In re Leonard

BY THE PANEL:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Larry Leonard has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence, 28 U.S.C. § 2255. Such authorization may be granted only if this Court certifies that the second or successive motion contains a claim involving:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” Id. § 2244(b)(3)(C); see also Jordan v. Sec’y, Dep’t of Corrs., 485 F.3d 1351, 1357-58 (11th Cir. 2007). (explaining that this Court’s determination that an applicant has made a prima fade showing that the statutory criteria have been met is simply a threshold determination).

Leonard was convicted, in 2008, of possession of a firearm by a convicted felon, and was sentenced as an armed career criminal, pursuant to the ACCA. At sentencing, Leonard asserted that the government appeared to rely on four prior convictions in support of the ACCA enhancement, and argued that his two convictions for Florida burglary and two convictions for possession with intent to sell cocaine were not ACCA predicate felonies. The district court determined that Leonard’s convictions for burglary and- possession with intent to sell cocaine were ACCA predicate felonies, but did not indicate which enhancement clause applied to those convictions. Leonard’s Presentence Investigation Report (“PSI”) also reflects a conviction for aggravated assault on a police officer.

In his present application, Leonard indicates that he wishes to raise one claim in a second or successive § 2255 motion. He asserts that his claim relies upon a new rule of constitutional law. He contends that he is being held unlawfully because the district court enhanced his sentence based on an improper application of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Leonard relies upon Johnson v. United States, 576 U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)—in which the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague—as providing the new rule of constitutional law supporting his claims. Specifically, he argues that the district court relied on four prior convictions when it enhanced his sentence under the ACCA, two of which qualified as predicate offenses because they were crimes of violence under the now defunct residual clause.

Earlier this year, Leonard filed a nearly identical successive application, which we denied. See In re Leonard (11th Cir. May 24, 2016) (unpublished). In doing so, we determined that: (1) Leonard was correct in asserting that the district court relied on the residual clause in determining that he was an armed career criminal, because it had relied on his two prior Florida burglary convictions as ACCA predicate offenses; but (2) he nonetheless still qualified for an enhanced sentence based on his prior conviction for aggravated assault, which we have held is an ACCA-predicate offense under that statute’s elements clause. Id. We noted that Leonard’s aggravated assault conviction, combined with his two prior serious drug offense convictions supported his sentence under the ACCA, and denied his application. Id.

The ACCA defines the term “violent felony” as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the “elements clause,” while the second prong contains the “enumerated crimes” and, finally, what is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012).

On June 26, 2015, the Supreme Court in Johnson held that the residual clause .of the ACCA is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 576 U.S. at —, 135 S.Ct. at 2557-58, 2563. The Supreme Court clarified that, in holding that the residual clause is void, it did not call into question the application of the elements clause and the enumerated crimes of the ACCA’s definition of a violent felony. Id. at -, 135 S.Ct. at 2563.

On April 18, 2016, the Supreme Court held in Welch v. United States, 578 U.S. —, 136 S.Ct. 1257, —, 194 L.Ed. 2d 387 (2016), that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch, 578 U.S. at —, 136 S.Ct. at 1264-65. The Court explained that, by striking down the ACCA’s residual clause as void for vagueness, Johnson changed the ACCA’s substantive reach and altered “the range of conduct or the class of persons that the [Act] punishes.” Id. at-, 136 S.Ct. at 1265 (brackets in original) (citation omitted). Applying the retroactivity framework set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, the Court further stated that Johnson was not a procedural decision because it “had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the [ACCAj.” Id. Accordingly, the Court ruled that “Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on collateral review.” Id.

In light of the Supreme Court’s holdings in Johnson and Welch, federal prisoners who can make a prima facie showing that they previously were sentenced, at least in part, in reliance on the ACCA’s now-voided residual clause are entitled to file a second or successive § 2255 motion in the district court. See In re Robinson, 822 F.3d 1196, manuscript op. at 2 (11th Cir. Apr. 19, 2016) (holding that In re Franks, 815 F.3d 1281 (11th Cir. 2016), which had held that Johnson claims brought by ACCA offenders cannot satisfy the statutory requirements of § 2255(h)(2), is no longer good law). However, merely alleging a basis that meets § 2255(h)’s requirements in the abstract only “represents the minimum showing” necessary to file a successive § 2255 motion because, under § 2244(b)(3)(C), the applicant also must make “a prima facie showing that the application satisfies the requirements of this subsection.” In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) (granting a state death-row inmate’s successive application because he had proffered detailed evidence, in satisfaction of § 2244(b)(3)(C), that showed “a reasonable likelihood that [he] is mentally retarded” to support his proposed Atkins claim). Accordingly, it appears that it is not enough for a federal prisoner to simply identify Johnson as the basis for the claim or claims he seeks to raise in a second or successive § 2255 motion, but also must show that he falls within the scope of the new substantive rule announced in Johnson. See, e.g., id.; 28 U.S.C. § 2244(b)(3)(C).

We recently granted an application for leave to file a second or successive motion to vacate where both the record and the state of the law at the time of the applicant’s sentencing suggested that his sentence may have been enhanced under the residual clause. In re Adams, 825 F.3d 1283, 1285-86 (11th Cir. 2016). In a case decided on the same day as Adams, we denied an application where binding precedent directed that the applicant’s relevant predicate offenses fell within the ACCA’s elements clause. In re Hires, 825 F.3d 1297, 1301-03 (11th Cir. 2016). Thereafter, we relied on Adams and Hires to clarify the standard that applicants seeking relief under Johnson must meet in order to make the requisite prima facie showing. In what we described as the “clear-unclear test,” we stated that:

We may only deny the application if it is c|ear that the motion will not contain a Johnson claim. This is so when:

(1) the sentencing court record demonstrates that the sentencing court specifically identified three prior convictions as qualifying as ACCA predicates under the elements or enumerated crimes clauses, or based on the “serious drug offense” provision of the ACCA; and/or

(2) under binding precedent, it is clear that the prior convictions the sentencing court identified categorically qualify as ACCA predicates under the elements or enumerated crimes clauses or, alternatively, the ACCA’s “serious drug offense” provision.

In re Rogers, 825 F.3d 1335, 1338-39 (11th Cir. 2016). In further detailing this standard, we enunciated that the “binding precedent” that we may rely on is the “current” and “on-point” binding precedent. Id. at 5-7.

We explained that, if an applicant’s claim “implicates” Johnson, meaning that the application does not fall within either of the given categories, courts “must” apply Descamps v. United States, 570 U.S. —, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and other binding Supreme Court precedent to determine whether a prior conviction would still support an ACCA-enhanced sentence. Id. at 4-5. We acknowledged that the Descamps divisibility analysis is “unsettled” as to many statutes, and, thus, directed that, if it is still unclear from binding precedent that the state law at issue is divisible under Descamps, then the applicant has made a prima facie showing that his application contains a Johnson claim. Id. We then reiterated that applications should be granted “in situations where neither the record nor current binding precedent makes undeniably clear that, absent the residual clause, an enhanced sentence validly was entered.” Id. at 5. We emphasized that the circumstances in which it will deny applications are “limited” due to the “gatekeeping” function mandated at this stage of review. Id. at 7. Utilizing the “clear-unclear test,” we held that Rogers’s prior Florida convictions for aggravated assault and aggravated battery “categorically qualifie[d]” as violent felonies under the elements clause, citing Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328, 1338, 1341 (11th Cir. 2013), abrogated on other grounds by Johnson, 576 U.S.-, 135 S.Ct. 2551. Id. at 8-9. We concluded that, “because binding precedent clearly classifies as elements clause offenses the convictions Mr. Rogers’s sentencing court relied upon as ACCA predicates, his application does not make out a prima facie case under Johnson." Id. at 9.

Here, Leonard does not fit into either of the two categories, as described in Rogers, which would lead to the denial of his Johnson-based successive application. See Rogers, 825 F.3d at 1338-39. First, the record shows that the district court relied on Leonard’s two Florida burglary convictions and two. convictions for possession with intent to distribute cocaine in determining that he qualified for an ACCA-enhanced sentence. While Johnson does not impact the use of his prior drug convictions, it is unclear from the record which clause of the ACCA the district court employed when it concluded that Leonard’s Florida burglary convictions qualified as predicate offenses. Indeed, prior to Leonard’s conviction and sentence, the Supreme Court had held that a conviction for Florida burglary was an ACCA-predicate offense under the residual clause. James v. United States, 550 U.S. 192, 212, 127 S.Ct. 1586, 1599, 167 L.Ed.2d 532 (2007), overruled on other grounds, Johnson, 576 U.S. at —, 135 S.Ct. at 2557-58. Thus, it is possible that the district court relied on the now-defunct residual clause in enhancing Leonard’s sentence. Accordingly, the record does not demonstrate “that the sentencing court specifically identified three prior convictions as qualifying as ACCA predicates under the elements or enumerated crimes clauses.” Rogers, 825 F.3d at 1338.

Second, it is not clear, under binding precedent, that the burglary convictions the district court identified and relied on categorically qualify as ACCA predicates under the elements or enumerated crimes clauses. Id. at 3-4. As previously noted, at the time Leonard was sentenced, a conviction under Florida’s burglary statute was deemed an ACCA predicate offense under the residual clause, and further, as to the elements clause, the statute contains no element of “attempted use, or threatened use of physical force against the person of another.” See James, 550 U.S. at 212, 127 S.Ct. at 1599; 18 U.S.C. § 924(e)(2)(B)(i).¹ Moreover, to qualify as an enumerated crime, “the least of the acts criminalized” under the statute must be “encompassed by the generic federal offense” of burglary. Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). However, in James, the Supreme Court noted that Florida’s burglary statute went beyond the generic the generic federal definition of burglary. James, 550 U.S. at 212, 127 S.Ct. at 1599. In United States v. Matthews, 466 F.3d 1271, 1275 (11th Cir. 2006), we agreed that Florida burglary was broader than generic burglary. And recently, in Adams, we stated that the statute “does not appear to be divisible such that it still could be violated in a way that comports with the generic definition of burglary.” Adams, 825 F.3d at 1286. Specifically, we noted that Florida’s statute does not set out the “critical place-of-entry element in the alternative—i. e., ‘a building or its curtilage’—the place-of-entry element encompasses a ‘building of any kind, either temporary or permanent, which has a roof over it, together with the curtilage thereof.’ ” Id. (quoting Fla. Stat. § 810.011(a)(1)). Accordingly, neither the record nor current binding precedent makes undeniably clear that, absent the residual clause, an enhanced sentence validly was entered, as Leonard would only have two ACCA-predicate offenses, absent thé district court’s reliance on his two Florida burglary convictions. See Rogers, manuscript op. at 5 . As such, it appears that Leonard’s sentence may have been enhanced under the residual clause.

While we previously denied Leonard’s successive application that raised nearly identical argument as made presently, that decision relied on Leonard’s surplus felony conviction for Florida aggravated assault, and under the clear/unclear Rogers test, a successive application should be denied only where it is clear that the three ACCA-predicate offenses the district identified and relied upon should be considered. Id. at 3-4. Here, based on the records available, the district court did not rely on or make findings as to Leonard’s prior aggravated assault conviction. Thus, pursuant to the clear/unclear test announced in Rogers, Leonard has made a prima facie showing that he may benefit from the rule announced in Johnson.

Finally, it is important to note that our threshold determination that an applicant has made a prima facie showing that he has met the statutory criteria of § 2255(h), thus warranting our authorization to file a second or successive § 2255 motion, does not conclusively resolve that issue. See Jordan, 485 F.3d at 1357 (involving the functionally equivalent § 2244(b)(2) successive application standard applicable to state prisoners). In Jordan, we emphasized that, once the prisoner files his authorized § 2255 motion in the district court, “the district court not only can, but must, determine for itself whether those requirements are met.” Id. Notably, the statutory language of § 2244, which is cross referenced in § 2255(h), expressly provides that “[a] district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” Id. (quoting 28 U.S.C. § 2244(b)(4)). We rejected the assertion that the district court owes “some deference to a court of appeals’ prima facie finding that the requirements have been met.” Id. at 1357. We explained that, after the district court looks at the § 2255(h) requirements de novo, “[o]ur first hard look at whether the § [2255(h) ] requirements actually have been met will come, if at all, on appeal from the district court’s decision_” Id. at 1358; see also In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013) (reiterating that our threshold conclusion in granting a successive application that a prima facie showing has been made is necessarily a “limited determination,” as the district court then must also decide “fresh” the issue of whether § 2255(h)’s criteria are met, and, if so, proceed to considering the merits of the § 2255 motion).

Accordingly, Leonard has made a prima facie showing that he has raised a claim that meets the statutory criteria. His application for leave to file a second or successive motion is hereby GRANTED;

1 . In Florida, “burglary” means "entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Fla. Stat. § 810.02.