DENNIS JACOBS, Circuit Judge:
Following a jury trial in the United States District Court for the Southern District of New York (Rakoff, J.), Leonard C. Johnson was convicted of (1) bank robbery, (2) armed bank robbery, and (3) using and carrying a firearm during and in connection with a crime of violence — the bank robbery. In a prior appeal, we vacated the bank robbery conviction on the ground of multiplicity with the conviction for armed bank robbery in the same incident. The current 28 U.S.C. § 2255 petition argues that the firearms conviction must be now vacated because there is no subsisting conviction on the predicate crime of violence. The district court (Engelmayer, J.)
We hold that a conviction under 18 U.S.C. § 924(c) requires legally sufficient proof that the predicate crime of violence (or drug trafficking) was committed, but does not require a conviction for that predicate crime.
Affirmed.
In August 1998, Johnson entered a bank, pointed a gun at the cashier, and demanded money. In connection with that single incident, he was charged with (1) bank robbery, in violation of 18 U.S.C. § 2113(a) ("Count One"); (2) armed bank robbery, in violation of 18 U.S.C. § 2113(d) ("Count Two"); and (3) using and carrying a firearm during and in connection with a crime of violence in violation of 18 U.S.C. § 924(c) ("Count Three"). The indictment charged that Johnson committed the firearms offense in Count Three during and in connection with the "bank robbery charged in Count One."
Johnson then filed a pro se petition for relief under 28 U.S.C. § 2255, arguing (inter alia) that his convictions on Counts One and Two violated the Double Jeopardy Clause.
Following a number of procedural developments, Johnson filed the present 28 U.S.C. § 2255 petition — his third — with the assistance of new counsel. This new petition argues (inter alia) that: (1) the conviction on Count Three must be vacated in light of the vacatur of the conviction on Count One, and (2) Johnson's prior counsel provided ineffective assistance. The district court rejected these arguments, but granted a certificate of appealability as to both issues.
The government encourages us to avoid the merits, arguing that Johnson is procedurally barred from asserting his claims, either because he previously failed to present them or because, having previously presented them, he is bound by the law of the case. For his part, Johnson argues that the government waived its procedural arguments by not properly presenting them below, and that any default was excused by the ineffectiveness of prior defense counsel.
We see no reason to undertake a (likely unedifying) tour of the procedural landscape: there are two prior summary orders of this Court, along with an opinion interpreting an intervening Supreme Court case, see Johnson v. United States, 623 F.3d 41, 42 (2d Cir.2010) (interpreting Magwood v. Patterson, 561 U.S. 320, 323-24, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010)); rulings by two district judges (Judge Rakoff and Judge Engelmayer) and two magistrate judges (Judge Maas and Judge Fox) on three separate 28 U.S.C. § 2255 petitions; and multiple sets of defense counsel, as well as intervals during which Johnson was pro se. "It is well-settled that the doctrine of procedural default is prudential rather than jurisdictional in nature." Kuhali v. Reno, 266 F.3d 93, 101 (2d Cir.2001). And "the law of the case doctrine does not bind us with the same rigidity as it binds the district court." United States v. Tenzer, 213 F.3d 34, 40 (2d Cir.2000).
Johnson's arguments fail on the merits. "We review de novo a district court's denial of a 28 U.S.C. § 2255 petition." Kaminski v. United States, 339 F.3d 84, 86 (2d Cir.2003).
The indictment specified that the "bank robbery charged in Count One" was the
The first premise — that the vacatur of Count One undermined the factual basis for the Count Three conviction — is unsound for reasons we explained in United States v. Ansaldi:
372 F.3d 118, 125 (2d Cir.2004).
Johnson urges us to overrule Ansaldi. However, a panel of this Court is "bound by the decisions of prior panels until such time as they are overruled either by an en banc panel of our Court or by the Supreme Court." United States v. Wilkerson, 361 F.3d 717, 732 (2d Cir.2004). In any event, Johnson offers no persuasive argument to challenge Ansaldi's holding or its reasoning. We therefore reject the premise that the vacatur of Count One disturbed the factual basis for the conviction on Count Three.
Can a defendant be convicted of a firearms offense under 18 U.S.C. § 924(c) who has not been convicted of the predicate crime of violence (or drug trafficking) in connection with which the firearms offense was committed? We have previously discussed that question, but declined to answer it. See Zhou, 428 F.3d at 378-79 & n. 16.
Under 18 U.S.C. § 924(c), "any person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall" be subject to criminal penalties. 18 U.S.C. § 924(c)(1)(A). Among the crimes of violence that may serve as a predicate for a § 924(c) conviction are the bank robbery and armed bank robbery offenses charged against Johnson in Counts One and Two. 18 U.S.C. § 924(c)(3) (defining "crime of violence" to include any felony that "has as an element the use, attempted use, or threatened use of physical force against
The Zhou defendants were charged with Hobbs Act extortion and conspiracy to commit extortion, as well as § 924(c) offenses in connection with those extortion-related crimes. 428 F.3d at 364. The defendants challenged the sufficiency of evidence for the extortion-related crimes and argued that their convictions under § 924(c) likewise had to be reversed. We concluded that the proof of extortion was indeed legally insufficient, and that "if the proof of the predicate crime is so fundamentally deficient that it could not sustain a conviction, then likewise, a conviction under § 924 cannot stand." Id. at 377-79. A § 924(c) conviction must be supported by, at the very least, "legally sufficient proof of the underlying offense." Id. at 379.
Zhou expressly declined to resolve two questions: (1) whether a § 924(c) conviction can be sustained if, notwithstanding legally sufficient proof, the jury acquits on the predicate crime, id. at 379 n. 16, and (2) whether a § 924(c) conviction requires that the defendant be charged with and convicted of the predicate crime, id. at 378-79; see also United States v. Parker, 577 F.3d 143, 146 n. 2 (2d Cir.2009).
The second question, however, must be decided now because Johnson was convicted under § 924(c) of using a firearm in connection with the Count One robbery, and the Count One conviction was vacated.
We join that consensus. The plain language of § 924(c) requires only that the predicate crime of violence (or drug trafficking)
"A claim of ineffective assistance entails a showing that: 1) the defense counsel's performance was objectively unreasonable; and 2) the deficient performance prejudiced the defense." Kovacs v. United States, 744 F.3d 44, 49 (2d Cir. 2014) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Johnson claims that prior counsel was ineffective for failing to (1) identify the multiplicity argument that resulted in the vacatur of Count One, and (2) challenge Count Three on the grounds that Johnson advances now.
Neither claim succeeds: (1) To the extent counsel was deficient in failing to challenge Count One, any possible prejudice has already been remedied by our vacatur of Count One,
For the foregoing reasons, we affirm the order of the district court.