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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15782
Non-Argument Calendar
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D.C. Docket Nos. 8:15-cv-02467-JSM-MAP; 8:09-cr-00434-JSM-MAP-1
CHRISTOPHER FRENCH,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 3, 2018)
Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Christopher French, a federal prisoner proceeding pro se, appeals the
dismissal of his motion to vacate, set aside, or correct his sentence, pursuant to 28
U.S.C. § 2255. We granted a certificate of appealability (“COA”) on the issue of
whether the district court erred in dismissing as time-barred French’s claim that he
no longer qualifies as an armed career criminal after the Supreme Court’s decision
in Johnson v. United States, 576 U.S. ___,
135 S. Ct. 2251 (2015). French argues
that the district court erred because his Johnson-based motion was timely under 28
U.S.C. § 2255(f)(3). We agree, and we vacate and remand.
I.
On January 12, 2010, the district court accepted French’s plea of guilty to
one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). A few months later, French was sentenced under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), to the mandatory minimum
sentence of fifteen years of imprisonment.
The ACCA requires a prison sentence of no less than fifteen years when a
defendant who violates § 922(g) has three or more prior convictions for a “violent
felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA defines
the term “violent felony” to include any crime that “involves conduct that presents
a serious potential risk of physical injury to another.”
Id. § 924(e)(2)(B)(ii). This
part of the violent-felony definition is known as the “residual clause.” See Mays v.
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United States,
817 F.3d 728, 730–31 (11th Cir. 2016). The remaining portions of
the violent-felony definition are known as the “enumerated clause” and the
“elements clause.”
Id. at 731.
French’s ACCA sentence was based on four prior convictions for aggravated
burglary in Tennessee. See Tenn. Code § 39-14-403. French’s presentence
investigation report (“PSR”) designated these convictions as “violent felonies” but
did not indicate under which ACCA clause they qualified. Likewise, the district
court at sentencing did not indicate upon which clause the ACCA sentence was
based. French did not pursue a direct appeal.
On June 26, 2015, the Supreme Court issued the Johnson decision, which
held that the residual clause of the ACCA is unconstitutionally vague.
Johnson,
135 S. Ct. at 2563. The Supreme Court went on to hold that Johnson is
retroactively applicable to cases on collateral review. Welch v. United States, 578
U.S. ___,
136 S. Ct. 1257, 1268 (2016).
On October 19, 2015, French filed a pro se motion to correct his sentence
under 28 U.S.C. § 2255. He argued that his ACCA sentence was invalid in light of
Johnson and that he “no longer has the qualifying predicates needed to uphold his
sentence.” He contended that, after Johnson, his convictions for aggravated
burglary no longer qualified as ACCA predicate offenses. In an attached
memorandum, he argued that his prior convictions could not be used to enhance
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his sentence because they did not qualify under either the enumerated clause or the
elements clause. And he asserted that his § 2255 motion was timely because it was
filed within one year of Johnson.
The district court dismissed French’s § 2255 motion, finding that it was not
timely because it was not actually based on Johnson. The court determined that
Johnson did not affect French’s sentence because his Tennessee convictions for
aggravated burglary qualified as ACCA predicates under the “enumerated clause,”
citing a Sixth Circuit decision issued after French was sentenced in 2010.
French appealed, and this Court granted a COA on the question of whether
the district court erred in dismissing French’s § 2255 motion as time-barred.
II.
A district court’s determination that a § 2255 motion is time-barred is
reviewed de novo. Drury v. United States,
507 F.3d 1295, 1296 (11th Cir. 2007).
We liberally construe the filings of pro se parties. Mederos v. United States,
218
F.3d 1252, 1254 (11th Cir. 2000).
A § 2255 motion is timely if it is filed within one year of the latest of four
possible triggering dates. 28 U.S.C. § 2255(f). The triggering date relevant to this
case is “the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review.”
Id. § 2255(f)(3). It is
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undisputed that Johnson constituted a newly recognized right that has been made
to apply retroactively on collateral review. See
Welch, 136 S. Ct. at 1268. And
French’s § 2255 motion was clearly filed within a year of Johnson.
After the district court’s decision in this case, and while French’s appeal was
pending, a panel of this Court decided Beeman v. United States,
871 F.3d 1215
(11th Cir. 2017). Beeman involved a § 2255 motion that purported to rely on
Johnson but was dismissed because the district court found it was actually based
on Descamps v. United States,
570 U.S. 254 (2013).
Beeman, 871 F.3d at 1218–
19. The Beeman panel clarified that a claim based on Descamps would not trigger
the one-year limitations provision of 28 U.S.C. § 2255(f)(3), but a claim based on
Johnson would.
Id. at 1220.
To distinguish between the two types of claims, the panel explained that “[a]
Johnson claim contends that the defendant was sentenced as an armed career
criminal under the residual clause, while a Descamps claim asserts that the
defendant was incorrectly sentenced . . . under [the other] clause[s].”
Id. The
panel found that Beeman had raised a timely Johnson claim because he argued that
his offense “historically qualified as an ACCA predicate under the ACCA’s
residual clause,” and because he filed his motion just before the one-year
anniversary of the Johnson decision.
Id. at 1220–21 (alteration adopted). The
panel then proceeded to consider the merits of the Johnson claim.
Id. at 1221.
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III.
Under § 2255(f)(3), French’s § 2255 motion was timely if he “assert[ed] a
Johnson claim.”
Id. at 1220. And he asserted a Johnson claim if he “contend[ed]
that [he] was sentenced as an armed career criminal under the residual clause.”
Id.
We conclude that he did.
In his § 2255 motion and a supporting memorandum, French made repeated
references to Johnson and claimed that Johnson invalidated his ACCA sentence.
He contended that, in light of Johnson, he “no longer has the qualifying predicates
needed to uphold his sentence.” And he asserted that his ACCA sentence could
not stand because his prior convictions for aggravated battery did not qualify under
either the enumerated clause or the elements clause. Thus, French clearly asserted
that Johnson affected whether or not he qualified as an armed career criminal,
which, when liberally construed, we read as an assertion that he was sentenced
based on the residual clause. See
Mederos, 218 F.3d at 1254. Plus, French
specifically asserted that his § 2255 motion was timely because it was filed within
one year of Johnson, which demonstrates his desire to raise a Johnson claim. See
Beeman, 871 F.3d at 1221.
We disagree with the government that French’s motion failed to raise a
Johnson claim because he did not explicitly assert that his sentence was based on
the residual clause. The government essentially faults French for failing to
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conform his § 2255 motion to Beeman. But Beeman was not decided until well
after he filed for collateral relief. And, before Beeman, the showing required for a
Johnson claim in a § 2255 motion was in dispute. Compare In re Moore,
830 F.3d
1268, 1273 (11th Cir. 2016), with In re Chance,
831 F.3d 1335, 1339 (11th Cir.
2016). More broadly, French’s failure to expressly invoke the residual clause as
the basis for his sentence is not fatal because his motion considered as a whole,
with its repeated references to Johnson, is reasonably read to advocate that he was
sentenced under the residual clause.
We therefore conclude that French’s motion was timely because he raised a
Johnson claim. That does not end our inquiry, however. In Beeman, after the
panel held that the district court erred in finding the motion untimely, it evaluated
the merits of the Johnson claim because Beeman said the factual record was
sufficient to decide his claim. See
Beeman, 871 F.3d at 1221. French makes no
similar assertion here. Instead, he asks that we reverse the district court’s
untimeliness ruling and remand for the court to address the merits of his claim.
The district court did make a finding that French’s prior offenses still qualify
as ACCA predicate offenses after Johnson. However, the Sixth Circuit decision
the court relied on, United States v. Priddy,
808 F.3d 676, 684 (6th Cir. 2015), has
since been abrogated by the court sitting en banc. United States v. Stitt,
860 F.3d
854 (6th Cir. 2017) (en banc) (holding that the Tennessee aggravated burglary
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statute is broader than the definition of generic burglary and does not qualify as an
ACCA predicate offense).
More importantly, the district court did not have an opportunity to apply the
new standard articulated by Beeman, which requires a petitioner to show it is more
likely than not that he was sentenced solely under the residual clause,
Beeman, 871
F.3d at 1221–22, which the panel explained is “a historical fact.”
Id. at 1224 n.5.
If French cannot make this showing, he is not entitled to relief even though his
predicate convictions no longer qualify as violent felonies under current precedent.
See
id. at 1224–25 & n.5.
Because Beeman was decided after the district court ruled on French’s
petition, the parties had no occasion to address its impact and the court did not
make the finding of “historical fact” on which French’s Johnson claim depends.
See
id. We therefore find that a remand is appropriate, notwithstanding the
government’s claim that French cannot carry his burden under Beeman. See
Schumann v. Collier Anesthesia, P.A.,
803 F.3d 1199, 1203 (11th Cir. 2015)
(remanding after this Court adopted a new legal test “[t]o allow the district court to
apply this test in the first instance and, if the district court desires, to give the
parties an opportunity to further develop the record to address the components of
the test”); see also Whatley v. Warden, Ware State Prison,
802 F.2d 1205, 1213
(11th Cir. 2015) (“[W]e are a court of appeals. We do not make fact findings. We
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review them for clear error.”). On remand, the district court should consider in the
first instance whether French can show, as a historical fact, that he was more likely
than not sentenced under the residual clause. See
Beeman, 871 F.3d at 1221–22.
VACATED AND REMANDED.
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