In re Cannon, 931 F.3d 1236

Background

Cannon participated in armed robberies of drug dealers' homes in 1997 and was indicted on multiple overlapping counts: drug conspiracies, Hobbs Act robberies, carjackings, possession of firearms by a felon, and § 924(c) / § 924(o) counts charging use/possession of firearms in relation to multiple predicate offenses.
A jury convicted Cannon on all counts; the district court granted acquittal on two Hobbs Act counts but sentenced him to 660 months total, including multiple § 924(c)/(o) terms. The convictions and sentence were affirmed on direct appeal.
Cannon filed an initial § 2255 motion (denied) and multiple prior successive § 2255 applications challenging ACCA and § 924(c) predicates (denied). Earlier successive attempts relied on Johnson and Dimaya theories and were rejected.
Cannon’s current successive application invokes United States v. Davis (holding § 924(c)(3)(B)’s residual clause void for vagueness) to challenge his § 924(c) / § 924(o) convictions because one predicate—conspiracy to commit Hobbs Act robbery—might have relied on the now-invalid residual clause.
The Eleventh Circuit found Cannon failed to make a prima facie showing as to Counts 6 and 14 (§ 924(c) convictions) because those counts listed only predicates that qualify under the elements clause (drug offenses, substantive Hobbs Act robbery, carjacking).
The Court granted authorization as to Count 3 (§ 924(o) conspiracy) because that count referenced multiple predicates (including conspiracy to commit Hobbs Act robbery) and, on the limited record, it was unclear which predicate(s) the jury relied upon—so Cannon made a prima facie showing under § 2255(h)(2).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Davis supplies a new, retroactive rule under § 2255(h)(2) to permit a successive § 2255 attack on § 924(c)/(o) convictions	Cannon: Davis voids § 924(c)(3)(B); his § 924 convictions may have rested on conspiracy-to-commit-Hobbs predicate now invalid under Davis	Govt: Many predicates charged qualify under the elements clause; prior successive challenges (Johnson/Dimaya) do not control; some claims are barred by prior denials	Court: Davis is a new, retroactive rule; Cannon may bring a Davis-based claim and is not barred by earlier Baptiste rulings when the claim is distinct (Davis vs. Johnson/Dimaya)
Whether Counts 6 and 14 implicate § 924(c)(3)(B) residual clause post-Davis	Cannon: Indictment alleged multiple predicates; jury’s general verdict could have rested on conspiracy predicate	Govt: Counts 6 and 14 listed only predicates (drug offenses, substantive Hobbs robbery, carjacking) that qualify under the elements clause	Court: Denied authorization for Counts 6 and 14—no prima facie Davis issue because their predicates are valid without the residual clause
Whether Count 3 (§ 924(o)) implicates § 924(c)(3)(B) and warrants authorization to file successive § 2255	Cannon: Count 3 referenced multiple distinct predicates including conspiracy to commit Hobbs Act robbery; jury verdict was general so predicate used is unclear	Govt: Many other valid predicates charged could have supported the § 924(o) conviction	Court: Granted authorization for Count 3—prima facie showing met because it is unclear which predicate the jury relied on and conspiracy-to-commit-Hobbs may implicate Davis
Whether an independent duplicitous-indictment / Alleyne-based challenge is a new, retroactive constitutional rule	Cannon: Indictment duplicitous because multiple predicates charged in single § 924 count	Govt: Alleyne is not retroactive; prior decisions deny retroactivity; such a claim was previously raised and rejected	Court: Denied as not constituting a new retroactive rule and barred by prior successive-application jurisprudence

Key Cases Cited

United States v. Davis, 139 S. Ct. 2319 (2019) (held § 924(c)(3)(B) residual clause unconstitutionally vague)
Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (struck down residual-clause language in immigration statute on vagueness grounds)
Johnson v. United States, 135 S. Ct. 2551 (2015) (held ACCA residual clause void for vagueness)
In re Gomez, 830 F.3d 1225 (11th Cir. 2016) (prima facie standard for successive § 2255 when § 924(c) count lists multiple predicates)
In re Hammoud, 931 F.3d 1032 (11th Cir. 2019) (Davis announced a new, retroactive rule applicable on collateral review)
In re Baptiste, 828 F.3d 1337 (11th Cir. 2016) (repeat successive § 2255 claims previously raised are barred)
In re Saint Fleur, 824 F.3d 1337 (11th Cir. 2016) (Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A))
In re Smith, 829 F.3d 1276 (11th Cir. 2016) (carjacking under § 2119 qualifies under § 924(c)(3)(A))
Beeman v. United States, 871 F.3d 1215 (11th Cir. 2017) (movant bears burden to prove entitlement to § 2255 relief)