In Re: Wissam Hammoud
931 F.3d 1032
| 11th Cir. | 2019Background
- In 2005 Hammoud pleaded guilty to retaliating against a witness (18 U.S.C. §1513), solicitation to commit murder (18 U.S.C. §373), use of a firearm during a crime of violence (18 U.S.C. §924(c)), and possession of a firearm by a felon (18 U.S.C. §922(g)); he received a total 240-month sentence.
- The §924(c) conviction (Count 5) rested on the allegation that Hammoud possessed a firearm while soliciting murder (Count 3).
- Hammoud’s direct appeal and an initial §2255 motion were unsuccessful; a 2018 successive §2255 application raising vagueness challenges under Johnson/Dimaya was denied under then-controlling Eleventh Circuit precedent.
- The Supreme Court decided Davis (2019), holding §924(c)(3)(B)’s residual clause unconstitutionally vague, extending Johnson and Dimaya to §924(c).
- Hammoud filed for authorization to bring a second or successive §2255 motion asserting a Davis-based claim: his §924(c) conviction may have rested solely on the now-invalid residual clause because his §373 solicitation predicate may qualify only under that clause.
Issues
| Issue | Plaintiff's Argument (Hammoud) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Davis announced a new rule of constitutional law | Davis extended Johnson/Dimaya to §924(c), invalidating the residual clause and thus announces a new substantive rule narrowing §924(c) | Davis merely applied existing vagueness principles; not a new substantive rule | Court: Davis announced a new substantive rule (narrows scope of §924(c)) |
| Whether Davis is retroactive for §2255(h)(2) purposes | Davis is a substantive rule; Welch’s treatment of Johnson implies Davis must be retroactive on collateral review | Retroactivity not automatic unless Supreme Court expressly or necessarily dictated retroactivity | Court: Davis is retroactive under Tyler/Welch reasoning (holdings together dictate retroactivity) |
| Whether Hammoud’s present Davis claim is barred as a successive claim under In re Baptiste | Hammoud: Davis is a distinct new claim (not merely a rehash of prior Johnson/Dimaya-based application) | Government: prior successive filing raises Baptiste jurisdictional bar to repeat claims | Court: Baptiste does not bar this Davis claim because Davis announces a new, separate substantive rule |
| Whether Hammoud made a prima facie showing that his §924(c) conviction may have rested solely on the residual clause | Hammoud: his §373 solicitation predicate may qualify as a crime of violence only under §924(c)’s residual clause, implicating Davis | Government: solicitation under §373 could qualify under elements clause or other grounds; Hammoud must prove reliance on residual clause | Court: Hammoud made a prima facie showing; authorized to file a successive §2255 limited to the Davis claim; merits to be decided by the district court |
Key Cases Cited
- Schriro v. Summerlin, 542 U.S. 348 (explaining Teague exceptions for retroactivity)
- Teague v. Lane, 489 U.S. 288 (framework for new-rule retroactivity)
- Tyler v. Cain, 533 U.S. 656 (statutory requirement that Supreme Court must make rule retroactive for §2255(h)(2))
- In re Rivero, 797 F.3d 986 (11th Cir.) (Johnson announced a new substantive rule)
- In re Baptiste, 828 F.3d 1337 (11th Cir.) (successive-claim bar under §2244(b)(1) applied to §2255)
- In re Thomas, 823 F.3d 1345 (11th Cir.) (procedures for ACCA-based successive §2255 after Welch)
- In re Moore, 830 F.3d 1268 (11th Cir.) (prima facie standard for authorization to file successive §2255)
- Jordan v. Sec’y, Dep’t of Corrs., 485 F.3d 1351 (11th Cir.) (threshold prima facie standard for §2244(b)(3)(C))