In Re: Orestes Hernandez, 857 F.3d 1162

Background

Orestes Hernandez seeks authorization under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A) to file a second or successive § 2255 motion challenging § 924(c) sentencing enhancements.
Hernandez argues Johnson v. United States and Mathis v. United States undermine the categorization of his predicate offenses (Hobbs Act robbery/extortion and carjacking) as "crimes of violence" for § 924(c).
Hernandez previously filed a pro se successive-application raising the same Johnson-based claim; the Eleventh Circuit denied that application, concluding his Hobbs Act convictions fell within § 924(c)(3)(A)’s use-of-force clause. In re Hernandez, No. 16-11862 (11th Cir. May 17, 2016).
The panel majority denies Hernandez’s new application on the ground that he raises the same argument the court already rejected and therefore is barred by In re Baptiste; Mathis does not supply a § 2255(h) ground because it did not announce a new constitutional rule.
Judge Martin (joined by Judge Jill Pryor) concurs in the result but writes separately: he critiques the court’s prior summary denial, explains why Hobbs Act extortion (and attempted extortion) may not categorically qualify as a § 924(c) "crime of violence," and argues Baptiste improperly bars meaningful review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hernandez may obtain authorization to file a second/successive § 2255 motion	Johnson/Mathis undermine § 924(c) predicates; new rule merits authorization	The claim was presented previously and is barred by prior denial under Baptiste; Mathis is not a new constitutional rule	Denied: application repeats previously rejected claim; no prima facie showing under § 2255(h)
Whether Johnson invalidates § 924(c)(3)(B)’s residual/elements language	Johnson’s vagueness holding applies to similar language in § 924(c)(3)(B), undermining § 924(c) predicates	Court found Hernandez’s Hobbs Act counts fit § 924(c)(3)(A) (use-of-force) so Johnson would not help him	Majority: not reached on the merits due to procedural bar; concurrence says Johnson could apply and warrants district-court review
Whether Hobbs Act extortion categorically qualifies as a § 924(c) "crime of violence" under the elements clause	Hobbs Act extortion can be premised on fear/financial loss and thus may not require violent physical force; therefore it may not categorically be a crime of violence	Panel previously concluded indictment showed use/attempted use/threatened use of force; therefore Hobbs Act predicates qualify	Majority: treated as previously adjudicated and not relitigable; concurrence: raises substantial doubt that extortion categorically requires violent force and urges merits review
Whether Mathis provides an independent, retroactive constitutional rule for § 2255(h) purposes	Mathis clarifies when statutory alternatives are elements vs. means, which affects categorical analysis	Mathis did not announce a new constitutional rule and so cannot satisfy § 2255(h)	Denied: Mathis is interpretive guidance, not a new rule under § 2255(h)

Key Cases Cited

In re Baptiste, 828 F.3d 1337 (11th Cir. 2016) (court held prior-presentation bar applies to successive § 2255 leave applications)
Jordan v. Secretary, Department of Corrections, 485 F.3d 1351 (11th Cir. 2007) (explains prima facie threshold for successive-application authorization)
In re Pinder, 824 F.3d 977 (11th Cir. 2016) (held Johnson could invalidate language similar to § 924(c)(3)(B))
United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013) (categorical approach required for determining whether an offense is a crime of violence)
In re Gomez, 830 F.3d 1225 (11th Cir. 2016) (unanimity problems where multiple predicate offenses could support § 924(c) conviction)
Curtis Johnson v. United States, 559 U.S. 133 (2010) (physical force requires violent, i.e., strong, physical force)
Richardson v. United States, 526 U.S. 813 (1999) (distinction between alternative elements and alternative means of committing an offense)