Ziglar v. United States, 201 F. Supp. 3d 1315

Background

In 2006 Ziglar pled guilty to being a felon in possession of a firearm; the PSR identified four prior Alabama third-degree burglary convictions and the court sentenced him under the ACCA to 180 months.
Ziglar did not appeal; he filed an initial § 2255 in 2007 (ineffective assistance claim) which was denied and exhausted in 2010.
After Johnson invalidated the ACCA residual clause and Welch made Johnson retroactive, Ziglar obtained Eleventh Circuit authorization to file a successive § 2255 challenging his ACCA enhancement.
Ziglar argued his Alabama third-degree burglary convictions no longer qualify as ACCA predicates under Johnson and, relying on Descamps, also do not qualify under the ACCA’s enumerated-crimes clause.
The government conceded relief, but the district court undertook de novo review of whether Ziglar satisfied the jurisdictional gate of 28 U.S.C. § 2255(h)(2) for a successive petition.
The court concluded that (1) at sentencing the undisputed PSR facts supported treating the Alabama burglaries as generic burglary under the ACCA’s enumerated-crimes clause, and (2) Descamps is not a new, retroactive rule of constitutional law that can open the § 2255(h)(2) portal for a second petition.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Ziglar’s successive § 2255 meets § 2255(h)(2) so district court has jurisdiction	Johnson/Welch created a retroactive rule invalidating the residual clause, and Descamps means his burglaries also fail to qualify under the enumerated clause, so he falls within Johnson’s scope	Government conceded relief but did not (and cannot) waive § 2255(h)(2) requirements for a successive petition	Denied: Ziglar failed to show his sentence "falls within the scope" of Johnson because at sentencing the burglaries qualified under the enumerated-crimes clause; § 2255(h)(2) not satisfied
Whether Descamps is a retroactive rule of constitutional law for second or successive § 2255 motions	Ziglar relied on Descamps to show his burglaries are non-generic and therefore not ACCA predicates under the enumerated clause	Government implicitly relied on circuit precedent but cannot waive the jurisdictional retroactivity requirement; court cited Eleventh Circuit rulings holding Descamps non-retroactive for successive petitions	Held Descamps is a statutory-interpretation rule, not a new rule of constitutional law made retroactive by the Supreme Court; it cannot be used to open a successive § 2255 under § 2255(h)(2)
Whether district court may rely on PSR undisputed facts / modified categorical approach to determine predicate status at sentencing	Ziglar argued Descamps undermines prior practice and would change predicate analysis today	Court noted Eleventh Circuit precedent permitted use of PSR facts and Shepard-approved documents under the modified categorical approach at the time of sentencing	Held: under the law and the PSR facts as adopted at sentencing, the burglaries qualified as generic burglary for ACCA purposes at sentencing, so Johnson does not help Ziglar
Whether the government can waive non-retroactivity of Descamps to create jurisdiction	Ziglar and government suggested waiver; Ziglar relied on government concession	Government cannot confer subject-matter jurisdiction by waiver; § 2255(h)(2) is jurisdictional and requires Supreme Court-made retroactivity	Held: government waiver cannot supply § 2255(h)(2) jurisdiction; non-retroactivity stands

Key Cases Cited

Johnson v. United States, 576 U.S. 591 (2015) (invalidating ACCA residual clause as unconstitutionally vague)
Welch v. United States, 136 S. Ct. 1257 (2016) (holding Johnson applies retroactively on collateral review)
Descamps v. United States, 133 S. Ct. 2276 (2013) (limits use of the modified categorical approach when statute is indivisible)
United States v. Howard, 742 F.3d 1334 (11th Cir. 2014) (applied Descamps to Alabama third-degree burglary, finding it non-generic)
In re Hires, 825 F.3d 1297 (11th Cir. 2016) (Descamps not retroactive for successive § 2255 motions; district court may consider whether convictions qualified under clauses unaffected by Johnson)
In re Moore, 830 F.3d 1268 (11th Cir. 2016) (district courts must review de novo whether successive petition satisfies § 2255(h)(2))