In Re: Orlando Hall, 979 F.3d 339

Background

In 1994 Orlando Hall and co-conspirators kidnapped, repeatedly raped, beat, doused with gasoline, and buried alive 16‑year‑old Lisa Rene; Hall was convicted of federal kidnapping resulting in death (death sentence) and separately of 18 U.S.C. § 924(c) (60 months consecutive).
Hall previously filed multiple habeas petitions; he sought authorization to file a third successive § 2255 petition challenging only the § 924(c) conviction after the Supreme Court’s decision in Davis v. United States.
Davis (2019) invalidated § 924(c)(3)’s residual clause as unconstitutionally vague; Hall contends his § 924(c) conviction rests on that now-invalid clause and that Davis should be applied retroactively on collateral review under 28 U.S.C. § 2255(h)(2).
The panel majority held there is no need to reach the residual‑clause/retroactivity question because kidnapping resulting in death qualifies as a “crime of violence” under § 924(c)(3)(A)’s elements clause (use of physical force), so Hall’s § 924(c) conviction stands.
The majority also expressed skepticism that Davis has been “made retroactive … by the Supreme Court” for successive petitions under § 2255(h)(2), noting other circuits assumed retroactivity without adversarial briefing; the dissent disagreed and would find Davis retroactive via Tyler/Sparks logic.
The court denied Hall authorization to file a successive § 2255 petition challenging his § 924(c) conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether kidnapping resulting in death (§ 1201(a)) is a "crime of violence" under § 924(c)(3)(A) (elements clause)	Hall: § 1201(a) can be committed without the use/ threat of physical force, so it may not meet the elements clause	Govt/Majority: kidnapping resulting in death by its nature involves at least reckless use/ risk of force and thus satisfies the elements clause	Held: Yes — the offense falls within § 924(c)(3)(A); § 924(c) conviction stands
Whether Davis v. United States has been "made retroactive" by the Supreme Court for successive § 2255 petitions under § 2255(h)(2)	Hall: Davis is retroactive (Welch/Johnson logic and multiple circuit rulings)	Govt/Majority: Not clearly so — the Supreme Court must have made it retroactive, or the Court’s holdings must necessarily dictate retroactivity; courts that assumed retroactivity lacked adversarial briefing	Held: Majority declines to find Davis made retroactive for § 2255(h)(2); expresses doubt though does not fully resolve the issue
Whether Hall should be authorized to file a successive § 2255 challenging his § 924(c) conviction	Hall: Davis entitles him to relief; thus he made a prima facie showing to proceed	Govt: Opposes authorization; argues elements clause independently supports conviction	Held: Authorization denied (petition not authorized)
Whether incorporation of § 3591(a)(2) (capital‑case elements) establishes the requisite force element for § 924(c)	Dissent/Hall: § 3591(a)(2)(C) may not require physical force and thus does not automatically satisfy the elements clause	Majority/Govt: Capital statute’s elements include intentional or reckless acts contemplated by § 3591(a)(2) and thus demonstrate the use of force	Held: Majority treats the capital elements as satisfying the elements clause; dissent disagrees

Key Cases Cited

Davis v. United States, 139 S. Ct. 2319 (2019) (invalidated § 924(c)(3)’s residual clause for vagueness)
Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson’s substantive rule was retroactive on collateral review)
Johnson v. United States, 559 U.S. 133 (2010) (defined “physical force” as violent force capable of causing pain or injury)
Voisine v. United States, 136 S. Ct. 2272 (2016) (holding “use of force” can include knowing or reckless conduct)
Tyler v. Cain, 533 U.S. 656 (2001) (explained how multiple holdings can together “make” a rule retroactive)
In re Sparks, 657 F.3d 258 (5th Cir. 2011) (applied Tyler logic in § 2255(h)(2) context)
United States v. Reece, 938 F.3d 630 (5th Cir. 2019) (held Davis substantive and retroactive in initial habeas context)
United States v. Ross, 969 F.3d 829 (8th Cir. 2020) (held kidnapping resulting in death satisfies § 924(c)(3)(A))
Burrage v. United States, 571 U.S. 204 (2014) (held death-result enhancements constitute elements)
United States v. Castillo‑Rivera, 853 F.3d 218 (5th Cir. 2017) (discussed “realistic probability” test for categorical analysis)
Reyes‑Requena v. United States, 243 F.3d 893 (5th Cir. 2001) (explained the prima facie standard for authorization to file successive petitions)