USCA11 Case: 17-10114 Date Filed: 01/04/2022 Page: 1 of 12
[DO NOTPUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 17-10114
____________________
CHARLES ANDREW FOWLER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:16-cv-01716-JSM-TGW
____________________
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2 Opinion of the Court 17-10114
Before LAGOA, HULL, and MARCUS, Circuit Judges.
LAGOA, Circuit Judge:
Motions filed under
28 U.S.C. § 2255 are subject to a one-
year statute of limitations, which begins to run after one of four
events. Ordinarily, the one-year limitation runs on “the date on
which the judgment of conviction becomes final.”
Id. § 2255(f)(1).
But the statute also provides for three other ways to compute the
one-year timeframe, including “the date on which the right as-
serted was initially recognized by the Supreme Court, if that right
has been newly recognized by the Supreme Court and made retro-
actively applicable to cases on collateral review.” Id. § 2255(f)(3).
Here, Charles Fowler appeals from the district court’s denial
of his motion to set aside, vacate, or correct his sentence filed pur-
suant to § 2255. While Fowler concedes that he filed his § 2255
motion with the district court outside of the one-year window
since his conviction became final, he argues that his motion was
timely because he filed the motion within one year from the date
on which the Supreme Court recognized a new right in Johnson v.
United States,
576 U.S. 591 (2015). In Johnson, the Supreme Court
held that
18 U.S.C. § 924(2)(B)(ii), the residual clause of the Armed
Career Criminal Act (“ACCA”), was unconstitutionally vague.
This Court granted Fowler a motion for a certificate of appealabil-
ity on the following issue only: “Whether the district court erred in
dismissing Fowler’s
28 U.S.C. § 2255 motion as untimely?”
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17-10114 Opinion of the Court 3
Before this Court issued the certificate of appealability, and
while this appeal was pending, this Court entered an order holding
the matter in abeyance pending the Supreme Court’s decision in
United States v. Davis,
139 S. Ct. 2319 (2019). After the Supreme
Court issued its decision in Davis, Fowler, through his counsel, pe-
titioned this Court for leave to file a second or successive § 2255
motion correctly raising Davis as the new right in Eleventh Circuit
case number 20-12272. A panel of this Court denied the petition
without prejudice as premature, noting that this appeal remained
active and pending.
As a result of Davis, Fowler in his initial brief petitioned this
Court to treat his § 2255 motion—expressly based on Johnson—as
one filed under the Davis decision. For the reasons discussed be-
low, this we cannot do. Because Fowler was convicted under
18
U.S.C. § 924(c), we affirm the district court’s order dismissing
Fowler’s motion as untimely, as the Johnson decision was not ap-
plicable to Fowler’s conviction. Fowler, however, is not left with-
out a remedy. Because Fowler filed the appropriate form in case
number 20-12272 for his application to file a successive § 2255 mo-
tion within a year of the Supreme Court’s issuance of the Davis
decision, see 11th Cir. R. 22-3(a), we treat Fowler’s initial brief,
which was filed within a year of the Davis decision, as an applica-
tion for a second or successive § 2255 motion, given the unique
procedural circumstances of this particular case. And for the rea-
sons discussed below, we grant the application.
I. FACTUAL AND PROCEDURAL HISTORY
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4 Opinion of the Court 17-10114
A. Direct Appeal
A federal grand jury indicted Fowler on Count 1 under the
witness-tampering statute, see
18 U.S.C. § 1512(a)(1)(C), for the
murder of Officer Christopher Horner with the intent to prevent
him from communicating information about a federal offense to a
federal law enforcement officer or federal judge; and Count 2 un-
der
18 U.S.C. §§ 924(c)(1)(A), (j)(1), and 1111(a), for using a firearm
during a federal crime of violence and, in doing so, committing the
murder of Officer Horner. Following a trial, the jury found Fowler
guilty on both counts, and the district court sentenced him to life
imprisonment on Count 1 and a consecutive term of ten years’ im-
prisonment on Count 2.
Fowler appealed his conviction, and a panel of this Court af-
firmed the conviction for witness tampering on the grounds that
the “possible or potential communication to federal authorities of
a possible federal crime is sufficient for purposes” of witness tam-
pering. See United States v. Fowler,
603 F.3d 883, 888 (11th Cir.
2010) (emphasis in original), vacated,
654 F.3d 1178 (11th Cir.
2011). The Supreme Court reversed the conviction, holding that
the government must show more than a mere possibility of com-
munication with a federal official for a conviction under the wit-
ness-tampering statute. See Fowler v. United States,
563 U.S. 668,
676–78 (2011). Rather, the Supreme Court held, the government
must establish “a reasonable likelihood” that the victim would have
made “at least one relevant communication . . . to a federal law
enforcement officer.”
Id. at 677–78 (emphasis removed).
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17-10114 Opinion of the Court 5
Consistent with the Supreme Court’s holding, this Court in-
structed the district court to determine whether the evidence pre-
sented at trial was sufficient to satisfy the Supreme Court’s stand-
ard of “reasonable likelihood.” See United States v. Fowler,
654
F.3d 1178, 1178–79 (11th Cir. 2011). On remand, the district court
determined it was not, and offered the government an opportunity
to retry Fowler on Count 1. The district court also stated it would
vacate the sentence on Count 2, reasoning “because obviously a
ten-year sentence on Count 2 is interrelated with the life sentence
I gave on Count 1. I would not have given someone ten years on
a murder-with-a-firearm charge standing alone.” The district court
vacated Fowler’s conviction and sentence on Count 1 after the gov-
ernment decided not to retry him on that count, vacated the ten-
year sentence on Count 2, and re-sentenced him to life imprison-
ment on Count 2. Another panel on this Court affirmed Fowler’s
re-sentence. See United States v. Fowler,
749 F.3d 1010, 1014 (11th
Cir. 2014).
B. Fowler’s Initial
28 U.S.C. § 2255 Motion
Several years after his sentence had become final, on June
23, 2016, Fowler filed a § 2255 motion to set aside, vacate or correct
his sentence, asserting that he was entitled to relief pursuant to
Johnson v. United States,
576 U.S. 591 (2015), which held that the
residual clause,
18 U.S.C. § 924(e)(2)(B)(ii), of ACCA was unconsti-
tutionally vague, and that the one-year limitations period began to
run from “the date on which the right asserted was initially recog-
nized by the Supreme Court. . . . and made retroactively applicable
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6 Opinion of the Court 17-10114
to cases on collateral review.” The district court dismissed the mo-
tion, finding that Johnson struck only
18 U.S.C. § 924(e)(2)(B)(ii),
the residual clause of ACCA, not
18 U.S.C. § 924(c), ACCA’s ele-
ments clause—under which Fowler was convicted and sentenced.
The district court further denied Fowler’s request for a certificate
of appealability.
Fowler proceeded to file a notice of appeal, which this Court
treated as a motion for a certificate of appealability. While this ap-
peal was pending, the Supreme Court entertained and heard argu-
ments in United States v. Davis,
139 S. Ct. 2319 (2019), which re-
sulted in this Court entering an order holding the matter in abey-
ance pending the Supreme Court’s decision in Davis. On June 24,
2019, the Supreme Court’s decision in Davis issued, holding that
18
U.S.C. § 924(c)(3)(B) of ACCA was also unconstitutionally vague.
This Court then granted Fowler a motion for a certificate of appeal-
ability on the following issue only: “Whether the district court
erred in dismissing Fowler’s
28 U.S.C. § 2255 motion as untimely?”
C. Fowler’s Application for Leave to File Second or Successive
28 U.S.C. § 2255 Motion
On June 23, 2020—during the pendency of this appeal—
Fowler filed in this Court an application for leave to file a second
or successive § 2255 motion. See In re Fowler, No. 20-12272 (11th
Cir. 2020). In the application for case number 20-12272, Fowler
argued that Davis rendered his conviction under
18 U.S.C. § 924(c)
unconstitutional. A panel of this Court concluded that his pro-
posed § 2255 motion was “not second or successive within the
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17-10114 Opinion of the Court 7
meaning of §§ 2255(h) and 2244(b)” because his original § 2255 pro-
ceeding was not yet final, and therefore denied Fowler’s applica-
tion without prejudice as premature.
During oral argument in this appeal, counsel for Fowler ex-
plained he filed the application for leave to file a second or succes-
sive § 2255 motion out of an abundance of caution, as he recog-
nized that Davis controlled the analysis of Fowler’s postconviction
claims but the decision in Davis had not yet issued when the initial
§ 2255 motion was filed in the district court. In Fowler’s initial brief
in this appeal, he again requested that this Court treat his brief as
an application for a second or successive § 2255 motion based on
Davis. The initial brief was filed within the one-year window on
which the right asserted was newly recognized in Davis.
II. STANDARD OF REVIEW
Our review “is restricted to the issue[] specified in the certif-
icate of appealability.” Spencer v. Dep’t of Corr.,
609 F.3d 1170,
1180 (11th Cir. 2010) (quoting Williams v. Allen,
598 F.3d 778, 795
(11th Cir. 2010)). Here, the issue on appeal is strictly limited to
whether the district court erred in dismissing Fowler’s § 2255 mo-
tion as untimely. Our review of that issue is de novo. Daniels v.
United States,
809 F.3d 588, 589 (11th Cir. 2015).
III. ANALYSIS
On appeal, Fowler asks us to recast or construe his § 2255
motion as a claim under Davis. This we cannot do. Davis is not
simply an extension of Johnson; “Davis announced a new
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8 Opinion of the Court 17-10114
substantive rule.” In re Hammoud,
931 F.3d 1032, 1039 (11th Cir.
2019) (emphasis added). In Hammoud, we considered an applica-
tion for leave to file a second or successive § 2255 motion from an
individual who contended that his § 924(c) conviction was no
longer valid in light of Davis. 931 F.3d at 1035–36. There, we held
that Davis announced a new rule of constitutional law. Id. at 1038.
In so concluding, we explained that Davis announced a new rule,
in part, because its holding was not necessarily dictated by Johnson,
as illustrated by the circuit split that preceded it. Id. at 1038–39.
We also held that the Supreme Court made the Davis rule retroac-
tively applicable to criminal cases that became final before it was
announced. Id. at 1039. We further concluded that the applicant’s
claim was not barred as repetitious because, although he had raised
a Johnson claim in a previous successive application, that claim was
distinct from his Davis claim because Davis announced a new rule
separate and apart from Johnson. Id. at 1039–40.
A federal prisoner who wishes to file a second or successive
§ 2255 motion may receive authorization to do so if he makes a
prima facie showing that the proposed motion contains claims
premised on “a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previ-
ously unavailable.”
28 U.S.C. §§ 2244(b)(3)(C), 2255(h)(2). A fed-
eral prisoner may not raise a claim in a second or successive § 2255
motion if he already raised that claim in a prior application. In re
Baptiste,
828 F.3d 1337, 1339–40 (11th Cir. 2016).
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17-10114 Opinion of the Court 9
In other words, “a Johnson claim is distinct from a Davis
claim.” Granda v. United States,
990 F.3d 1272, 1283 (11th Cir.
2021). Indeed, in In re Hammoud, this Court stated that: “Ham-
moud’s reliance on . . . Johnson to support his § 924(c) challenge is
misplaced, as [Johnson] involved . . . the ACCA . . . . Thus, Ham-
moud’s present claim is best described as a Davis claim.” In re
Hammoud, 931 F.3d at 1036 n.1. Hammoud and Granda read to-
gether make abundantly clear that Davis is not “Johnson-plus.” To
the extent that our prior case law was not clear, we reaffirm and
hold that defendants challenging their convictions and sentences
under § 924(c) must bring their § 2255 motions under Davis, not
Johnson.
Fowler contends, however, that the notion that Davis cre-
ated a new rule separate and distinct from Johnson was a courtesy
to defendants who were outside the one-year window from John-
son to file § 2255 motions. In other words, Fowler argues that if
this Court never issued In re Hammoud and, therefore, never de-
termined that Davis was separate and distinct from Johnson, de-
fendants without the foresight to see Davis invalidating § 924(c) at
some point in the future would be unable to file such collateral at-
tacks on their convictions if one year lapsed since Johnson and they
failed to file a challenge. Fowler argues that this Court’s decision,
Solomon v. United States,
911 F.3d 1356 (11th Cir. 2019), supports
his argument. In Solomon, the certificate of appealability raised
the question of whether Johnson applied to § 924(c). Id. at 1357.
While Solomon was issued prior to the Supreme Court’s decision
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10 Opinion of the Court 17-10114
in Davis, Fowler points to language in Solomon that describes the
authorization to file a second or successive § 2255 motion as “a
threshold determination and narrowly circumscribed,” and that
“[t]he successive motion does not stand in the place of a first § 2255
motion, allowing the movant to raise any claim that would have
been cognizable in an original § 2255 proceeding.” Id. at 1360.
Again, this language works in Fowler’s favor only if we disregard
Hammoud’s central holding. Fowler’s initial § 2255 motion—the
motion that is on appeal—was improper from the outset; it sought
relief from his conviction under § 924(c) based on a right estab-
lished in Johnson, which did not address § 924(c).
Indeed, Fowler’s co-defendant raised an identical argument.
In Paige v. United States, 798 F. App’x 470, 471 (11th Cir. 2020), the
defendant, convicted and sentenced under § 924(c), filed a § 2255
motion under Johnson. A panel of this Court concluded that
“[b]ecause [the] instant § 2255 motion only raised a Johnson claim,
and because, under In re Hammoud, Johnson claims are distinct
from Davis claims, the district court did not err in denying Paige’s
§ 2255 motion.” Id. at 472.
Fowler argues that Paige and other similar cases, such as
Granda, represent a “completely different set of circumstances,” as
they were “decided on the merits.” While it is true that we are not
presented with the merits of Fowler’s claims here, the threshold
question of whether the Supreme Court created a new right in Da-
vis separate and apart from Johnson nonetheless applies equally
here. Fowler’s attempt to distinguish the issue here—the
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17-10114 Opinion of the Court 11
timeliness of his § 2255 motion—from the issue in Paige—the mer-
its of Paige’s motion—is a distinction without a difference. Because
Fowler filed his § 2255 motion well after the one-year limitation
from the date of his conviction being final, the only other way for
Fowler to satisfy the one-year limitations period under the statute
was to file the motion within one year of a newly recognized right
by the Supreme Court in Davis. Identifying precisely under which
right recognized by the Supreme Court a defendant purports to
challenge his or her conviction and sentence is not just a matter for
the merits of a § 2255 motion; it is also a matter for determining
timeliness based on the explicit statutory language of
28 U.S.C.
§ 2255(f)(3).
The issue in Fowler’s certificate of appealability is a narrow
one: whether the district court erred in dismissing Fowler’s § 2255
motion as untimely. It did not. Fowler filed his § 2255 motion well
past one year from the date on which his conviction became final.
The alternative limitations period based on a newly created right
by the Supreme Court does not save his untimely filing because
Johnson did not invalidate the statute under which Fowler was
convicted, and a Johnson claim cannot be construed as a Davis
claim. We therefore affirm the district court’s order but note that
as the certificate of appealability asked this Court to determine only
whether Fowler timely filed his § 2255 motion, we offer no com-
ment on his alternative argument on the merits of his motion.
Notwithstanding the affirmance on the certificate of appeal-
ability, we recognize that Fowler in his initial brief in this case asked
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12 Opinion of the Court 17-10114
this Court to treat the initial brief as an application to file a succes-
sive § 2255 motion based on Davis, within a year of the Davis deci-
sion. Additionally, Fowler, in case number 20-12272, filed an appli-
cation to file a successive § 2255 motion based on Davis within a
year of that decision using the appropriate form, although that ap-
plication was denied by this Court without prejudice as premature
as his § 2255 motion Johnson appeal was held in abeyance pending
the outcome of Davis. See 11th Cir. R. 22-3(a). As a result of these
unique circumstances, we treat Fowler’s initial brief—which was
filed within one year of a right newly recognized by the Supreme
Court in Davis—as an application for a second or successive § 2255
motion based on Davis, and we grant the application.
APPEAL AFFIRMED; APPLICATION FOR LEAVE TO
FILE SECOND OR SUCCESSIVE § 2255 MOTION GRANTED.
