Javier Reyes v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2463
JAVIER REYES,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-5528 — Harry D. Leinenweber, Judge.
____________________
ARGUED NOVEMBER 9, 2020 — DECIDED MAY 24, 2021
____________________
Before SYKES, Chief Judge, and HAMILTON and BRENNAN,
Circuit Judges.
HAMILTON, Circuit Judge. Petitioner Javier Reyes was con-
victed in 2005 of several federal crimes stemming from the
armed robbery of a credit union. One conviction was for bran-
dishing a firearm in furtherance of a “crime of violence.” He
was also sentenced for being a career offender because his
criminal history included multiple convictions for “crimes of
violence.” Since Reyes was convicted, the Supreme Court has
2 No. 19-2463
issued a series of decisions interpreting statutory definitions
of “crime of violence,” holding that so-called residual clauses
in several statutes are unconstitutionally vague. In 2016,
Reyes brought this second collateral attack under 28 U.S.C.
§ 2255, asserting that this emerging body of case law had ren-
dered his conviction and sentence unconstitutional. As the
case law in this area developed, Reyes sought to supplement
and modify his § 2255 motion to take advantage of new deci-
sions.
The district court denied relief but issued a certificate of
appealability on whether the conviction for brandishing a
firearm violated the Constitution because the statute of con-
viction incorporates a problematic definition. The threshold
inquiry on this question is which crime or crimes the jury was
instructed to consider as a “crime of violence” upon which the
brandishing conviction could be based. Because the jury was
properly instructed, we affirm. The government would have
us affirm on procedural grounds, but we decline to do so.
I. Factual and Procedural Background
A. Events and Law Before 2015
Javier Reyes worked as a loan officer at a credit union in
West Chicago, Illinois. In August 2004, he was fired. He soon
hatched a plan to rob the credit union by relying on inside
information he had gleaned as an employee. He pitched the
plot to four others, who agreed to commit the robbery while
Reyes was on vacation in another state, providing him with
an alibi.
Reyes’ co-conspirators robbed the credit union on the
morning of August 23, 2004. During the robbery, one of the
robbers brandished a handgun that Reyes had provided.
No. 19-2463 3
After the robbery, Reyes’ co-conspirators decided to cut him
out, refusing to share any proceeds with him.
This proverbial falling out among thieves paled in com-
parison to the federal prosecution that followed. Reyes’ four
co-defendants pled guilty, and three of the four testified
against him at trial. Reyes was convicted of three federal
crimes: conspiracy to commit robbery in violation of 18 U.S.C.
§ 371 (Count I); bank robbery in violation of 18 U.S.C.
§ 2113(a) (Count II); and brandishing a firearm in furtherance
of a crime of violence, the robbery, in violation of 18 U.S.C.
§ 924(c)(1)(A) (Count III).
At sentencing, the district court applied the Sentencing
Guidelines’ career offender enhancement in U.S.S.G. § 4B1.1
(2005). This provision may apply if, among other things, the
offender has a history of convictions for “crimes of violence”
and is convicted of a new “crime of violence.” Id.; see also
U.S.S.G. § 4B1.2 (2005) (defining “crime of violence”). This en-
hancement applied to Reyes because, the sentencing court as-
sumed, his prior convictions for burglary, voluntary man-
slaughter, and attempted murder under Illinois state law
qualified as crimes of violence. Reyes appealed on grounds
not at issue here, and we affirmed his convictions. United
States v. Reyes, 542 F.3d 588 (7th Cir. 2008). Reyes filed a first
§ 2255 motion in 2009 alleging ineffective assistance of coun-
sel. The district court denied relief, and we denied a certificate
of appealability.
B. Legal and Procedural Developments in 2015 and Later
Reyes filed this second § 2255 motion in the wake of the
Supreme Court’s decision in Johnson v. United States, 576 U.S.
591 (2015). Johnson examined the definition of “violent felony”
4 No. 19-2463
in 18 U.S.C. § 924(e)(2)(B). Under this statute, a felony is “vio-
lent” if it “has as an element the use, attempted use, or threat-
ened use of physical force against the person of another” or is
one of several enumerated offenses. The statutory definition
also includes a so-called “residual clause,” which defines as
violent any crime that “otherwise involves conduct that pre-
sents a serious potential risk of physical injury to another.”
Johnson, 576 U.S. at 594, quoting 18 U.S.C. § 924(e)(2)(B)(ii).
The Court held that the residual clause is so vague that it vio-
lates defendants’ Fifth Amendment right to due process,
though the other definitions of violent felonies, using ele-
ments and enumerated crimes, stood intact. Id. at 606.
Reyes, represented at the time by counsel, filed this second
§ 2255 motion arguing that Johnson should apply to the Sen-
tencing Guidelines. The career offender enhancement that
was applied to Reyes at his sentencing included an identical
residual clause in its definition of “crime of violence.”
U.S.S.G. § 4B1.2(a)(2) (2005); see generally 83 Fed. Reg. 65400,
65407–65412 (Dec. 20, 2018) (explaining evolution of defini-
tion before and after Johnson and further proposed guideline
amendments). Reyes reasoned that his prior convictions for
various Illinois felonies would not qualify as crimes of vio-
lence without the vague residual clause, so that the career of-
fender enhancement should not have applied. We found that
Reyes’ proposed extension of Johnson met the minimum crite-
ria for a second or successive collateral attack in 28 U.S.C.
§ 2255(h)(2). We granted his application to file his successive
§ 2255 motion and authorized the district court to consider his
claims.
A month later, Reyes filed a pro se “abridged motion to
vacate, set aside, or correct” his original conviction pursuant
No. 19-2463 5
to § 2255 with the appellate panel. This proposed amendment
sought to add a new basis for relief: that Reyes’ conviction for
brandishing a firearm during a crime of violence was un-
sound because the brandishing statute, 18 U.S.C. § 924(c), also
incorporates the same residual clause in defining which of-
fenses count as predicate “crimes of violence.” § 924(c)(3)(B).
Reyes argued that neither bank robbery nor conspiracy can
qualify as a crime of violence if the residual clause falls, so
that his conviction based on his colleague’s brandishing of a
firearm during a “crime of violence” was unconstitutional. We
concluded that, once we had ruled on whether to accept an
application for a successive § 2255 motion, we did not have
jurisdiction to reconsider amendments or supplements. We
instructed Reyes to file his amendment with the district court,
which he did.
While Reyes’ motion was pending in the district court, we
extended Johnson to the Guidelines, holding in United States v.
Hurlburt, 835 F.3d 715, 725 (7th Cir. 2016) (en banc), that the
residual clause in the career offender guideline was unconsti-
tutionally vague. Soon after that, however, the Supreme Court
disagreed, abrogating Hurlburt and finding that the Guide-
lines are merely advisory and therefore cannot be unconstitu-
tionally vague. Beckles v. United States, 580 U.S. —, 137 S. Ct.
886, 892 n.2 (2017). Counsel for Reyes then withdrew.
Six months after Beckles was decided, Reyes, now acting
pro se, moved pursuant to Rule 15 to amend his § 2255 motion
to return to his claims that under Johnson and its progeny, nei-
ther bank robbery nor conspiracy counts as a crime of vio-
lence, so that his brandishing conviction was unconstitu-
tional. The district court granted these motions to amend and
ordered the government to respond to Reyes’ filings. The
6 No. 19-2463
Supreme Court then decided another “crime of violence”
case, Sessions v. Dimaya, 584 U.S. —, 138 S. Ct. 1204 (2018),
which extended Johnson’s logic to another statutory use of a
functionally identical residual clause in the Immigration and
Naturalization Act. See 8 U.S.C. § 1101(a)(43)(F), referring to
18 U.S.C. § 16.
On May 28, 2019, the district court denied Reyes’ § 2255
motions. The court acknowledged that Reyes had raised two
distinct theories, but it squarely discussed only the sentencing
issue in its opinion, holding that Reyes’ motion was fore-
closed by Beckles. Less than a month later, the Supreme Court
held that Johnson applied to the residual clause in the defini-
tion of “crime of violence” in § 924(c)(3) as well. United States
v. Davis, 588 U.S. —, 139 S. Ct. 2319, 2336 (2019). Before the
district court closed the case, Reyes filed multiple supple-
ments regarding Davis arguing that his brandishing convic-
tion cannot stand. The district court concluded that Davis did
not apply. Reyes moved the district court to reconsider, claim-
ing that the jury instructions given in his trial contravened Da-
vis. The district court then issued a certificate of appealability
on the Davis issue, including the allegedly erroneous jury in-
structions.
II. Legal Standard
A federal prisoner “may move the court which imposed
the sentence to vacate, set aside, or correct the sentence”
“upon the ground that the sentence was imposed in violation
of the Constitution or laws of the United States.” 28 U.S.C.
§ 2255(a). When reviewing the denial of a federal prisoner’s
§ 2255 motion, we review the district court’s legal conclusions
de novo. Martin v. United States, 789 F.3d 703, 705 (7th Cir.
2015). As a general rule, moreover, if a jury is instructed on
No. 19-2463 7
alternative theories of guilt and returns a general verdict that
may have relied on a legally invalid theory, the verdict must
be set aside upon a timely challenge. Sorich v. United States,
709 F.3d 670, 673 (7th Cir. 2013), citing Yates v. United States,
354 U.S. 298 (1957).
III. Analysis
Notwithstanding this case’s convoluted procedural his-
tory, the question on the merits is straightforward. Reyes now
asserts only that his conviction for brandishing was based on
conspiracy being a crime of violence, but that conspiracy is
not a crime of violence within the meaning of 18 U.S.C.
§ 924(c). Reyes’ entry point for that claim is his contention that
the jury instructions explaining a co-conspirator’s vicarious
liability incorrectly instructed the jury to convict him of the
§ 924(c) charge if the brandishing happened in furtherance of
the robbery (which is a crime of violence) or in furtherance of
the substantive crime of conspiracy. Because conspiracy is not
a crime of violence, he reasons, a general verdict rendered
pursuant to these alternative options would run afoul of Yates
v. United States. (The indictment itself properly tied the
§ 924(c) brandishing charge to only the robbery charge, not
the conspiracy charge, and Reyes does not contest the point.)
The government offers two reasons why dismissal was
proper. First, as a matter of procedure, the government argues
that Reyes needed but did not obtain appellate permission to
amend his § 2255 motion after we allowed the application to
proceed under 28 U.S.C. § 2255(h). Second, on the merits, the
government argues that Reyes is wrong about the jury in-
structions and that in fact they clearly distinguished between
conspiracy and § 924(c) and tied § 924(c) liability to only the
robbery. The government’s merits argument carries the day,
8 No. 19-2463
so we address that first. We conclude by explaining why we
see no fatal procedural defect, and in doing so we hope to dis-
pel some confusion for parties and district courts entertaining
§ 2255 motions in a rapidly shifting legal environment.
A. Merits
We affirm on the merits. Reyes claims that the jury instruc-
tions were unduly confusing because they conflated vicarious
liability under Pinkerton v. United States, 328 U.S. 640 (1946),
when co-conspirators commit additional crimes in further-
ance of the conspiracy, and § 924(c)’s element requiring that
the firearm be brandished in furtherance of a “crime of vio-
lence.” According to Reyes, the jury was instructed to con-
sider conspiracy as a crime of violence that could serve as a
foundation for the § 924(c) brandishing charge. We read the
instructions differently. The district court properly and sepa-
rately instructed the jury on both Pinkerton and § 924(c).
Given the twisting path that “crime of violence” doctrine
has taken over the past few years, it is best to recount where
things stand now before addressing the specific jury instruc-
tions in detail. The government concedes that criminal con-
spiracy is not a crime of violence under the nearly identical
definition of “crime of violence” in the Guidelines. See D’An-
toni v. United States, 916 F.3d 658, 665 (7th Cir. 2019). And
Reyes now concedes on appeal that bank robbery committed
in violation of § 2113(a) is a crime of violence under § 924(c)
even after Davis because bank robbery meets the elements
clause in the statutory definition. See United States v. Williams,
864 F.3d 826, 829–30 (7th Cir. 2017). Thus, if the jury was in-
structed that the robbery was the sole predicate “crime of vi-
olence” that could trigger liability for the brandishing offense,
then there was no error. On the other hand, if the jury
No. 19-2463 9
instructions permitted the jury to treat conspiracy as the crime
of violence supporting the § 924(c) brandishing charge, then
the conviction could be legally vulnerable and we would need
to consider next whether Reyes was prejudiced by any con-
fusing or overbroad instructions.
Reyes’ attempt to read the Pinkerton instruction as a
§ 924(c) instruction founders on its text. The judge’s instruc-
tion paralleled this circuit’s then-operative pattern jury in-
structions for conspiracy. See Seventh Circuit Pattern Crimi-
nal Federal Jury Instructions § 5.09, at 73 (1998). Though our
pattern instructions are not “holy writ,” they do “reflect the
collective experience of the judges and lawyers who crafted
them and can serve as a helpful starting point.” United States
v. Edwards, 869 F.3d 490, 500, 497 (7th Cir. 2017). Reyes does
not provide any reason to disregard this collective experience,
even though this pattern instruction explicitly referred to the
interaction between Pinkerton and § 924(c). Seventh Circuit
Pattern Criminal Federal Jury Instructions § 5.09 at 73 (1998),
summarizing United States v. Chairez, 33 F.3d 823, 826–28 (7th
Cir. 1994).
In any event, the Pinkerton instruction here allowed the
jury to convict Reyes for robbery and brandishing based on
his co-conspirator’s liability for those crimes. That is, if the
jury found beyond a reasonable doubt that the co-conspira-
tors committed crimes that were foreseeable and in further-
ance of their conspiracy with Reyes, then they should convict
Reyes for those other crimes. This particular instruction ad-
dressed only the latter prong in detail:
A conspirator is responsible for offenses com-
mitted by his fellow conspirators if he was a
member of the conspiracy when the offense was
10 No. 19-2463
committed and if the offense was committed in
furtherance of and as a foreseeable consequence
of the conspiracy.
Therefore, if you find Mr. Reyes guilty of the
conspiracy charged in Count One and if you
find beyond a reasonable doubt that while he
was a member of the conspiracy, his fellow con-
spirators committed the offenses in Counts Two
and Three [robbery and brandishing, respec-
tively] in furtherance of and as a foreseeable
consequence of that conspiracy, then you
should find him guilty of Counts Two and
Three.
That is an accurate description of how Reyes could be found
vicariously liable for his co-conspirators’ actions under Pink-
erton. Critically, the instruction did not treat Reyes’ conspir-
acy conviction as a predicate for his colleagues’ brandishing of
the firearm. The same is obviously true of Count Two, the rob-
bery count, which was treated identically to brandishing in
this instruction. That the brandishing (and robbery) occurred
in furtherance of the conspiracy was a necessary but not suf-
ficient condition for Reyes’ conviction under § 924(c). This in-
struction explained that the government still had to prove be-
yond a reasonable doubt that Reyes’ colleague “committed”
the Count Three offense, that is, that he brandished the gun in
furtherance of a crime of violence.
The instructions set forth the substantive elements for
§ 924(c) elsewhere, instructing the jury to convict Reyes under
§ 924(c) only if one of the robbers brandished “a firearm dur-
ing and in relation to the robbery.” (Emphasis added.) These in-
structions were not erroneous. They permitted conviction for
No. 19-2463 11
§ 924(c) only if the gun was brandished in furtherance of the
robbery itself, not merely in furtherance of a conspiracy.
Reyes says that the district court should have combined
the Pinkerton and § 924(c) instruction—that the jury should
have been instructed as to the elements of two federal crimes
(robbery and brandishing) and conspiracy liability in one
breath. Or maybe that the district court should have laid out
a multi-prong decision tree as a separate instruction. But the
fact that Reyes can come up with another way of instructing
the jury does not mean that the trial court was required to do
so. Putting aside the question of whether Reyes’ new pro-
posals would actually have been clearer, the district court had
ample discretion to describe separate questions correctly in
distinct instructions. See United States v. Dickerson, 705 F.3d
683, 688 (7th Cir. 2013) (direct appeal).
Even if the language in the Pinkerton instruction were con-
fusing, we would still affirm because any error would have
been harmless. See id. at 691. Reyes was convicted of conspir-
acy, robbery, and brandishing. The trial evidence showed that
he provided the gun and that it was in fact brandished during
the robbery. No rational juror could have concluded that the
gun was brandished in furtherance of only the conspirators’
agreement to commit a robbery, but not in furtherance of the
robbery itself, during which the gun was actually brandished.
See id.To counter this logic, Reyes argues that he was prejudiced
because the evidence at trial of his continued participation in
the conspiracy was flimsy and the use of the firearm was not
foreseeable to him because he told the robbers he thought it
was unnecessary. There is no logical connection between that
prejudice theory and the alleged Yates instruction error, and
12 No. 19-2463
in fact they rest in considerable tension. According to Reyes’
reading of the jury instructions, the jury was specifically
asked to determine the exact questions that his prejudice the-
ory claims went unaddressed. And, in any event, this separate
sufficiency-of-the-evidence argument does not rely on Johnson
and its progeny and could and should have been raised on
direct appeal. See Stanley v. United States, 827 F.3d 562, 565
(7th Cir. 2016).
B. Procedural Arguments
The government has asked us to affirm based on a sup-
posed procedural error that might call into question our juris-
diction. We decline to do so because we see no error. That
said, the government is correct that the case was procedurally
messy, and not just because of Reyes’ attempt at hybrid rep-
resentation and numerous pro se filings. Both parties and the
district court also had to contend with an emerging body of
law whose direction was not always easy to predict. See, e.g.,
Beckles, 137 S. Ct. at 892 n.2. The district court did not clearly
address each of Reyes’ arguments in disposing of his § 2255
motion, and the government ironically failed to raise this ju-
risdictional challenge before the district court. Because of the
convoluted path this case has taken, and fact that our subject
matter jurisdiction is potentially at stake, we will address the
government’s theory.
The government argues that the district court lacked juris-
diction over Reyes’ § 924(c) claim because he failed to obtain
authorization from a panel of this court to bring a motion to
amend his successive § 2255 motion. The textual hooks for
this argument are § 2255(h), which requires movants to obtain
appellate certification for any “second or successive motion,”
and the general statutory framework that sets a higher bar for
No. 19-2463 13
successive § 2255 motions. Cf. Johnson v. United States, 196
F.3d 802, 805 (7th Cir. 1999). In contrast, when reviewing
Reyes’ motion to add a new claim to his cleared § 2255 mo-
tion, we considered this a motion to amend, not a brand-new
successive § 2255 motion.
The government offers no persuasive reason to depart
from our practice of encouraging successive § 2255 movants
who have already cleared appellate screening to bring any
motions to amend before the district courts reviewing their
respective applications. In this case, for example, we in-
structed: “To the extent Reyes wishes to amend or supple-
ment his pending § 2255 motion, he should direct such a re-
quest to the district court.”
Substantial precedent supports our instructions in this
case. See, e.g., United States v. MacDonald, 641 F.3d 596, 615–
17 (4th Cir. 2011) (remanding with instructions to consider
claim not raised in successive application but added pursuant
to Fed. R. Civ. P. 15); see also Fuller v. United States, 815 F.3d
112, 113 n.2 (2d Cir. 2016), citing Ching v. United States, 298
F.3d 174, 177 (2d Cir. 2002) (acknowledging petitioners’ abil-
ity to move to amend pursuant to Rule 15 and encouraging
that tack where new § 2255 motion is filed before adjudication
of authorized § 2255 motion is complete); Mayle v. Felix, 545
U.S. 644, 655 (2005) (discussing intersection of § 2242, the Ha-
beas Corpus Rules, and Fed. R. Civ. P. 81, and concluding that
Rule 15 governs motions to amend in proceedings under
§ 2254).
This approach reflects the best reading of the statutory text
and the framework for second and successive motions.
Though the screening requirement is found in § 2255, the sub-
stantive and procedural requirements for our review are
14 No. 19-2463
found in § 2244, which requires: “Before a second or succes-
sive application … is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”
§ 2244(b)(3)(A). An appellate panel’s jurisdiction over such
screens is limited, and it cannot entertain certain post-screen-
ing motions. See § 2244(b)(3)(E).
By statutory design, our initial review of such an applica-
tion must be quick and is unlikely to be deep. Rather than
conducting a line-by-line review, we look to see if it “con-
tain[s]” something—perhaps just one claim—worth looking
into, and we do not revisit our prior decisions. §§ 2255(h);
2244(b)(3)(E). Briefing is limited, and we must review these
orders quickly. See 7th Cir. R. 22.2(c); § 2244(b)(3)(D). Though
our screening orders authorizing a successive motion may
opine on the merits of various issues, neither the parties nor
the district court should read too much into pronouncements
that are not subject to review and do not conclusively resolve
the case. See Bennett v. United States, 119 F.3d 468, 469–70 (7th
Cir. 1997). As our colleagues in the Fourth Circuit have ob-
served, after an applicant “has made a prima facie showing
that his application satisfies § 2244(b)[]’s requirements,” the
screening panel “may not plod along any further,” and the
merits determination is up to the district court notwithstand-
ing the screening panel’s thoughts on the case. In re Stevens,
956 F.3d 229, 233–34 (4th Cir. 2020), citing among other cases
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
In contrast, district courts do the deeper dive. They must
review each of the specific claims presented in approved ap-
plications, even where many of those distinct claims may lack
merit or were obviously forfeited. Upon receipt of an
No. 19-2463 15
authorized application, the “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 appli-
cant shows that the claim satisfies the requirements of this
section.” § 2244(b)(4). Nothing in this statutory structure,
then, prevents a forfeited claim from landing on a district
judge’s desk so long as the application as a whole is accepted.
On the contrary, the statute implicitly encourages that result.
Neither § 2244 nor § 2255 expressly limits a district court’s
power to permit amendment of a successive motion once the
appellate court has screened the application and permitted its
filing in the district court. If anything, the various allusions to
amending an extant application sprinkled throughout the
broader statute suggest that a subsequent motion to amend a
standard successive § 2255 motion should not be subject to the
screening requirement. See 28 U.S.C. § 2242 (allowing that an
application “may be amended or supplemented as provided
in the rules of procedure applicable to civil actions”). The cap-
ital habeas statute, by comparison, does limit an applicant’s
right to amend. See 28 U.S.C. § 2266(b)(3)(B) (movant chal-
lenging a death sentence may not amend original motion “ex-
cept on the grounds specified in § 2244(b)”).
Thus, § 2244, and by extension § 2255, require only that
successive applications, and not amendments or even neces-
sarily individual claims, be screened by an appellate panel.
The purpose of the screen is “to limit multiple efforts to obtain
collateral review.” Johnson, 196 F.3d at 805. Once one claim
has cleared that high hurdle, we do not dissect the application
further.
The statute’s flexibility in this procedural niche has practi-
cal advantages. Allowing petitioners and district courts
16 No. 19-2463
flexibility in amending successive § 2255 motions recognizes
that unforeseen issues may arise and promotes judicial econ-
omy in resolving them without having to consult appellate
panels that must turn screening questions around quickly and
have circumscribed jurisdiction over such requests. We see no
reason to break with our current practice and develop an elab-
orate ad hoc decision tree, unmoored from the statutory text,
to determine which (frequently pro se) supplements and
amendments need to be screened and which are subject to the
normal Federal Rules of Civil Procedure that otherwise gov-
ern proceedings under § 2255. To the extent that § 2244’s ex-
acting standards might not prevent prisoners from inundat-
ing district courts with meritless motions to amend, courts
can and should use their discretion under Rule 15 to prevent
abusive or needlessly time-consuming tactics. See generally
Fed. R. Civ. P. 1 (just, speedy, and inexpensive determina-
tions).
To be sure, the government is correct that district courts
entertaining successive § 2255 motions may not review cer-
tain claims even if they are meritorious. Yet that point only
restates 28 U.S.C. § 2244(a) and (b)(1), (2), and (4), which in
turn echo § 2255(h). Likewise, as we have said for years, dis-
trict courts must be wary of movants who attempt to reframe
a successive § 2255 motion as something else to circumvent
the screening requirement. E.g. Adams v. United States, 911
F.3d 397, 403–04; 408 (7th Cir. 2018) (motion for relief from
final judgment pursuant to Rule 60 was actually a successive
§ 2255 motion); Melton v. United States, 359 F.3d 855, 857 (7th
Cir. 2004) (“Call it a motion for a new trial, arrest of judgment,
mandamus, prohibition, coram nobis, coram vobis, audita
querela, certiorari, capias, habeas corpus, ejectment, quare
No. 19-2463 17
impedit, bill of review, writ of error, or an application for a
Get-Out-of-Jail Card; the name makes no difference.”).
These straightforward applications of the screening re-
quirement and limitations on successive § 2255 motions are
not relevant to this case. Reyes could not have brought his
Johnson-based claims until after that case had been decided,
and his successive motion was in fact screened. Perhaps, as
the government implies, our suggestion that Reyes file his
amendment in the district court could (with some imagina-
tion) have been interpreted as requiring district courts to con-
sider the merits of any amendment to a second or successive
§ 2255 motion. But we did not say that, and such a require-
ment would run counter to the statute’s text and structure and
to the Federal Rules of Civil Procedure. Because Reyes’
§ 924(c) theory was unavailable before Johnson and Davis, it
was not foreclosed by § 2244 or § 2255, and the district court
did not err in entertaining it. See In re Hammoud, 931 F.3d 1032,
1041 (11th Cir. 2019) (authorizing a post-Davis claim regard-
ing § 924(c)).
The government also argues that Reyes waited too long to
flag the jury-instructions aspect of his statutory “crime of vi-
olence” claim. The main thrust of this argument, that the sup-
posed fault in the jury instructions had not been raised until
it was presented in Reyes’ final motion for reconsideration, is
belied by the fact that Reyes had been complaining about the
jury instructions for years and the government knew it. See
Dkt. 28 at 13–14 (government’s response to Reyes’ motion ac-
knowledging that he based his Johnson theory in part on the
instructions). Given that Reyes’ claim fails on the merits, we
see no need to delve any further into the district court record
to determine whether Reyes’ pro se supplements regarding
18 No. 19-2463
Davis properly preserved this issue, nor do we see any reason
to think the veteran district judge abused his discretion in
considering the merits of Reyes’ supplements.
The judgment of the district court is AFFIRMED.