United States District Court, D. Kansas
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE
March 11 of 2019, this Court denied Mr. Mullins' petition
to vacate his conviction under 18 U.S.C. § 924(c). (Doc.
101). Mr. Mullins had argued that Johnson v. United
States, 135 S.Ct. 2551 (2015), eliminated the only
possible basis for his § 924(c) conviction: the residual
clause of § 924(c)(3)(B). (Doc 97). The Court was bound
to reject that argument by a series of Tenth Circuit
decisions holding that “Johnson is
inapplicable to habeas motions when those motions claim that
§ 924(c)(3)(B) is unconstitutional.” (Doc 101 at
5). Mr. Mullins did not appeal the Court's denial of his
Mullins is again before the Court, with the same request. But
two things have changed. First, the Supreme Court has decided
Davis v. United States. Davis held that the
residual clause of “§ 924(c)(3)(B) is
unconstitutionally vague.” Second, the Tenth Circuit
has considered how Davis affects Mr. Mullins'
case. Mr. Mullins filed a motion for permission to file a
successive § 2255 petition,  and the Circuit granted
The Circuit's opinion establishes three propositions: (1)
Davis announced a new rule of constitutional law,
(2) Davis has been made retroactive to cases on
collateral review by the Supreme Court, and (3) the rule
announced in Davis was previously unavailable to Mr.
Davis to his case, as the Circuit has allowed him to
do, Mr. Mullins argues that his § 924(c) conviction is
constitutionally infirm. § 924(c) penalizes (as relevant
here), carrying a firearm during and in relation to a crime
of violence. (Doc. 69). A crime of violence, as defined by
§ 924(c)(3), is a felony offense that either: “(A)
has as an element the use, attempted use, or threatened use
of physical force against the person or property of another,
or (B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.”
Subsection (A) is commonly known as the force clause;
subsection (B) is commonly known as the residual clause.
Davis held the residual clause unconstitutional.
Because Davis applies to cases on collateral review,
it cannot sustain Mr. Mullins' § 924(c) conviction.
the parties agree that the force clause cannot sustain Mr.
Mullins' conviction, either. A crime of violence under
the force clause must have, as an element, the use, attempted
use, or threatened use of physical force. The government
agrees that the offense underlying Mr. Mullins' §
924(c) conviction, conspiracy to commit Hobbs Act robbery
under 18 U.S.C. § 1951, does not have as an element the
use, attempted use, or threatened use of physical force.
Conspiracy convictions, as the Tenth Circuit has explained,
do “not require proof of the use, attempted use, or
threatened use of physical force.”
as the parties agree, removes the only basis for Mr.
Mullins' § 924(c) conviction. The Court ratifies the
parties' agreement, and vacates Mr. Mullins'
conviction pursuant to 18 U.S.C. § 924(c).
THEREFORE ORDERED that Petitioner's Motion under 28
U.S.C. § 2255 to Vacate his Sentence (Doc. 104) is
 A full account of the procedural
history is set out in the Court's earlier order. (Doc.
 139 S.Ct. 2319 (2019).
 139 S.Ct. at 2336.
See28 U.S.C. 2255(h)(2)
(“A second or successive motion must be certified as
provided in section 2244 by a panel of the appropriate court
of appeals to contain…a new rule of constitutional
law, made retroactive to cases on collateral review by the