United States v. Donzell McKinney, 60 F.4th 188

Background

In Sept. 2011 McKinney participated in an armed robbery: he assaulted victims, pointed and discharged a firearm at the restaurant manager, and fled with money.
Grand jury indicted him for Hobbs Act robbery (substantive), Hobbs Act conspiracy, and a § 924(c) count predicated on the substantive robbery; McKinney refused to plead to the substantive robbery count.
The Government filed a bill of information charging Hobbs Act conspiracy and a § 924(c) count predicated solely on conspiracy; McKinney pleaded guilty to those two counts and received consecutive sentences.
After Davis and circuit precedent (Simms) held § 924(c)’s residual clause unconstitutional and that Hobbs Act conspiracy cannot qualify as a § 924(c) predicate, McKinney filed a § 2255 motion to vacate his § 924(c) conviction.
The district court dismissed the § 2255 motion as barred by McKinney’s plea appeal waiver and by procedural default; the Fourth Circuit granted COA and reversed, instructing vacatur of the § 924(c) conviction and remand for further proceedings.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of § 924(c) conviction (predicate offense)	McKinney: Davis and Simms render § 924(c)’s residual clause and Hobbs Act conspiracy as predicate invalid; his § 924(c) conviction is thus invalid.	Government: initially conceded invalidity of the conspiracy‑predicated § 924(c) but argued procedural bars prevent relief.	Held: § 924(c) conviction predicated on Hobbs Act conspiracy is invalid under Davis and Simms; conviction must be vacated.
Enforceability of plea appeal waiver	McKinney: waiver should not bar relief because enforcing it would produce a miscarriage of justice where the conviction is now for non‑criminal conduct.	Government: waiver bars collateral attack except for ineffective assistance or prosecutorial misconduct.	Held: waiver unenforceable here—McKinney made a cognizable claim of actual innocence and enforcing the waiver would be a miscarriage of justice.
Procedural default – cause to excuse failure to raise claim earlier	McKinney: claim was novel and not reasonably available at plea/sentencing because Supreme Court precedent then foreclosed vagueness challenges to residual clauses until Johnson/Davis.	Government: futility cannot constitute cause; counsel should have raised challenge earlier.	Held: Cause shown under Reed/Carrier framework—claim was novel because Supreme Court precedent foreclosed it when McKinney pled guilty.
Procedural default – prejudice to excuse default	McKinney: conviction now punishes conduct that is no longer criminal; that worked to his actual and substantial disadvantage.	Government (and dissent): any prejudice is negated because the Government could have relied on a dismissed substantive robbery predicate (or would have charged it) and McKinney likely would have received the same sentence.	Held: Prejudice shown — court refused to treat dismissed/uncharged counts as negating prejudice; error caused actual and substantial disadvantage warranting collateral relief.

Key Cases Cited

Johnson v. United States, 576 U.S. 591 (2015) (struck down ACCA residual clause as void for vagueness)
United States v. Davis, 139 S. Ct. 2319 (2019) (held § 924(c)’s residual clause unconstitutionally vague)
United States v. Simms, 914 F.3d 229 (4th Cir. 2019) (en banc) (Hobbs Act conspiracy cannot qualify as a § 924(c) crime of violence under the elements clause)
In re Thomas, 988 F.3d 783 (4th Cir. 2021) (held Davis retroactive on collateral review)
Reed v. Ross, 468 U.S. 1 (1984) (novelty of legal claim can establish cause to excuse procedural default)
Bousley v. United States, 523 U.S. 614 (1998) (procedural default excuse requires cause and actual prejudice or actual innocence)
Frady v. United States, 456 U.S. 152 (1982) (standard for showing prejudice to overcome procedural default)
United States v. Adams, 814 F.3d 178 (4th Cir. 2016) (appeal waiver not enforced where enforcement would produce miscarriage of justice)
Jones v. United States, 39 F.4th 523 (8th Cir. 2022) (rejected using dismissed counts to negate prejudice in similar § 924(c) context)