In Re: Creadell Hubbard v., 2016 U.S. App. LEXIS 10348

Background

Creadell Hubbard was convicted (1989) of armed bank robbery, carrying a firearm during a crime of violence (§ 924(c)), possession/possession conspiracy of stolen money; sentenced as a career offender under U.S.S.G. § 4B1.1 based on prior convictions including Kentucky third-degree burglary.
Hubbard’s convictions and career-offender designation were affirmed on direct appeal; his initial § 2255 motion (1997) was denied.
In 2015 Hubbard sought authorization from the Fourth Circuit to file a successive § 2255 petition invoking Johnson v. United States (invalidating the ACCA residual clause) as a new, retroactive rule.
The Fourth Circuit previously held armed bank robbery qualifies as a “crime of violence” under the § 924(c) force clause, so Hubbard’s challenge to the § 924(c) predicate was foreclosed; his remaining claim targeted whether Kentucky third-degree burglary qualifies as a “crime of violence” under the then-applicable Sentencing Guidelines’ incorporation of 18 U.S.C. § 16(b).
The government argued Johnson applies only to the ACCA residual clause (not § 16(b)), and that any application to the Guidelines would be procedural (non-retroactive).
The Fourth Circuit granted authorization to file the successive § 2255, holding Hubbard made a prima facie showing that Johnson could render the § 16(b)-based Guidelines residual clause unconstitutional and that Johnson is substantive and retroactive in this context.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Johnson’s vagueness rule can be applied to 18 U.S.C. § 16(b) as incorporated into the Sentencing Guidelines	Johnson’s new rule plausibly renders § 16(b) unconstitutionally vague, so Hubbard should be authorized to file a successive § 2255	Johnson invalidated only the ACCA residual clause; § 16(b) is different/narrower and thus not governed by Johnson	Authorized: court finds Hubbard made a prima facie showing that Johnson may apply to § 16(b); district court should decide merits
Whether Johnson is retroactive when applied to the Sentencing Guidelines (affecting career-offender status)	Johnson (as made retroactive by Welch) can be substantive when it removes a sentencing predicate and thus applies retroactively under Teague/Welch	Application to the Guidelines is procedural (affects guideline calculation only) and thus non-retroactive	Held retroactive: court concluded Johnson would be substantive as to § 16(b) in the Guidelines context and thus applies retroactively; authorization granted
Whether armed bank robbery predicate for § 924(c) can be undone by Johnson	(Hubbard initially argued this) Johnson invalidates the residual clause, so the predicate might fail	Fourth Circuit precedent holds armed bank robbery qualifies under § 924(c) force clause; Johnson inapplicable	Denied as viable here: McNeal and precedent establish armed bank robbery is a crime of violence under the force clause, so that claim fails
Standard for pre-filing authorization of a successive § 2255	Movant must make a prima facie showing that a new, retroactive rule could affect his case	Government may litigate merits later; here arguments on merits are premature at authorization stage	Court applies the low prima facie standard and grants authorization for Hubbard to proceed to district court

Key Cases Cited

Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause held unconstitutionally vague)
Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson announced a substantive rule with retroactive effect on collateral review)
Schriro v. Summerlin, 542 U.S. 348 (2004) (distinguishing substantive versus procedural new rules)
Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity of new rules on collateral review)
Peugh v. United States, 133 S. Ct. 2072 (2013) (describing the substantive role of the Sentencing Guidelines)
Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (guidelines errors can be particularly serious)
United States v. Booker, 543 U.S. 220 (2005) (context on the Guidelines’ role at sentencing)
In re Vassell, 751 F.3d 267 (4th Cir. 2014) (successive § 2255 requires circuit authorization)
United States v. McNeal, 818 F.3d 141 (4th Cir. 2016) (armed bank robbery is a crime of violence under the § 924(c) force clause)