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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14493
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:18-cv-24179-PAS,
1:09-cr-20964-PAS-1
ALBERTO GRAJALES,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 12, 2021)
Before MARTIN, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM:
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Alberto Grajales, a counseled federal prisoner, appeals the district court’s
denial of his
28 U.S.C. § 2255 motion to vacate.1 The district court granted a
certificate of appealability 2 on the following issues: (1) the correct legal standard
that Grajales must meet in order to establish relief on his United States v. Davis,
139
S. Ct. 2319 (2019) claim that his
18 U.S.C. § 924(c) conviction is invalid; and (2)
the precedential weight that should be afforded to published panel decisions on
applications for second or successive motions to vacate.
On appeal, Grajales argues that his § 924(c) conviction is invalid under
Stromberg v. California,
283 U.S. 359 (1931) and that a jury’s general verdict on an
18 U.S.C. § 924(c) conviction is not harmless under Parker v. Secretary,
331 F.3d
764 (11th Cir. 2003). Grajales further argues that published panel decisions on
applications for successive motions to vacate are precedential, but that the standard
1
When reviewing a district court’s denial of a
28 U.S.C. § 2255 motion, we review
questions of law de novo and factual findings for clear error. Lynn v. United States,
365 F.3d 1225,
1232 (11th Cir. 2004). Similarly, we review de novo whether procedural default precludes a §
2255 petitioner’s claim, which is a mixed question of law and fact. Granda v. United States,
990
F.3d 1272, 1286 (11th Cir. 2021).
2
While the scope of review in a § 2255 appeal is limited to issues specified in the certificate
of appealability, we will “construe the issue specification in light of the pleadings and other parts
of the record.” See Murray v. United States,
145 F.3d 1249, 1251 (11th Cir. 1998). We have read
a COA to encompass procedural issues that must be resolved before we can reach the merits of the
underlying claim. McCoy v. United States,
266 F.3d 1245, 1248 n.2 (11th Cir. 2001). However,
we have also held that we may skip over procedural default issues if the claim would fail on the
merits. See Dallas v. Warden,
964 F.3d 1285, 1307 (11th Cir. 2020), petition for cert. filed (U.S.
Feb. 27, 2021) (20-7589). We may affirm the judgment of the district court on any ground
supported by the record, regardless of whether that ground was relied upon or even considered by
the district court. LeCroy v. United States,
739 F.3d 1297, 1312 (11th Cir. 2014).
2
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that the district court relied upon from In re Cannon,
931 F.3d 1236 (11th Cir. 2019),
was dicta and was not binding. For the reasons discussed below, we affirm.
Section 2255 allows federal prisoners to obtain post-conviction relief and set
aside prior convictions when a sentence “was imposed in violation of the
Constitution or laws of the United States.”
28 U.S.C. § 2255. However, a § 2255
claim may be procedurally defaulted if the petitioner failed to raise the claim on
direct appeal. Jones v. United States,
153 F.3d 1305, 1307 (11th Cir. 1998). A
defendant can avoid the procedural default bar if the alleged error is jurisdictional.
See United States v. Bane,
948 F.3d 1290, 1295 (11th Cir. 2020) (noting that the
Supreme Court has cautioned the labeling of errors as “jurisdictional.”). Federal
district courts have statutory power to adjudicate the prosecution of federal offenses.
18 U.S.C. § 3231. When an indictment affirmatively alleges conduct that is not a
federal offense, the district court does not have jurisdiction to enter a judgment or
accept a guilty plea. See Bane, 948 F.3d at 1295. We have held “that a district court
lacks jurisdiction when an indictment alleges only a non-offense.” See United States
v. Peter,
310 F.3d 709, 715-16 (11th Cir. 2002).
A defendant can overcome the procedural bar by establishing either (1) cause
for the default and actual prejudice from the alleged error, or (2) that he is actually
innocent of the crimes for which he was convicted. Howard v. United States,
374
F.3d 1068, 1072 (11th Cir. 2004). A defendant may show cause for failing to raise
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a claim when, at the time of the default, the claim was “so novel” that the legal basis
of the claim was not reasonably available to counsel but not simply when
“subsequent legal developments” made the claim easier to pursue. McCoy v. United
States,
266 F.3d 1245, 1258 (11th Cir. 2001) (quotation marks omitted).
Under
18 U.S.C. § 924(c), a defendant receives a mandatory consecutive
sentence if he uses or carries a firearm during a crime of violence or a
drug- trafficking crime.
18 U.S.C. § 924(c)(1). Under § 924(c)(3), a crime of
violence is an offense that is a felony and (A) “has 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.”
18 U.S.C. § 924(c)(3)(A), (B). We have referred to § 924(c)(3)(A) as the “elements
clause” and to § 924(c)(3)(B) as the “residual clause.” Davis,
139 S. Ct. at 2323,
2336. The Supreme Court held in Davis that the residual clause was
unconstitutionally vague.
Id. Subsequently, we held that conspiracy to commit
Hobbs Act robbery did not qualify as a crime of violence under the elements clause.
Brown v. United States,
942 F.3d 1069, 1075-76 (11th Cir. 2019).
In Granda, we held that a § 2255 petitioner’s challenge under Davis was
procedurally defaulted because he could not show cause or actual prejudice. Granda
v. United States,
990 F.3d 1272, 1286-92 (11th Cir. 2021). We held that Granda
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could not establish cause because the case law at the time of his appeal in 2009
confirmed that he did not lack the “building blocks” of a vagueness challenge to the
18 U.S.C. § 924(c) residual clause. See
id. at 1282, 1287-88. Even if Granda could
show cause, he could not show actual prejudice to overcome procedural default,
because the jury’s findings as to which of his multiple, qualifying convictions was a
predicate for his § 924(o) conviction “rested on the same operative facts and the
same set of events.” See id. at 1289, 1291. Further, he could not establish actual
innocence because he would have to establish that “no reasonable juror would have
concluded he conspired to possess a firearm in furtherance of any of the valid
predicate offenses.” Id. at 1292.
As an initial matter, it is unnecessary to determine whether Grajales has
procedurally defaulted his Davis claim because, as discussed below, his Davis claim
ultimately fails on the merits. See Dallas, 964 F.3d at 1307.
In Granda, we held that, notwithstanding procedural default, collateral relief
for a Davis claim is proper only if the court has “grave doubt” about whether a trial
error had a “substantial and injurious effect or influence” in determining the verdict.
Granda, 990 F.3d at 1292 (quoting Davis v. Ayala,
576 U.S. 257, 267-68 (2015)).
We explained that a petitioner must show more than a reasonable possibility that the
error was harmful, and we would grant relief “only if the error ‘resulted in actual
prejudice’” to the petitioner. Granda, 990 F.3d at 1292 (quoting Brecht v.
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Abrahamson,
507 U.S. 619, 637 (1993)). The reviewing court must ask directly
whether the error substantially influenced the jury’s verdict. Id. at 1293. Thus, it is
not enough for a petitioner to show that the jury may have relied on the now-invalid
residual clause; he must show a “substantial likelihood” that the jury did rely on that
subsection. Id. at 1288. Additionally, we have rejected the argument that it is
improper to rely on an alternative valid predicate based on Stromberg or Parker,
when conducting a harmless error analysis. Id. at 1293-94. Further, we rejected the
argument that we must apply the categorical approach to a § 924(c) conviction to
presume that that conviction rested on an invalid predicate. Id. at 1295-96. In
Granda, the record did not raise a grave doubt about whether Granda’s § 924(o)
conviction rested on the invalid predicate because the conspiracy to commit Hobbs
Act robbery was inextricably intertwined with the other predicate offenses. Id. at
1293; see also Foster v. United States,
996 F.3d 1100, 1108 (11th Cir. 2021) (holding
that there was no real possibility that the jury could have found that the gun in
question was used or connected to the conspiracy to rob the stash house without also
finding that the gun was connected to his conspiracy and attempt to possess with
intent to distribute the cocaine that he had planned to rob from the same stash house,
thus the inclusion of the invalid predicate was harmless).
Grajales asserts on appeal that Stromberg, Parker, and O’Neal delineate his
burden of proof. However, we clarified in Granda that a movant may succeed on
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the merits if the court has “grave doubt” about whether a trial error had a “substantial
and injurious effect or influence” in determining the verdict and that Brecht’s
harmless error standard applies, which requires the movant to show that the alleged
error resulted in actual prejudice. Granda, 990 F.3d at 1292. Here, we conclude
that Grajales has not shown that he suffered actual prejudice from the general verdict
because the predicate offenses for his § 924(c) conviction were inextricably
intertwined. See id.at 1293. As such, Grajales cannot show that there was a
substantial likelihood that the § 924(c) conviction rested on the conspiracy to commit
Hobbs Act robbery predicate, and thus he cannot establish actual prejudice. See
Granda, 990 F.3d at 1288, 1292.
Under our prior panel precedent rule, the holding of a prior panel is binding
on all subsequent panels unless or until the decision is overruled or it is undermined
to the point of abrogation by this Court sitting en banc or the Supreme Court. United
States v. Archer,
531 F.3d 1347, 1352 (11th Cir. 2008). We have held that the prior
precedent rule “applies with equal force as to prior panel decisions published in the
context of applications to file second or successive petitions.” In re Lambrix,
776
F.3d 789, 794 (11th Cir. 2015).
In response to the certificate of appealability, published panel decisions on
applications for second or successive motions to vacate are given equal precedential
weight. See In re Lambrix, 776 F.3d at 794. As such, prior published panel
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decisions stemming from applications for second or successive motions to vacate
are binding unless or until the decision is abrogated by this Court sitting en banc or
the Supreme Court. See Archer,
531 F.3d at 1352. Accordingly, we affirm the denial
of Grajales’s § 2255 motion to vacate.
AFFIRMED.
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