In Re: Ricardo Pinder, Jr.
824 F.3d 977
| 11th Cir. | 2016Background
- Ricardo Pinder, Jr. seeks permission from the Eleventh Circuit to file a second or successive 28 U.S.C. § 2255 motion challenging his § 924(c) sentence.
- § 924(c) increases penalties for using a firearm during a “crime of violence,” and defines “crime of violence” in § 924(c)(3)(B) by reference to offenses that “by their nature, involve a substantial risk that physical force ... may be used.”
- Pinder argues Johnson v. United States (invalidating the ACCA residual clause as unconstitutionally vague) applies to § 924(c)(3)(B) and, via Welch, is retroactive on collateral review.
- The Eleventh Circuit panel notes circuit law has not resolved whether Johnson’s rule extends to § 924(c)(3)(B), and recognizes conflicting authority in other circuits on similarly worded provisions.
- The court concludes Pinder has made a prima facie showing that his successive § 2255 motion relies on a new constitutional rule made retroactive by the Supreme Court, so authorization to file is granted; the merits must be decided de novo by the district court.
Issues
| Issue | Pinder's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Johnson’s vagueness rule applies to § 924(c)(3)(B) | Johnson’s invalidation of ACCA’s residual clause similarly invalidates § 924(c)(3)(B) and is retroactive via Welch | § 924(c)(3)(B) differs sufficiently or Johnson does not control; question unsettled | Court: Unsettled but Pinder made prima facie showing of a new retroactive rule; authorized to file § 2255 motion |
| Whether authorization to file a second/successive § 2255 requires a prima facie showing under 28 U.S.C. § 2244(b)(3)(C) | Pinder: he meets the § 2255(h)(2) retroactivity/new-rule requirement | Government: likely contests applicability of Johnson to § 924(c) (implied) | Held: Prima facie showing satisfied; panel grants authorization |
| Whether Hobbs Act conspiracy is categorically a “crime of violence” under § 924(c) | Pinder: his § 924(c) sentence rested on conspiracy to commit Hobbs Act robbery and could be affected if § 924(c)(3)(B) is void | Government: would argue Hobbs Act robbery/conspiracy qualifies as a crime of violence (implied) | Held: Circuit leaves merits—whether Hobbs Act conspiracy is a categorical § 924(c) crime—to the district court to decide de novo |
| Scope of the Circuit’s gatekeeping: decide retroactivity now or permit district court to decide first | Pinder implicitly favors circuit resolution to avoid inefficiency | Government prefers district court consideration or contest on merits later (implied) | Held: Circuit confines itself to gatekeeping: authorizes filing and directs the district court to decide the retroactivity and merits de novo; dissent argues the panel should decide retroactivity now |
Key Cases Cited
- In re Moss, 703 F.3d 1301 (11th Cir. 2013) (authorization to file second/successive § 2255 is subject to district court de novo review and appeal)
- United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013) (categorical approach governs § 924 analysis)
- United States v. Taylor, 814 F.3d 340 (6th Cir. 2016) (held § 924(c)(3)(B) not unconstitutionally vague)
- United States v. Vivas-Ceja, 808 F.3d 719 (7th Cir. 2015) (held identically worded statute § 16(b) unconstitutionally vague)
- Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015) (held § 16(b) void for vagueness)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause void for vagueness)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson rule is retroactive on collateral review)
- In re Joshua, 224 F.3d 1281 (11th Cir. 2000) (panel’s authorization does not decide merits; merits not relevant to gatekeeping)
- Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351 (11th Cir. 2007) (district court must decide certain questions de novo on collateral review)
- Day v. McDonough, 547 U.S. 198 (2006) (AEDPA’s emphasis on finality and efficiency in habeas procedures)