In re. Morris Vernell Hires, Jr.
825 F.3d 1297
11th Cir.2016Background
- Hires was convicted of being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and possession of cocaine (18 U.S.C. § 844(a)); PSI listed prior Florida convictions including aggravated assault (1988) and robbery (1995).
- The PSI, which Hires did not contest at sentencing, described facts (pointing a gun, robbery at gunpoint) and the district court adopted the PSI; Hires received a 15-year mandatory minimum under the ACCA (three predicates: sale of cocaine, aggravated assault, robbery).
- Hires did not challenge his ACCA classification on direct appeal; his initial § 2255 was denied as time-barred; a later habeas (§ 2241) was voluntarily dismissed.
- Hires seeks authorization to file a second or successive § 2255 motion relying on Johnson (invalidating the ACCA residual clause) and Welch (holding Johnson retroactive) to argue his ACCA enhancement is invalid.
- The Eleventh Circuit examined whether Hires’s prior convictions relied on the now-void residual clause or instead qualified under the ACCA elements clause; it found aggravated assault and robbery in Hires’s record qualify under the elements clause based on precedent and Shepard-approved/PSI facts.
- The court rejected Hires’s attempt to invoke Descamps as a gateway through Johnson, reasoning Descamps is not retroactive for second-or-successive § 2255 applications and Johnson does not open the door to relitigate elements-clause predicates.
Issues
| Issue | Hires' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Hires can obtain authorization to file a second/successive § 2255 based on Johnson/Welch | Johnson/Welch announce a new, retroactive rule invalidating ACCA residual clause, so Hires’ ACCA enhancement may be void | Hires’ ACCA predicates (aggravated assault, robbery, sale of cocaine) independently qualify under the elements/enumerated clauses, so Johnson does not help | Denied — Hires did not make a prima facie showing that his sentence depended on the residual clause |
| Whether Hires’s aggravated assault conviction is an ACCA violent felony | Aggravated assault may not categorically qualify post-Descamps | Eleventh Circuit precedent holds Florida aggravated assault is categorically a violent felony under the elements clause | Aggravated assault counts as a violent felony under the elements clause |
| Whether Hires’s robbery conviction is an ACCA violent felony | Defense argues Descamps/divisibility may undermine using the modified categorical approach to treat robbery as an elements-clause predicate | Facts in PSI/Shepard documents show armed robbery (gun used), and Eleventh Circuit precedent treats Florida robbery as a violent felony under elements clause | Robbery qualifies as a violent felony under the elements clause based on undisputed PSI facts and precedent |
| Whether Johnson can be used as a "portal" to raise a Descamps claim in a successive § 2255 | Johnson should allow relitigation of whether prior predicates count under Descamps/divisibility | Johnson invalidates only the residual clause and does not open the door to Descamps-based challenges on elements-clause predicates; Descamps is not retroactive for second-or-successive § 2255 | Denied — Johnson is not a portal for Descamps; Descamps is not available as a basis for second-or-successive relief here |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson announced a new substantive rule that is retroactive on collateral review)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limited use of the modified categorical approach to divisible statutes)
- Shepard v. United States, 125 S. Ct. 1254 (2005) (authorizes certain documents to determine the nature of prior convictions)
- Turner v. Warden Coleman FCI (Medium), 709 F.3d 1328 (11th Cir. 2013) (Florida aggravated assault is categorically a violent felony under the ACCA elements clause)
- United States v. Dowd, 451 F.3d 1244 (11th Cir. 2006) (Florida armed robbery is a violent felony)
- United States v. Lockley, 632 F.3d 1238 (11th Cir. 2011) (Florida robbery qualifies as a crime of violence under ACCA clauses)
- United States v. McCloud, 818 F.3d 591 (11th Cir. 2016) (sentencing court may rely on Shepard-approved documents and undisputed PSI facts)
- In re Holladay, 331 F.3d 1169 (11th Cir. 2003) (prima facie threshold for successive applications requires a reasonable likelihood of benefit from the new rule)