In re Parker
827 F.3d 1286
11th Cir.2016Background
- Leslie Parker seeks authorization under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A) to file a second or successive § 2255 motion challenging his ACCA enhancement.
- Parker argues Johnson v. United States (made retroactive by Welch) invalidates the ACCA residual clause used to enhance his sentence.
- The sentencing court applied the ACCA enhancement based on two 1982 Florida aggravated-assault convictions and a 1983 Florida burglary-of-a-dwelling conviction; the PSR relied on the indictment and the court adopted the PSR without detailed colloquy about those predicates.
- Under Eleventh Circuit precedent in In re Rogers, the court assesses whether the record shows the sentencing court relied only on ACCA clauses that remain valid; if unclear, Descamps applies and a prima facie Johnson claim may exist.
- The panel found no binding precedent establishing that Florida burglary categorically qualifies under ACCA’s enumerated or elements clauses post-Descamps; prior Eleventh Circuit treatment (Weeks) used the modified categorical approach and predated Descamps, so it is not controlling on divisibility.
- Because Parker’s burglary conviction may have been counted under the now-invalid residual clause and the record does not show reliance on only valid ACCA clauses, the panel concluded Parker made a prima facie showing and granted authorization to file a successive § 2255 motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Parker’s proposed successive § 2255 motion satisfies § 2255(h) by raising a Johnson claim | Johnson invalidates the ACCA residual clause; Parker’s burglary conviction may have been counted under that clause | Government would argue ACCA predicates relied on were valid under enumerated/elements clauses (or otherwise not affected) | Authorized: Court found a prima facie Johnson claim because record doesn’t show reliance solely on valid ACCA clauses |
| Whether the burglary conviction categorically qualifies as an ACCA predicate under a valid clause | Parker: no binding precedent shows Florida burglary categorically qualifies post-Descamps | Gov: prior Eleventh Circuit decisions (e.g., Weeks) support counting Florida burglary | Court: Weeks used modified categorical approach and predated Descamps, so it is not binding on divisibility; divisibility is unclear |
| Whether In re Rogers standard permits authorization here | Parker: Rogers allows prima facie showing when record unclear and divisibility unresolved | Gov: may argue sentencing relied on valid clauses or other predicates suffice | Court applied Rogers and found the Rogers threshold met |
| Scope of appellate review at the authorization stage | Parker: only need prima facie showing as per § 2244(b)(3)(C) and Jordan | Gov: may seek denial if record clearly shows predicates unaffected by Johnson | Court: follows Jordan; only denies if predicates clearly unaffected; here they were not clearly unaffected, so authorization granted |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (2015) (invalidated ACCA residual clause as unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (made Johnson retroactive on collateral review)
- Descamps v. United States, 570 U.S. 254 (2013) (clarified use of the categorical vs. modified categorical approach and divisibility analysis)
- In re Rogers, 825 F.3d 1335 (11th Cir. 2016) (prima facie standard when record unclear and divisibility unresolved post-Descamps)
- United States v. Weeks, 711 F.3d 1255 (11th Cir. 2013) (applied modified categorical approach to Florida burglary prior to Descamps)
- Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351 (11th Cir. 2007) (court of appeals’ role is a threshold prima facie determination for successive applications)