In re: Datrist McCall
826 F.3d 1308
11th Cir.2016Background
- McCall seeks to file a second or successive §2255 petition based on Johnson.
- McCall was sentenced under the United States Sentencing Guidelines, with §4B1.2(a)(2) increasing his range for prior crimes involving risk of physical injury.
- Johnson v. United States held the §4B1.2(a)(2) language unconstitutional on vagueness grounds.
- McCall had one Alabama conviction from age 16 that pushed his guideline range to 84–105 months, with a 96-month sentence in the middle.
- Without that conviction (or the Johnson language), his range would be 37–46 months, making his actual sentence arguably excessive.
- The Eleventh Circuit denied McCall’s application for authorization to file a second §2255 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Johnson apply to §4B1.2(a)(2) for second/successive §2255 petitions? | McCall argues Johnson applies to the guidelines-driven sentence. | McCall's §2244(b)(3)(D) prima facie showing is insufficient under controlling Eleventh Circuit law. | Application denied. |
| Is Johnson-based relief reviewable under §2244(b)(3)(C) / §2255(h) given Matchett/Griffin precedents? | Certify prima facie showing for Johnson retroactivity on collateral review. | Matchett/Griffin foreclose prima facie showing as to pre-Booker guidelines. | Certification denied; petition not shown to warrant authorization. |
| Should the court consider retroactivity of Johnson on collateral review given varying circuit treatments? | Johnson retroactivity could apply on collateral review in light of other circuits. | Eleventh Circuit has limited Johnson’s reach and requires a prima facie showing. | Filed as part of concurrence; the panel treats Johnson narrowly and denies relief. |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (Supreme Court 2015) (vagueness invalidates ACCA language; retroactivity questions arise on collateral review)
- United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (held Johnson does not apply to pre-Booker mandatory guidelines)
- Welch v. United States, 136 S. Ct. 1257 (Supreme Court 2016) (removed obstacle to Johnson-based relief in some contexts)
- United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016) (circuit decisions recognizing Johnson-based relief and retroactivity considerations)