Case: 17-12037 Date Filed: 09/05/2019 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12037
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:16-cv-22522-CMA,
1:08-cr-20723-CMA-1
ALFREDO MORTON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 5, 2019)
Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Alfredo Morton appeals the district court’s dismissal of his second or
successive 28 U.S.C. § 2255 motion to vacate his conviction and 120-month
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sentence for using, carrying, or possessing a firearm in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). Morton’s conviction was
predicated on his separate convictions for conspiracy to commit Hobbs Act
robbery and attempted Hobbs Act robbery. After careful consideration, we affirm.
“When we review the denial of a motion to vacate, 28 U.S.C. § 2255, we
review legal conclusions de novo and findings of fact for clear error.” Stoufflet v.
United States,
757 F.3d 1236, 1239 (11th Cir. 2014). The scope of our review of
an unsuccessful § 2255 motion is limited to the issues enumerated in the certificate
of appealability (“COA”). McKay v. United States,
657 F.3d 1190, 1195 (11th
Cir. 2011). Further, without this Court’s authorization, “the district court lacks
jurisdiction to consider” a second or successive § 2255 motion. See In re
Bradford,
830 F.3d 1273, 1276–77 (11th Cir. 2016) (per curiam) (collecting cases).
Morton raises two issues on appeal. Morton first argues his sentences are
invalid in light of the Supreme Court’s decision in Dean v. United States, 581 U.S.
___,
137 S. Ct. 1170 (2017). This argument is outside the scope of Morton’s COA
and therefore not properly before us. See
McKay, 657 F.3d at 1195. As a result,
we decline to consider it on appeal.
Second, Moron argues his § 924(c) conviction and sentence are invalid
because Johnson v. United States, 576 U.S. ___,
135 S. Ct. 2551 (2015), rendered
924(c)’s residual clause unconstitutionally vague. He contends his attempted
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Hobbs Act robbery and conspiracy to commit Hobbs Act robbery convictions no
longer qualify as predicate crimes of violence for his § 924(c) convictions.
In 2016, this Court granted Morton leave to file a second or successive
§ 2255 motion because, at that time, this Court had not yet decided whether
Johnson invalidated § 924(c)’s residual clause. Since then, this Court held that
Johnson did not support a vagueness-based challenge to § 924(c)’s residual clause.
See Ovalles v. United States,
905 F.3d 1231, 1234, 1253 (11th Cir. 2018) (en
banc), abrogated by United States v. Davis, 588 U.S. ___,
139 S. Ct. 2319, 2324,
2326 (2019); In re Garrett,
908 F.3d 686, 689 (11th Cir. 2018), abrogated in part
by
Davis, 139 S. Ct. at 2324, 2326. But the Supreme Court recently rejected this
Court’s precedent in Ovalles, holding that § 924(c)’s residual clause is
unconstitutionally vague.
Davis, 139 S. Ct. at 2336.
This leaves us with Morton’s contention that § 924(c)’s residual clause is
unconstitutionally vague. He is right on that point. See
id. But we cannot reverse
the district court’s order denying his § 2255 motion. As this Court recently
explained in In re Hammoud, ___ F.3d ___,
2019 WL 3296800 (11th Cir. July 23,
2019), § 2255 claims brought under Johnson and Davis challenging convictions
and sentences under § 924(c)’s residual clause are separate and distinct.
Id. at *4
(“Davis announced a new substantive rule of constitutional law in its own right,
separate and apart from (albeit primarily based on) Johnson.”). This Court granted
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Morton leave to file a Johnson-based challenge to his conviction and sentence in
the district court—not a Davis challenge. We therefore cannot now consider the
effect of Davis on the denial of Morton’s § 2255 petition. See
Bradford, 830 F.3d
at 1276–77. And our binding precedent requires us to conclude that the new,
retroactive rule in Johnson does not give Morton relief. See In re
Garrett, 908 F.3d
at 689.
Although Morton’s Johnson challenge is unsuccessful, he is free to file
another application in this Court seeking an order authorizing the district court to
consider a second or successive motion under § 2255 based on Davis. See 28
U.S.C. §§ 2255(h), 2244(b)(3)(A). 1 Indeed, this Court recently held that Davis
announced a new rule of constitutional law retroactively applicable to cases on
collateral review by the Supreme Court. In re Hammoud,
2019 WL 3296800, at
*4; see also In re Cannon, ___ F.3d ____,
2019 WL 3334766, at *3 (11th Cir. July
25, 2019). 2
AFFIRMED.
1
While we make no statement as to the success of a future § 2255 motion, we note that
Morton has only one year from the date Davis was issued to file another § 2255 motion on that
basis. See 28 U.S.C. § 2255(f)(3).
2
Because the Supreme Court issued its decision in Davis, there is no need to stay the
proceedings. Morton’s motion to stay is therefore DENIED AS MOOT.
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