In Granda v. United States, No. 17-15194 (Mar. 11, 2021) (William Pryor, Jordan, Marcus), the Court affirmed the district court's denial of Granda's second or successive § 2255 motion after United States v. Davis, 139 S. Ct. 2319 (2019), challenging his multiple predicate § 924(o) conviction.
Granda's case involved a reverse sting operation, wherein Granda was charged with: (1) conspiracy to possess with intent to distribute cocaine; (2) attempting to possess with intent to distribute cocaine; (3) conspiracy to commit Hobbs Act robbery; (4) attempted Hobbs Act robbery; (5) attempted carjacking; (6) conspiracy to use and carry a firearm during and in relation to a crime of violence and drug-trafficking crime; and (7) possession of a firearm in furtherance of a crime of violence or drug trafficking crime.
The Court affirmed the denial of Granda's § 2255 motion for two reasons: (1) he could not overcome procedural default, and (2) his claim failed on the merits.
The Court sua sponte addressed its subject matter jurisdiction over Granda's § 2255 motion. Granda sought and received leave to file a second or successive Johnson challenge--the Supreme Court had not yet decided Davis, so the Court did not (and could not then) certify that Granda's second motion contained the new rule of constitutional law Davis announced. Nevertheless, the Court found that it did indeed have jurisdiction over Granda's motion because to resolve the Johnson claim the Court did authorize, the Court was obligated to apply the controlling Supreme Court law of Davis.
First, the Court held that Granda's claim was procedurally defaulted, and that he could not establish cause, actual prejudice, or actual innocence. As to cause, the Court found that Granda's claim was not sufficiently novel to establish cause. As for actual prejudice, the Court stressed that actual prejudice means more than just the possibility of prejudice; it requires that the error worked to the movant's actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions. That is, movant had to show a substantial likelihood that the jury relied only on the constitutionally invalid predicate, because reliance on any of the other predicates would have provided a wholly independent, sufficient and legally valid basis to convict. Here, after reviewing the evidence, the Court found that Granda could not make that showing because of the inextricably intertwined nature of his convictions. That is, the crimes were so inextricably intertwined that no rational juror could have found that Granda carried a firearm in relation to one predicate but not the others. Finally, the Court found that Granda could not establish that he was actually innocent. The Court clarified that actual innocence means factual innocence, not mere legal innocence. To demonstrate actual innocence of the § 924(o) offense, Granda would have had to show that no reasonable juror would have concluded that he conspired to possess a firearm in furtherance of any of the valid predicate offenses, which the Court held he could not--nor did he attempt to--do. 'The same shortcoming that prevents Granda from showing actual prejudice . . . makes it impossible for Granda to show that his § 924(o) conviction was in fact based on the conspiracy-to-rob predicate."
Finally, the Court addressed the merits of Granda's claim. The Court held that the inextricability of the alternative predicate crimes compelled the conclusion that the error Granda complained of--instructing the jury on a constitutionally invalid predicate as one of several potential alternative predicates--was harmless. The Court clarified that on collateral review, the harmless-error standard mandates that relief is proper only if the court has grave doubt about whether a trial error of federal law has substantial and injurious effect or influence in determining the jury's verdict. That is, in line with Brecht v. Abrahamson, 507 U.S. 619 (1993), a court may order relief only if the error resulted in actual prejudice. On the record in Granda's case, the Court did not have "grave doubt" about whether Granda's § 924(o) conviction rested on an invalid ground. In so holding, the Court declined to adopt Granda's arguments raising Stromberg v. California, 283 U.S. 359 (1931), or the categorical approach.
Judge Jordan concurred in part and concurred in the judgment. He noted that because Granda could not prevail on the merits, he would not have addressed the issue of procedural default.