In re: ORLANDO CORDIA HALL,
No. 19-10345
United States Court of Appeals for the Fifth Circuit
October 30, 2020
Movant.
Mоtion for an order authorizing the United States District Court for the Northern District of Texas to consider a successive
Before DENNIS, HO, and OLDHAM, Circuit Judges.
Over two decades ago, Orlando Cordia Hall and his conspirators kidnapped and then repeatedly raped a 16-year-old high school student. They then took turns beating her with a shovel, before covering her with gasoline and burying her alive. A jury convicted Hall of four federal crimes and sentenced him to death. His convictions have been repeatedly and unanimously upheld on appeal, both on direct review and in two federal habeas petitions. He now seeks authorization to file a third federal habeas petition.
Among his four convictions, Hall was sentenced to death for the crime of kidnapping resulting in death. He does not challenge that conviction here, however. Instead, he challenges his conviction under
The Supreme Court recently held the residual clause to be unconstitutiоnally vague in Davis v. United States, 139 S. Ct. 2319 (2019). So Hall hopes to challenge his
There is no need to reach the residual clause issue, because as we shall explain, kidnapping resulting in death plainly satisfies the elements clause of
We do not ultimately reach the residual clause issue, however, because we conclude that kidnapping resulting in death satisfies the elements clause of
I.
Hall‘s conspirators violently kidnapped a 16-year-old high school student, Lisa Rene, inside her apartment. United States v. Hall, 152 F.3d 381, 389 (5th Cir. 1998). They tackled and dragged Rene to a car, where Hall was waiting and where he raped her. Hall and his conspirators then took Rene from Arlington, Texas to Pine Bluff, Arkansas. Id.
The next day, Hall and his conspirators rented a motel room, where they tied their victim to a chair and raped her repeatedly. Id. Hall and at least one conspirator were armed with handguns. Id. One of the conspirators decided that Rene “kn[e]w too much,” and so they went to Byrd Lake Park to dig a grave. Id. One day later, Hall and his conspirators blindfolded Rene and took her to the grave site. Id. at 390. There, they beat her over the head with a shovel. Id. She screamed and tried to escape, but they caught her and took turns
Within a week, Hall and his conspirators were arrested and charged with Lisa Rene‘s kidnapping resulting in death. Id. Hall was convicted of four crimes: kidnapping resulting in death (death sentence), conspiracy to commit kidnapping (life imprisonment), traveling interstate to distribute drugs (sixty months served concurrently with the life sentence), and carrying a firearm during a crime of violence (sixty months to be served consecutively to the other sentences). Id.
Hall‘s trial and convictions occurred in 1995, and he brought his first
Hall now seeks authorization to file a third habeas petition under
II.
To satisfy the elements clausе, a crime of violence must have as a required element “the use ... of physical force.”
Courts use the categorical approach to determine whether an offense fits within
When a statute lists multiple elements of conviction in the alternative, it is “divisible” into differеnt offenses. Id. at 2249. To determine which offense formed the basis for the conviction, courts look to the trial record, “including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and verdict forms“—a process known as the “modified categorical approach.” Johnson, 559 U.S. at 144 (emphases added). See also Shepard v. United States, 544 U.S. 13 (2005).
The federal kidnapping resulting in death provision involves different elements of conviction from the general federal crime of kidnapping—namely, the additional requirement that “the death of [a] person results“—and triggers an enhanced penalty.
Kidnapping resulting in death has as an element “the use ... of physical force” as required under
The “use of force” is not limited to the intentional or knowing use of force—it also includes conduct that recklessly disregards the risk of injury to another person. See, e.g., Voisine v. United States, 136 S. Ct. 2272, 2279 (2016) (“[T]he word ‘use’ does not demand that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so. . . . [T]hat word is indifferent as to whether the actor has the mental state of intention, knowledge, or rеcklessness with respect to the harmful consequences of his volitional conduct.“); Reyes-Contreras, 910 F.3d at 183 (“‘[T]he use of force’ does not require intent because it can include knowing or reckless conduct.“).
This principle should decide this case, for it seems obvious that the act of kidnapping, and especially kidnapping resulting in death, necessarily contemplates the reckless disregard of the risk of serious injury to the victim. Judge Colloton put the point well, when he stated: “Reckless disregard for human life is inherent in the commission of felonies such as robbery and kidnapping that carry a grave risk of death.” Ross, 969 F.3d at 839 (emphasis added). After all, “intentional kidnapping necessarily involves ‘a deliberate decision to endanger another’ that amounts to recklessness.” Id. (quoting Voisine, 136 S. Ct. at 2279). So “[w]here a perpetrator intentionally kidnaps a victim, and the kidnapping results in the victim‘s deаth, the perpetrator‘s mental state is sufficient to show that he necessarily ‘used’ force against the victim.” Id.
We acknowledge that the Eighth Circuit decision was not unanimous. As the dissent there acknowledged, “[s]hooting someone multiple times in the course of a kidnapping sure sounds like a ‘crime of violence.‘” Id. at 845 (Stras, J., dissenting). But “[s]uppose that an individual gets in a car with a person impersonating an Uber driver and dies, either in a tragic car accident caused by the driver‘s recklessness or by jumping out after discovering the driver‘s true identity. Both scenarios qualify as kidnapping by ‘inveigle[ment]’ or ‘decoy[]’ and each ‘results’ in death. And critically, neither involves the use of force.” Id. (citations omitted).
But we disagree that these hypothetical scenarios do not involve the use of force. We agree instead with Judge Colloton,
So we have no difficulty concluding that kidnapping resulting in death entails the kind of reckless conduct contemplated by the “use of force” required under
This conclusion is further reinforced by the fact that Hall was charged with the capital crime of kidnapping resulting in death. As in any federal capital case, Hall‘s charging documents expressly incorporated the fedеral capital statute. See
Any offense that incorporates the elements of
Hall‘s challenge to his
III.
We uphold Hall‘s
We acknowledge that five of our sister circuits have held Davis retroactively applicable to successive habeas petitions, notwithstanding the express statutory requirement that the new rule of constitutional law has been “made retroactive to cases on collateral review by the Supreme Court.”
But none of those courts received adversarial briefing on the issue. Cf. Lankford v. Ohio, 500 U.S. 110, 127 (1991) (recognizing “the critical role that the adversary process plays in our system of justice“). What‘s more, in In re Hammoud, 931 F.3d at 1039, the first case to assume Davis‘s retroactivity, the Government never even mentioned Davis. And in subsequent cases, the Government has simply followed Hammoud.
Adversarial briefing might very well have altered the outcome in those other cirсuits. In fact, at least seven respected jurists have concluded that decisions like Davis are not automatically retroactive—and thus must be made retroactive by the Supreme Court in a future case to satisfy provisions such as
A reasonable jurist could easily read Welch and conclude that Davis‘s retroactivity logically follows. But that is different from saying that Welch necessarily dictates that outcome. A reasonable jurist might well predict that the Supreme Court would make Davis retroactive if asked. But a successive habeas petition may proceed only if Davis has been “made retroactive ... by the Supreme Court,”
But this issue will remain for another day. Hall‘s
IV.
The dissent accuses us of committing a “host of grievous errors” in this “federal death penalty case.”
But this proceeding has nothing to do with Hall‘s death sentence. Hall was convicted and sentenced to death for the crime of federal kidnapping resulting in death under
Nor do we see any error in that 60-month sentence. To begin with, as we explain, that 60-month sentence is fully supported under the elements clause of
The dissent also criticizes our reliance on
And as for the dissent‘s criticism of our discussion of the residual clause, it ignores the fact that we are simply agreeing with seven respected members of the judiciary that decisions like Davis are not automatically retroactive and therefore must be made retroactive by the Supreme Court in a future case to satisfy
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It has been over two decades since Hall was sentenced to death for the brutal killing of an innocent 16-year-old. His conviction has been repeatedly affirmed on appeal, under both direct review and following multiple habeas petitions. It is time—indeed, long past time—for these proceedings to end. Hall‘s request for authorization to proceed on his successive habeas petition is denied.
JAMES L. DENNIS, Circuit Judge, dissenting:
In this federal death penalty case, the majority commits a host of grievous errors to arrive at its conclusion that movant Orlando Hall fails to satisfy the standards for authorization to file a successive habeas petition. First, the majority decides that the
Because I would follow binding circuit precedent in this capital case and join four other federal courts of appeal in holding that Davis applies retroactively to successive habeas petitions, and because Hall has made “a sufficient showing of possible merit” that he can benefit from that decision, Reyes-Requena v. United States, 243 F.3d 893, 899 (5th Cir. 2001) (internal quotation marks omitted), I would grant his motion for authorization. The majority errs in holding otherwise, so I must respectfully dissent.
I.
To receive authorization to file a successive habeas petition, Hall must make a “prima facie” showing that his claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
In Teague v. Lane, 489 U.S. 288, 311 (1989), the Supreme Court announced two types of rules that should be applied retroactively to cases on collateral review: substantive rules of constitutional law (the first Teague exception) and watershed rules of criminal procedure (the second Teague exception). This case implicates only the first Teague exception.
“Substantive rules . . . set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State‘s power to impose.” Montgomery v. Louisiana, 136 S. Ct. 718, 729 (2016); see also Teague, 489 U.S. at 311 (explaining that substantive rules are those that “place[] certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” (internal quotation marks omitted)). And “[c]ourts must give retroactive effect to new substantive rules
In United States v. Reece, 938 F.3d 630, 635 (5th Cir. 2019), we held that the Supreme Court‘s decision in Davis was substantive and thus applied retroactively to a first habeas petition. “[T]he rule announced in Davis meets the standard for a new substantive rule,” we reasoned, because its invalidation of
Our conclusion was reinforced by the Supreme Court‘s twin decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016). In Johnson, the Court declared that the residual clause of the Armed Career Criminal Act (ACCA)—which is worded similarly to the residual clause in
Davis, we have recognized, “operates in much the same way” as Johnson. Reece, 938 F.3d at 635. “[T]he residual clause [of
As noted, Reece was decided within the initial habeas petition context, and therefore considered under
There are two ways the Court can make “a new rule . . . retroactive within the meaning of
In her concurrence in Tyler v. Cain, Justice O‘Connor employed a syllogism to demonstrate how, despite the absence of an express holding by the
Court that a rule applies retroactively, “multiple holdings” taken together can “logically dictate the retroactivity of [a] new rule“:
if we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review. In such circumstances, we can be said to have “made” the given rule retroactive to cases on collateral review.
Id. at 668-669 (O‘Connor, J., concurring). Applying this syllogism, Justice O‘Connor noted that the Court in Teague had determined that “a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Id. at 669 (quoting Teague, 489 U.S. at 307). Teague, then, was “Case One” in Justice O‘Connor‘s syllogism. “When the Court holds as a new rule in a subsequent case“—a case following Teague—“that a particular species of primary, private individual conduct is beyond the power of the criminal lawmaking authority to proscribe, it necessarily follows that this Court has ‘made’ that new rule retroactive to cases on cоllateral review.” Id. (emphasis added). In other words, after Teague, whenever the Supreme Court announces a substantive rule—that is, one that “places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe,” Teague, 489 U.S. at 307—that rule necessarily has been made retroactive by the Court.
In In re Sparks, 657 F.3d 258, 262 (5th Cir. 2011), we applied Justice O‘Connor‘s logic in holding that a substantive rule set forth by the Supreme Court necessarily had been made retroactive by the Court. There, a juvenile non-homicide offender who had been sentenced to life imprisonment without the possibility of parole moved for authorization to file a successive
As is evident, necessary to the decision in Sparks was application of Justice O‘Connor‘s syllogism. See id. Because the use of that syllogism formed part of Sparks‘s holding, we are bound to follow it as this case is indistinguishable from Sparks for retroactivity purposes. Applying Justice O‘Connor‘s syllogism here, it is clear that Davis applies retroactively. Again, the first Teague exception (Case One) establishes that substantive rules necessarily apply retroactively. And Davis (Case Two) announces a substantive rule for the reasons set forth above. Therefore, Davis must apply retroactively to successive habeas petitions. See Teague, 489 U.S. at 307.
Conspicuously failing even to cite Sparks—despite the fact that both parties and appointed amicus discuss it repeatedly—the majority implies that the requirements for authorization under
This determination, moreover, accords with that reached by every federal court of appeals to have decided Davis‘s retroactive application to successive habeas petitions. See In re Mullins, 942 F.3d 975 (10th Cir. 2019); In re Matthews, 934 F.3d 296 (3d Cir. 2019); In re Hammoud, 931 F.3d at 1038-39; In re Franklin, 950 F.3d 909 (6th Cir. 2020) (mem.). The Sixth, Tenth, and Eleventh Circuits all relied on Tyler‘s instruction that the combination of multiple Supreme Court decisions can dictate retroactivity. See In re Franklin, 950 F.3d at 910-911; In re Mullins, 942 F.3d at 977-79; In re Hammoud, 931 F.3d at 1038-39. As the Sixth Circuit explained:
The Supreme Court‘s decision in Welch . . . establishes the retroactivity of Davis. Welch explained that decisions announce a substantive rule and are thus retroactive when they alter thе range of conduct . . . that the law punishes. That occurred in Johnson v. United States because it changed the substantive reach of the Armed Career Criminal Act. So too in Davis, where the Court narrowed
§ 924(c)(3) by concluding that its second clause was unconstitutional.”
In re Franklin, 950 F.3d at 910–11 (cleaned up); see also In re Mullins, 942 F.3d at 979 (“Because Davis has the same limiting effect on the range of conduct or class of people punishable under
In light of the foregoing, it is unsurprising that the Government agrees with the analysis that Davis applies retroactively; any other position would be contrary to logic and binding circuit precedent. Of course, the Government‘s concession does not bind courts, but it is notable that other circuits have found such a concession sufficient reason alone to give a rule retroactive applicаtion. See In re Matthews, 934 F.3d at 301 (accepting the Government‘s concession of Davis‘s retroactivity as sufficient to conclude for authorization purposes that the Supreme Court had made the case retroactive); Woods v. United States, 805 F.3d 1152, 1154 (8th Cir. 2015) (per curiam) (“Based on the government‘s concession [of the retroactivity of Johnson], we conclude that Woods has made a prima facie showing that his motion contains ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.‘” (quoting
Based on the reasons above, I conclude that Davis has been “made retroactive . . . by the Supreme Court.”
II.
Hall can receive authorization to file a successive habeas application if he “‘makes a prima facie showing that [his] application satisfies the requirements of’ [28 U.S.C.] § 2244(b).” In re Salazar, 443 F.3d 430, 431 (5th Cir. 2006) (per curiam) (quoting
Under the modified categorical approach, I agree with the majority that Hall was convicted of kidnapping resulting in death, an offense distinct from generic kidnapping. See
Second, the majority incorrectly contends that kidnapping resulting in death,
In holding otherwise, the majority leans heavily on the decision of a divided panel of the Eighth Circuit in United States v. Ross, 969 F.3d 829, 838-39 (8th Cir. 2020). There, the Eighth Circuit held that kidnapping resulting in death under
The dissent in Ross aptly illustrated this point: “Suppose that an individual gets in a car with a person impersonating an Uber driver and dies . . . in a tragic car accident caused by . . . by jumping out after discоvering the driver‘s true identity.” See 969 F.3d at 845 (Stras, J., concurring in the judgment and dissenting in part) (internal citations omitted). This scenario “qualif[ies] as kidnapping by ‘inveiglement‘” and “‘results’ in death. And critically,” it does not “involve[] the use of force.” Id.
Even though it is entirely possible that a kidnapping resulting in death could be committed without the use of physical force—and thus is not restricted to the elements clause—this is not enough to constitute a prima facie showing, according to the majority. Instead, it holds—rather extraordinarily—that Hall must show a “realistic probability . . . that the [Government] would apply [the] statute to [such] conduct.” Maj. Op. at 8. (quoting United States v. Castillo-Rivera, 853 F.3d 218, 222 (5th Cir. 2017) (en banc)). The “realistic probability” test is familiar, but not in the context in which the majority deploys it. The realistic probability test is a judge-made rule designed by a badly fractured court of appeals to legalistically but illogically fit more state offenses into federal generic offense definitions to enhance punishments. See Castillo-Rivera, 853 F.3d at 222. It ill-fits the end for which it was conceived and has absolutely no place in judging a prima facie showing or a showing of possible merit to warrant a fuller exploration by the district court under
The error in the majority‘s importation of the realistic probability standard into the habeas contеxt is underscored by our limited “gatekeeping” role in ruling on motions for authorization. See United States v. Wiese, 896 F.3d 720, 723 (5th Cir. 2018). If we find that the prima facie standard for authorization is met, then the petitioner passes through only the first of two jurisdictional gates. The petitioner must still clear a second gate by “actually prov[ing] at the district court level that the relief he seeks relies” on a new rule. Id. (emphasis added). If he cannot, the district court lacks jurisdiction and “must dismiss the motion without reaching the merits.” Id. We recently held that to prove reliance on a new rule that invalidates a residual clause—that is, that a petitioner‘s conviction rests on a now-invalid provision—the prisoner must show by a preponderance of the evidence in the district court that he was indeed convicted under the residual clause. See United States v. Clay, 921 F.3d 550, 558–59 (5th Cir. 2019). Nowhere did we mention that a petitioner must hаve already shown a realistic probability that his conviction fell under the residual clause or imply that any showing beyond the statutorily-required prima facie standard was needed for authorization.
Last, the majority baldly asserts that because Hall was charged with the capital
* * *
For these reasons, I would hold that Hall has made a “sufficient showing of possible merit to warrant a fuller exploration by the district court” and would therefore grant him authorization to file a successive habeas petition. Reyes-Requena, 243 F.3d at 899. Because the majority errs in denying authorization, I respectfully dissent.