the “jury was instructed on alternative the-
ories of guilt and may have relied on an invalid one.”
Hedgpeth,
555 U.S. at 58. That is precisely what occurred in this case when
the district court instructed the jury that it could convict Adley on
Counts 3 and 6 based on several predicates, one of which we now
know is invalid.
See Davis, 139 S. Ct. at 2336.
However, a
Stromberg error is subject to harmless-error
analysis.
Granda, 990 F.3d at 1292
. We will grant collateral relief
only if we have “grave doubt” about whether a trial error had “sub-
stantial and injurious effect or influence” in determining the
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20-14527 Opinion of the Court 9
verdict.
Id. The harmless-error standard requires that the peti-
tioner show “more than a reasonable possibility that the error was
harmful.”
Id. Stated differently, the error must have “resulted in
actual prejudice” to the petitioner.
Id. We will consider whether
alternative, valid predicates grounded a defendant’s conviction.
Id.
at 1296.
Here, Adley has not shown more than a reasonable possibil-
ity that the
Stromberg error was harmful.
See id. at 1292
. The
prosecution never argued that the jury should convict Adley rely-
ing on Count 2 as the sole predicate, and it is unlikely that the jury
did so when there were other valid predicates to rely on. Putting
aside Count 2, the jury convicted Adley of three other predicate
offenses (Counts 1, 4, and 5), and found on the supplemental ver-
dict form that Adley possessed, or conspired to possess, a firearm
in relation to each of those three counts. The drug trafficking con-
spiracy charged in Count 1 was a valid predicate for Count 3, the §
924(o) charge. And Counts 4 and 5 were valid predicates for Count
6, the § 924(c) charge. In fact, the Superseding Indictment listed
only Counts 4 and 5 as predicates for Counts 6, and the prosecution
argued the same to the jury at trial.
Adley argues that the jury instructions did not direct the jury
to find multiple predicates; the jury was instructed to rely on a sin-
gle predicate for Counts 3 and 6, and that predicate could have been
Count 2. But although the jury was required to find only a single
predicate, nothing prevented the jury from finding more than one.
We agree with the district court that it is quite unlikely that the
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10 Opinion of the Court 20-14527
jury would have relied only on Count 2 as a predicate, despite the
availability of Counts 1, 4, and 5 as valid predicates and the fact that
the prosecution did not argue that Count 2 was a predicate for
Count 3 or 6. As a result, we are not left with “grave doubt” as to
whether the
Stromberg error had “substantial and injurious effect
or influence” in determining the verdict.
See Granda, 990 F.3d at
1292
. Therefore, we affirm the district court’s holding that any er-
ror was harmless.
AFFIRMED.
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