In re Franks
815 F.3d 1281
11th Cir.2016Background
- Kurt Franks, previously sentenced under the Armed Career Criminal Act (ACCA) to 15 years for being a felon in possession of a firearm, seeks to file a successive §2255 motion after Johnson v. United States declared ACCA’s residual clause void for vagueness.
- Franks must obtain court of appeals authorization to file a successive §2255 motion and must make a prima facie showing that his claim relies on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.”
- The Eleventh Circuit had earlier decided In re Rivero, holding Johnson announced a new substantive rule but that the Supreme Court had not “made” it retroactive for collateral-review purposes.
- The majority panel applied Rivero and a line of subsequent Eleventh Circuit unpublished orders to deny Franks’s application to file a successive §2255 motion.
- A dissenting judge argued Johnson should be treated as retroactive for ACCA-based sentences — reasoning that Johnson narrows the scope of ACCA, creating a significant risk of unlawful punishments, and that Tyler/Justice O’Connor’s concurrence permits retroactivity to be found by logical necessity from multiple Supreme Court holdings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Johnson is a new rule made retroactive for successive §2255 relief | Johnson announced a new rule that the ACCA residual clause is void; thus it has been made retroactive (by logical necessity) for ACCA sentences | Supreme Court has not expressly held Johnson retroactive; Rivero controls and forecloses retroactivity on collateral review | Denied: Rivero controls; Johnson not made retroactive for successive §2255 motions in this circuit |
| Whether Rivero binds this panel for ACCA challenges (distinguishing Guidelines residual clause) | Franks: Rivero addressed Guidelines, not ACCA, so it does not control; Johnson reverses ACCA-based sentence and thus is retroactive | Majority: Rivero’s reasoning applies equally; prior published precedent binds the panel | Held: Rivero applies; distinction between Guidelines and ACCA insufficient to avoid precedent |
| Whether the Johnson rule fits Teague exceptions (watershed or substantive rule made retroactive by Supreme Court) | Johnson narrows statute and prevents imposition of unauthorized punishment; thus it fits substantive-rule exception and has been made retroactive by the Supreme Court (via related holdings) | Johnson is not a watershed rule; while substantive, the Supreme Court has not "made" it retroactive; only the Supreme Court can do so unequivocally | Held: Johnson is a new substantive rule but has not been made retroactive by the Supreme Court for collateral-review purposes |
| Whether the panel should certify or convene en banc / appoint counsel for full consideration | Franks (dissent): panel should appoint counsel, allow briefing/oral argument, or certify question to the Supreme Court given circuit split and importance | Majority: applied existing precedent and denied authorization without further procedures | Held: Panel denied authorization; dissent urged appointment, briefing, certification, or en banc review |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (SCOTUS decision holding ACCA residual clause unconstitutionally vague)
- In re Rivero, 797 F.3d 986 (11th Cir. 2015) (published Eleventh Circuit holding Johnson not made retroactive for collateral review)
- Teague v. Lane, 489 U.S. 288 (1989) (framework limiting retroactivity of new rules on collateral review)
- Schriro v. Summerlin, 542 U.S. 348 (2004) (distinguishing watershed procedural rules and substantive rules for retroactivity)
- Tyler v. Cain, 533 U.S. 656 (2001) (explaining that a new rule is "made" retroactive only if the Supreme Court has so held; multiple holdings may logically dictate retroactivity)
- Bousley v. United States, 523 U.S. 614 (1998) (decisions that narrow statutes may be retroactive because they risk convictions/punishments the law cannot impose)
- Atkins v. Virginia, 536 U.S. 304 (2002) (example of substantive rule prohibiting a category of punishment, applied retroactively)
- Whorton v. Bockting, 549 U.S. 406 (2007) (observing near-impossibility of a new rule qualifying as "watershed")