United States Court of Appeals

for the Fifth Circuit

No. 20-10364

United States of America, 

Plaintiff—Appellee,

versus

Terrell M. Clark, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CV-1071

Before Jones, Costa, and Duncan, Circuit Judges.

Per Curiam:*

Terrell Clark’s successive § 2255 petition challenged his conviction 

under 18 U.S.C. § 924(c) pursuant to United States v. Davis, 139 S. Ct. 2319

(2019). We are constrained to REVERSE the district court decision to the 

contrary and VACATE Clark’s § 924(c) conviction.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 27, 2021

Lyle W. Cayce

Clerk

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I. Background

In 2004, Clark pled guilty to theft of firearms from a licensed firearms 

dealer in violation of 18 U.S.C. § 924(m) (Count 1) and using or carrying a 

firearm during and in relation to a crime of violence in violation of § 924(c) 

(Count Two). This appeal centers on Count Two and whether the supposed 

“crime of violence” Clark committed fell within § 924(c)’s elements clause 

or its constitutionally defective residual clause.1

Regarding the § 924(c) offense, Clark’s indictment listed the 

following predicate crimes of violence: Interference with commerce by 

robbery in violation of 18 U.S.C. § 1951(a) and theft of firearms from a 

licensed dealer in violation of § 924(m). Clark’s factual resume, however, 

solely identified the § 924(m) offense alleged in Count One as the predicate 

crime of violence. And both the government and district court acknowledged

the § 924(m) offense as the relevant crime of violence at Clark’s 

rearraignment.

Clark received an 87-month prison term for the § 924(m) offense, a 

consecutive 153-month prison term for the § 924(c) offense, and concurrent 

three-year terms of supervised release, which was affirmed on direct appeal. 

See United States v. Clark, 214 F. App’x 372, 374–76 (5th Cir. 2006)

(affirming the same aggregate sentence the district court had previously 

1 § 924(c) defines “crime of violence” as a felony that either (1) “has as an element 

the use, attempted use, or threatened use of physical force against the person or property 

of another” (the elements clause), or (2) “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” (the residual clause). § 924(c)(3)(A)-(B); see United States v. 

Bowens, 907 F.3d 347, 353 (5th Cir. 2018) (describing these clauses). The residual clause 

was found unconstitutionally vague by the Supreme Court in Davis. 139 S. Ct. at 2336.

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imposed after the district court resentenced Clark pursuant to an earlier 

remand from the Fifth Circuit).

In 2019, relying on Davis, Clark moved for authorization to file a 

successive § 2255 motion.2 This court granted his motion, concluding that 

Clark had made a showing of possible merit warranting further exploration 

by the district court. In re Clark, No. 19-10989, slip op. at 1 (5th Cir. Dec. 31, 

2019) (unpublished).

Clark raised his claim based on Davis, and two other claims not at issue 

in this appeal, before the district court. In its briefing, the government 

“concede[d] that Clark’s Section 924(c) conviction is premised on a crime—

theft of firearms from a federal firearms licensee—that no longer qualifies as 

a ‘crime of violence’ after Davis” and asked the district court to “vacate 

Clark’s Section 924(c) conviction.” The government recognized that 

Clark’s Davis claim was “arguably procedurally barred because he failed to 

raise the issue on direct appeal,” but it “affirmatively waive[d] any 

procedural-default defense” pursuant to government policy.

Notwithstanding the government’s position, the district court 

rejected Clark’s Davis-based claim, observed it was not bound by the 

government’s concession, and held that the claim was barred because Clark’s 

§ 924(m) offense remained a crime of violence after Davis under the still 

valid elements clause. The court also denied a certificate of appealability 

(“COA”). Clark filed a timely notice of appeal. Approximately one week 

later, the district court sua sponte issued an order to “clarify” its prior order,

2 The district court had previously dismissed Clark’s initial § 2255 motion as time 

barred. Clark v. United States, No. 4:08-CV-432-A (N.D. Tex. Jul. 23, 2008). Clark had 

also previously filed two unsuccessful motions for authorization to file successive § 2255 

motions. See United States v. Clark, No. 12-10720 (5th Cir. Dec. 21, 2012) (unpublished); 

In re Clark, No. 16-10706 (5th Cir. Sept. 30, 2016) (unpublished).

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explaining that its denial of § 2255 relief was based on both the merits of 

Clark’s Davis claim and the procedural bar.

A judge of this court granted Clark’s request for a COA. The court

directed the parties to “address the jurisdictional issue whether Clark proved 

in the district court that the relief he sought relied on a new, retroactive rule 

of constitutional law, including whether he showed that it was more likely 

than not that the district court sentenced him under the part of § 924(c)’s 

crime-of-violence definition rendered unconstitutional in Davis.” Order 2–

3, ECF No. 40-2 (citations omitted). Additionally, a COA was granted as to

(1) whether the district court erred in rejecting Clark’s claim that, after 

Davis, his § 924(c) conviction is invalid because his § 924(m) conviction no 

longer qualifies as a predicate crime of violence; and (2) whether the district 

court erred in alternatively determining that Clark’s claim was procedurally 

barred where the government waived the issue. Id.

II. Discussion

This court reviews the district court’s factual findings for clear error 

and its legal conclusions de novo. See United States v. Clay, 921 F.3d 550, 554 

(5th Cir. 2019) (articulating this standard for appeals of a district court’s 

decision under § 2255).

A. Jurisdictional Issue

Clark meets the jurisdictional requirement because (1) it is more likely 

than not that he was sentenced under § 924(c)’s residual clause, which was

invalidated in Davis; and (2) this court has treated the rule announced in 

Davis as retroactive to cases on collateral review.

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There is little question that Clark was sentenced under § 924(c)’s

residual clause, which was found unconstitutionally vague in Davis.

3

 As 

discussed in Part B, the district court erred by not applying the categorical 

approach to analyzing whether Count Two’s predicate § 924(m) offense was 

a crime of violence under § 924(c),4 and the plain language of § 924(m)

demonstrates his conviction could only be a crime of violence under 

§ 924(c)’s residual clause.

Furthermore, we are constrained to follow other panels of this court 

in applying Davis retroactively to a successive § 2255 motion. See In re 

Harris, 988 F.3d 239, 240–41 (5th Cir. 2021) (Oldham, J., concurring) 

(recognizing the “numerous Fifth Circuit panels that have authorized 

successive motions under § 2255(h)(2) to raise Davis claims,” and observing 

that “the Government has contested none of them”).

B. Invalidity of Clark’s § 924(c) Conviction After Davis

The district court erred by concluding that § 924(m) fell within 

§ 924(c)’s elements clause, which survived Davis. Applying the categorical 

approach, even the government agrees that the § 924(m) predicate offense 

was not a crime of violence based on its plain language. Section 924(m) states

that “[a] person who steals any firearm from a licensed importer, licensed 

manufacturer, licensed dealer, or licensed collector shall be fined under this 

3 Clark’s indictment listed both the § 924(m) offense in Count One and 

interference with commerce by robbery in violation of 18 U.S.C. § 1951(a) as predicate 

crimes of violence. Nevertheless, the government and the district court order under appeal

have analyzed § 924(m) alone as the predicate offense. That is because the factual resume 

for Count Two identified § 924(m) alone as the predicate crime of violence, and both the 

government and district court identified § 924(m) as the predicate crime of violence at 

Clark’s rearraignment.

4 The categorical approach “requires us to look at the elements of an offense, rather 

than the specific facts of a case.” Bowen, 907 F.3d at 353 n.10 (citations omitted).

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title, imprisoned not more than 10 years, or both.” The text does not suggest 

that the “use, attempted use, or threatened use of physical force” is an 

element of the offense. § 924(c)(3)(A) (the elements clause). Thus, applying 

the categorical approach of Davis, § 924(m) could only be a crime of violence 

by relying on the constitutionally defunct residual clause. See Davis,

139 S. Ct. at 2328 (recognizing that “the statutory text commands the 

categorical approach”).

The district court tries to escape this obvious result in two ways. First, 

the court distinguished this court’s decision in Schmidt by arguing that the 

statute at issue there, § 922(u), prohibited stealing “from the person or the 

premises of a person” licensed to deal in firearms. United States v. Schmidt, 

623 F.3d 257, 261–64 (5th Cir. 2010) (holding that 18 U.S.C. § 922(u) is not, 

under the categorical approach, a violent offense under the elements test). 

Schmidt was convicted under the premises prong. See id. at 261; Because the 

statute at issue here, § 924(m), does not distinguish between persons and

premises, the district court concluded that Schmidt was inapposite.

Be that as it may, the district court also looked to the indictment and 

factual resume to establish that § 924(m) was a crime of violence, because

“[i]n this case, movant stole the firearms from a licensed firearms dealer 

through armed robbery.” But, irrespective of the intuitive common sense of 

this logic, the categorical approach looks to the elements of the statute and 

not the substance of the crime committed. Thus, the district court’s analysis 

and emphasis on the facts of Clark’s particular crime are unpersuasive. 

Because a person could violate § 924(m) without the use, attempted use, or 

threatened use of force, § 924(m) does not constitute a crime of violence 

without relying on the constitutionally defective residual clause. The district 

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court errored in concluding that Clark was “convicted of a crime that was 

inherently violent.”5

C. Procedural Bar

Based on the posture of this case, we must also conclude that the 

district court abused its discretion by sua sponteraising the issue of procedural 

bar and alternatively denying Clark’s claim on that basis.6 District courts 

may raise the issue of procedural bar sua sponte but should not do so lightly. 

United States v. Willis, 273 F.3d 592, 597 (5th Cir. 2001). Before doing so,

the district court should consider “whether the petitioner has been given 

notice that procedural default will be an issue for consideration, whether the 

petitioner has had a reasonable opportunity to argue against the application 

of the bar, and whether the State intentionally waived the defense.” Smith v. 

Johnson, 216 F.3d 521, 523–24 (5th Cir. 2000); see Prieto v. Quarterman, 

456 F.3d 511, 518 (5th Cir. 2006) (similar); Willis, 273 F.3d at 597 (similar).7

 

Most important, the government affirmatively waived procedural default as 

5 The district court also cited a Fifth Circuit case that “reiterated that robbery by 

intimidation is a crime of violence.” See United States v. James, 950 F.3d 289 (5th Cir. 

2020)); But that case fulfills the categorical approach, as it explicitly recognized Louisiana 

armed robbery as “the taking of anything of value belonging to another from the person of 

another or that is in the immediate control of another, by use of force or intimidation, while 

armed with a dangerous weapon.” Id. at 291 (quoting LA. REV. STAT. ANN. § 14:64(A)) 

(emphasis added). 

6 See Prieto v. Quarterman, 456 F.3d 511, 518–19 (5th Cir. 2006) (reviewing district 

court’s sua sponte procedural bar ruling for abuse of discretion).

7 As the government recognizes, Clark waived this argument by failing to brief it 

before this court. Although the briefs of pro se litigants are held to less stringent standards, 

even pro se litigants must brief arguments and reasonably comply with the briefing 

requirements of Rule 28. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995) (citing FED.

R. APP. P. 28(a)). Nevertheless, we have “discretion to consider a noncompliant brief” 

and have “allowed pro se plaintiffs to proceed when the plaintiff’s noncompliance did not 

prejudice the opposing party.” Id. at 525 (footnote and citation omitted). Such is the case 

here.

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a defense. Additionally, Clark had minimal notice regarding the procedural 

barissue.

8 And he had no opportunity to raise counterarguments because the 

government’s response indicated it was waiving the defense before the 

district court decided the issue against him. Accordingly, the district court 

abused its discretion by alternatively deciding this case on the procedural bar 

issue.

9

III. Conclusion

Based on the foregoing, we REVERSE the district court’s judgment 

and VACATE Clark’s § 924(c) conviction.

8 The district court’s order requiring Clark to explain how he satisfies the 

requirements for filing a successive § 2255 motion arguably provided Clark with some 

notice regarding the procedural bar issue. But this was insufficient under the totality of 

circumstances here.

9 In any event, we are not convinced that Clark’s motion is procedurally barred 

irrespective of waiver. In Reece, this court rejected the government’s argument that a 

§ 2255 motion was procedurally barred because it had not been raised on direct appeal. 

United States v. Reece, 938 F.3d 630, 634 n.3 (5th Cir. 2019). The panel concluded that if 

Reece’s convictions were based on § 924(c)’s residual clause “then he would be actually 

innocent of those charges under Davis” and “the cause and prejudice standard does not 

apply.” Id. Clark raises this argument on appeal.

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