Jeffrey Bernard Beeman v. United States

924(a)(2). years. 922(g), §§ ten 18 U.S.C. Before JULIE CARNES and But if a who is one defendant convicted of EDMONDSON, Judges, Circuit already of those offenses has three or WILLIAMS,* Judge. District felony” more convictions for a “violent or a CARNES, Judge: JULIE Circuit offense,” drug provides “serious the ACCA be sentenced to at least 15 Jeffrey In 2009 Bernard Beeman was he must 924(e)(1). being possession years imprisonment. convicted of a felon in of Id. firearm, of 18 U.S.C. When Beeman was sentenced violation * Williams, The Honorable Kathleen M. nation. Florida, sitting by desig Southern District of 26, 2015, felony” a “violent as fol- On June United States

ACCA defined Supreme Court held that the ACCA’s re lows: unconstitutionally vague. clause is sidual by imprisonment [A]ny punishable crime Johnson, April 135 S.Ct. at 2563. And in year ... exceeding a term one 2016, the Court held that— retroactively applicable decision is to cases (i) use, attempt- has as an element the review. Welch v. United on collateral use, physical ed or threatened use U.S. -, 1257, 1268, another; person or against force (2016). 194 L.Ed.2d 387 (ii) arson, extortion, in- burglary, or explosives, or otherwise volves use of On June Beeman filed his a seri- presents motion, involves conduct attacking ACCA-en- injury potential physical ous risk of to' am- hanced sentences for his firearm and another.... argument proceed- munition offenses. His First, parts. ed in three that he contended 924(e)(2)(B). Id. § prong The first Johnson decision the invalidated his definition, 924(e)(2)(B)(i), § is as known sentences because when he was ACCA Mays v. United the “elements clause.” Georgia sentenced 2009 his conviction (11th States, 728, 730-31 Cir. aggravated quali- assault would have 2016). 924(e)(2)(B)(ii), prong, § The second felony fied as a under the residual violent split is itself into two clauses. The first Second, clause of the he pointed ACCA. arson, extortion, part, listing burglary, or aggravated out that his assault conviction involving explosives, the use of offense felony was not violent under the enumer- as the “enumerated offenses known ated offenses clause because assault is not clause,” part and the second is known as third, included in that list of crimes. And clause.” Id. the “residual argued that a he conviction under presentence investigation Beemaris re- Georgia aggravated assault statute does (PSR) aggra- his conviction for port listed felony not now as a violent pos- vated assault and two convictions for making argu- the elements clause. In session of cocaine with intent to distribute the elements he ment about clause relied that, and concluded based on those convic- heavily Supreme on the Court’s 2013 deci- tions, qualified he for the ACCA enhance- States, in Descamps v. United sion 570 object ment. Beeman did not to that rec- n 2276, U.S. 133 S.Ct. 186 L.Ed.2d 438 ommendation, and the district court (2013), Supreme which is one in a line of adopted it further The without discussion. describing Court how federal decisions ag not recommend PSR did whether courts should determine whether an of gravated assault conviction should be qualifies as a predicate fense offense under felony found to be a violent for ACCA enumerated offenses and ele ACCA’s purposes under the elements clause or the ments clauses. See Mathis v. United both, residual clause or and the district States, U.S. -, 136 S.Ct. specify finding court did not its whether (2016); Descamps, L.Ed.2d 604 133 S.Ct. qualified that the conviction was based on 2276; Shepard v. United 544 U.S. clause or the residual clause elements (2005); 161 L.Ed.2d 205 appealed or both. Beeman his convictions Taylor v. United 495 U.S. sentences, July but not his and-on (1990). 2143, 109 S.Ct. L.Ed.2d 607 v. Bee United States affirmed. Court man, Fed.Appx. The district court denied Beemaris and, § untimely 2255 motion as alterna- every on the merits. It determined other circuit to have considered the tively, untimely § be- concluded, Beeman’s 2255 motion was hold, has and we now year it more than a after his cause he filed the timeliness of each claim asserted final and of conviction became judgment petition either section 2255 motion or a a true Johnson the motion failed raise challenging a state-court conviction under core, claim, on rel[ying] instead “at its § 28 U.S.C. 2254 must be considered inde- ground, an alternative Descamps.” As (footnotes omitted). pendently.”) In other that even under the Des- court determined words, if a 2255 movant asserts decision, Georgia conviction for camps timely 2255 motion is because he filed it a violent aggravated qualifies assault year Supreme within one Court’s elements clause. felony under ACCA’s recognizing issuance of decision a new right, we must determine whether each II. DISCUSSION depends claim asserted the motion A. The Time Bar particular decision. If a claim new decision, depend “We review de novo district does not on the new that a 2255 motion court’s determination untimely claim is must be dismissed. Drury vacate time-barred.” In order for a Court decision one-year to restart the statute of limita- 2007). The Antiterrorism and Effective 2255(f)(3), § tions under the decision must (AEDPA) Penalty provides Act a Death (2) (1) recognize right both a new be one-year bring statute of limitations to retroactively to on applicable made cases 2255(f). § § The 2255 motion. 28 U.S.C. review. collateral See 28 U.S.C. to run on the period begins limitations 2255(f)(3). § The the Supreme issuance of possible triggering four dates. See latest of Court’s Johnson decision meets both of triggering Typically, applicable id. the requirements. Supreme those The Court judgment “the date on which the date is 2255(f)(1). held in that Johnson announced a Welch § conviction becomes final.” Id. retroactively applicable new rule that is rely on that limitations Beeman cannot Welch, however, he filed his on collateral review. period, because cases See years § almost five after its 2255 motion at Because the Court Supreme S.Ct. 1268. Instead, that expiration. 26, 2015, Johnson, he asserts issued on June Johnson — timely § he filed it 2255 motion is because U.S. —, 2551, 192 L.Ed.2d 135 S.Ct. year Supreme one Court’s within wishing §a movant to raise a decision, bringing it within the Johnson claim had until June “the period begins limitations date claim. obtaining file a motion See 28 initially right on which the asserted was 2255(f)(3). § U.S.C. Court, by if that recognized Supreme the newly recognized by has been right hand, the other the issuance of On retroactively ap and made Supreme Court Descamps decision cannot as a to cases on collateral review.” Id. plicable 2255(f)(3). § date under It triggering 2255(f)(3). § Descamps have held that the true that we retroactively applicable to cases decision is 2255(f) § limitations The statute of F.3d at Mays, on collateral review. “requires claim-by-claim approach de retroactively being applicable But 733-34. Tucker, termine timeliness.” See Zack v. only part (11th 2013) (en to cases on collateral review 917, 924, 926 Cir. restarting the statute of limita banc); the test Davis v. accord 2016) (“But requires AEDPA also that the 327-28 tions. F.3d clause-, “newly recognized by the Su under the residual while Des- have been 2255(f)(3). preme camps Court.” 28 U.S.C. claim asserts that the defendant incorrectly sentenced as an was armed Descamps decision is holding In that the career criminal under the elements or enu- retroactively applicable to cases on collat- merated offenses clause. Beeman raised review, Mays decision makes eral our both of those claims in his 2255 motion. Descamps did not set out a clear largely argument He focused on an fact, In based newly recognized right. we Descamps the 2013 decision meant that his recognition that our decision on the “Des- Georgia aggravated conviction for assault a new camps did not announce rule-—-its longer qualify felony could no as a violent merely existing prece- holding clarified under the elements clause. That is obvious- 734; Descamps, dent.” 817 F.3d at see also ly a claim. But Descamps he also claimed (“Our explaining at caselaw that when him in categorical and its ‘modified’ approach district court relied on the residual clause case.”). counterpart all but resolves this aggravated to find that his assault convic- explained, “[i]f And as we have deci- qualified felony tion as violent under the rule, an old .... merely sion clarifies In support proposition, ACCA. of that he able to take petitioner will not be advan aggravated asserted assault Geor- tage of the statute of limitations extended gia historically a crime quali- “which requires newly under which rec predicate fied as an ACCA by Fi ognized right Court.” Therefore, residual statute’s clause.” he guereo-Sanchez v. United contended that the Johnson decision re- result, 1207 n.4 As a quired he be resentenced without wishing §a 2255 movant to raise a Des- ACCA enhancement. That sounds like a rely camps claim cannot on subsection Johnson claim. (f)(3) starting point as the for the calcula Instead, period. tion of the limitations he The district court determined that Bee- year file his motion within one of one must § motion untimely man’s 2255 was because triggering of the other dates set out only it a claim. Descamps agree raised We 2255(f). § untimely that motion an the raised Des- claim, camps part and of the district judgment of

Beeman’s conviction be- court’s order is due to be affirmed on that 2010, meaning came final in October ground. one-year statute of limitations under 2255(f)(1) § expired October 2011. He however, disagree, We with the district § did not file his 2255 motion until June § conclusion that court’s Beeman’s years almost five later. The extended motion did not also assert a Johnson claim. 2255(f)(3) § period raising limitations heavy Given Beeman’s reliance on Des- expired Johnson claim on June motion, camps in support his the district one-year anniversary of the Johnson point court’s conclusion on that is under- result, § decision. As a if his motion Nevertheless, standable. Beeman’s motion claim, raised Johnson claim was that, allege Georgia aggravated did as- timely, any but other claim the motion sault, which was one of qualifying his three raised—-including Descamps claim—was convictions, “historically qualified ACCA untimely. ACCAj’s predicate as an under [the ACCA clause,” years, residual and that “in recent Descamps

A Johnson claim and a claim using the Eleventh Circuit has been very make two different assertions. A residual clause as a default home for Johnson claim contends that the defendant might was sentenced an armed criminal as career state statutes otherwise have validity been counted under the elements or enu- enhancement on the “turn[ed] words, crimes clauses.” He also filed his the residual clause.” In other he merated one-year anni- days actually motion 19 before must show the clause ad- versary versely of the Johnson decision. See 28 affected the sentence he received. 2255(f)(3) (“The Thomas, § limitation In period U.S.C. re 2016).1Only run from ... the date on which the if shall the movant would not initially recognized by asserted was have been sentenced as an armed career Court....”). Under the cir- criminal absent the existence of the residu- cumstances, enough the motion said to as- al clause is there a Johnson violation. That (1) only sert a Johnson claim. will be the case if sentencing solely court relied on the residual Regardless ground stated opposed solely relying to also or on or judgment, the district court’s order either the enumerated offenses clause or may any ground supported affirm on “[w]e (neither elements clause of which were by the record.” Castillo v. United Johnson) question by called into 1300, 1303 In prior felony, conviction as a violent and case, the record makes clear (2) if there not at were least three other § 2255 mo district court’s dismissal prior qualified convictions that could have tion the correct result as to the John was under either of those two clauses as a timely because—although son claim felony, violent or as a drug serious offense. raised—Beeman has not carried his bur- that claim on the merits. to our proving den of Critical decision on the mer evidentiary hearing request proof He did not its issue in this case is the burden of court, sug- persuasion. the district and he has not The Government contends gested in this Court that a remand for an that a 2255 movant bears the burden of evidentiary any do him hearing would proving that his enhancement Instead, good. proceed he has chosen to imposed because the court exists, the basis of the record as now argues used the clause. Beeman residual claim on that and we consider merely possible that if it is that the court record. relied on that clause to enhance the sen tence, then he has met his burden.2 We

B. The Merits hold, that, conclude, like claim, movant, prove To a Johnson a Johnson 2255 claimant prove prove that must his claim.3To a Johnson movant must establish his sentence clause, we 1. makes no difference that Thomas was other than the residual are re- It prisoner's applica- decided in the context of a quired to conclude that it was the residual tion for certification to file a second or suc- clause on which the enhancement was based. § cessive 2255 motion. The Thomas decision applicant held that an could not make even a previously 3.Our Court has stated in dicta that prima showing a facie of Johnson claim if the does bear the burden of Johnson movant Johnson decision did not affect his sentence. by proof, argued the Government. See In re as applicant prima An who cannot make even a 1268, Moore, (11th 830 F.3d 1272-73 Cir. showing § facie that his 2255 motion contains subsequent opinion, In a the Court necessarily a Johnson claim will be unable to position now advocated endorsed dicta.the proving shoulder his burden of that he is merely by a movant must show Beeman that actually relief under the entitled to possibility that the court relied on the decision. to enhance the sentence. See residual clause Chance, 1335, (11th In re 831 F.3d 1338-42 Actually, puts strongly. 2. Beeman it more He now, 2016). As to the case before us we says affirmatively Cir. that unless the record dicta. We have examined that the district court relied on a clause have not deferred to shows 1222

claim, proof’); that—more States v. Trum the movant must show burden United (7th 1956) (“On 273, blay, not—it was use of the residual 234 F.2d 275 Cir. likely than vacate, court’s a motion to set aside or correct a clause that led to sentence, just If it is a movant the burden of enhancement of his sentence. has States, Taylor court relied 229 F.2d likely proof.”); that the United (8th 1956) (“Because 826, enumerated 832 the stat on the elements or offenses Cir. utory proceeding an alternative for is a collateral attack solely or as basis conviction, enhancement, upon judgment then the movant has the bur that his enhancement was den is on the to establish a basis [movant] failed to show the residual clause. for relief under some one or more of the due to use of 2255].”). grounds set forth [§ conclusion that a We rest our precedent requiring to our As own § prove 2255 movant must his Johnson § prove 2255 movant to his entitlement to long authority holding claim on a line of relief, decision, in the we that Rivers held that a 2255 movant “bears the burden to Rivers’s “motion must ... be denied” be prove the claims in his 2255 motion.” cause he not met his burden of “[had] States, Rivers v. United 777 F.3d proof’ only where the evidence he offered (11th 2015); LeCroy v. 1316 Cir. testimony claim support (11th F.3d Cir. the district court did not credit. 777 F.3d Barnes v. United 579 F.2d 1318; at at see also id. 1316. (5th 1978) (“Under 364, 366 Cir. Section had the burden of [the movant] case, Similarly, LeCroy peti- relief.”); showing that he was entitled tioner asserted that counsel was ineffective Coon v. United 441 F.2d failing to call expert witness who 1971) (“A movant in a collateral Cir. presented mitigation could have evidence upon judgment attack has the burden to about his childhood. 739 F.3d at 1313-14. allege prove facts which would entitle attorneys His not present had decided relief.”). him to expert they witness because feared did, they if the Government would holding. are not

And we alone.in so See conduct its own evaluation of him and Pettiford, United States v. present expert rebuttal whose evidence 2010) (“[T]he court district could be at damaging. LeCroy Id. 1321. must whether the [§ determine mov- argued attorneys’ that his “fear of a Gov- showing has met his burden of ant] ernment evaluation” was irrational and his sentence is on one of unlawful they could have allowed the Govern- specified grounds.”); United States v. Di evaluation, ment to conduct the seen what (1st Carlo, said, then (“In pres- decided whether to seeking collaterally to attack their expert.. ent the defense Id. This Court convictions under section [movants] explained LéCroy’s argument: by establishing pre bear the burden of proof, ponderance they evidence are inverts the burden of which on a petition belongs petitioner. relief.”); entitled to Zovluck v. United to the (2d 339, LeCroy’s F.2d 341 If claim that a 448 Cir. is Government in of an from evaluation (stating, appeal damag- the context would have been less motion, ing expert’s the denial of a 2255 that than evaluation—and “[t]here [his that, accordingly, no that had the appellant is doubt but the defense team reaching principles. this issue afresh in our conclusion legal based on what we see as traditional willing to roll tion or that an ought to have been more error had no effect on the judgment the dice and see what Government would undermine the presump- carry that up finality would come with—then to tion of that attaches at the end of argument LeCroy actually would need appeal process. the direct It go would to show that the Government evaluation long way creating presumption toward of Otherwise, LeCroy would be favorable. non-finality and important undermine the asking disregard to burden of us finality protects. interests that proof speculate might and about what caselaw, spite In of all the above Bee- been, drawing in have an inference his man contends that “[t]he rule must be this: simply favor that the record does not A movant has met his burden to support. Here, LeCroy where is either ,a show that he has right to 2255 relief unwilling or to unable demonstrate ... unless the record affirmatively shows evaluation Government’s would the district court upon relied opposed have favorable—as to been fact would, ACCA’s elements clause.” He to conceivably being has favorable—he language LeCroy borrow the of our deci- carry showing failed to his burden in sion, proof have us invert the burden of prejudice. persuasion by and taking well-established (underlined emphasis Id. at 1321-22 add- principles developed in numerous decisions ed). years turning over the and entirely them long holding line of decisions that a Our this, upside urges, down. We have to do he § 2255 movant must bear the burden of because district courts have never been proving his entitlement to relief makes required say, to and as a result have not of principal sense. of the functions “[0]ne stated, always expressly which of the degree AEDPA of greater was to ensure they relying ACCA’s clauses are on when finality for convictions.” Johnson v. United finding qualifies conviction as a vio- result, felony. argues, lent As a Beeman if v. see also Jones United every we treat Johnson movants like other 2002) (“A funda- F.3d movant, § 2255 them require and to shoul- purpose mental for the AEDPA was to proof persuasion, der their of and burden finality pro- establish in post-conviction unlikely prisoners it is of these AEDPA, ceedings”). Even before the Su- showing they will are due relief. succeed had preme Court instructed us “direct accept Even if we factual Beeman’s primary avenue for review of appeal is premise what records about a conviction or sentence.... When the show, reject typically show or don’t we ... process of direct review comes to legal premise proof the burden of and end, presumption finality legality of and persuasion should be overhauled for the attaches and sentence.” conviction purpose increasing the number of cases Estelle, 463 U.S. Barefoot prevails. which movant The burden 3391-92, S.Ct. 77 L.Ed.2d 1090 persuasion longstand- proof reflects (1983). Finality opera- “is essential to the finality. It ing and fundamental interests justice system. tion of our criminal With- by appropriate burden application finality, deprived out the criminal law is of a supposed that the outcome case is Teague much of its deterrent effect.” determined, way not the other around. be Lane, 489 U.S. approach This is as true with Johnson (1989). Putting L.Ed.2d 334 type claims as with of claim. on the proof persuasion burden of persuaded by Nor are we Beeman’s ar- proceeding in a Government § requiring that 2255 movant gument show the absence of a constitutional viola- obvious, raising carry making claim to his bur- otherwise that a violation of statute proof persuasion Georgia’s aggravated den of would make assault felony only the “fluke” as a depend qualified the outcome on of violent under Instead, having expressly citing district court stated residual clause.5 to no au- true, relying thority, merely gen- which on. If that his motion asserts in clause was equally Georgia would true whichever side bears eral terms that “a conviction for be ... arbitrary aggravated historically the burden. It is no more to have assault [has] proceeding qualified in a an predicate [the the movant lose as ACCA under than Beeman—rely- because of a silent record to have the residual clause.” ACCA]’s ing only involving burgla- Government lose because of one. What on cases Florida arbitrary ry would be is to treat Johnson convictions—also contends that this §. differently using claimants than all other 2255 Court has “been the residual clause claiming movants a constitutional viola- as a default state statutes home might tion.4 that otherwise have been counted under the elements or enumerated crimes Beeman concedes there is observations, general clauses.” These how- nothing suggesting in the record ever, are enough carry not to his burden of only district court relied on the residual he, fact, establishing that was sentenced sentencing clause in him. In his as an armed career criminal solely here motion, in conclusory he stated terms because of the residual clause. the district court must have relied nothing reply residual but the record In his to the Govern motion, supports argument; and Beeman has ment’s answer to Bee- pointed holding, to no in 2009 or man that it precedent conceded is unclear6 from the imply every pointed 4.We do not to 5. We mean sen- note that Beeman has likewise precedent holding. tencing to no since 2009 so But record will lack sufficient evidence precedent even if such had been announced about whether the district court relied on the sentencing hearing, since Beeman's it would finding residual clause in that the defendant question not answer the before us. What we criminal. was armed career Some sentenc- must determine a historical fact: was Bee- ing may records contain direct evidence: solely per man in 2009 sentenced the residual findings by sentencing judge comments or noted, clause? And as Beeman bears the bur- indicating that the residual clause relied proving Certainly, den of that historical fact. application on and was essential to sentencing if the law was at the time clear sug- ACCAin that case. Nor do we mean to only the residual clause would authorize gest that there will not sometimes be suffi- finding prior that the conviction was a vio- spe- cient circumstantial evidence to show the felony, strongly lent that circumstance would example, cific basis of the enhancement. For point sentencing per to a the residual clause. PSR, there could be statements in the which However, today court's decision to, objected recommending were not that the Georgia aggravated longer assault no enumerated clause and the elements clause qualifies present felony law as a violent apply prior ques- did not conviction in (and under the elements clause thus could apply prior tion did not convic- qualify only now under the defunct residual justify applica- tions that could have served to clause) very would be a decision that casts tion of the ACCA. Or the record light, any, key question little if on the may by prosecutor contain concessions historical fact here: whether in 2009 Beeman apply that those two other clauses do not was, fact, sentenced under the residual the conviction in or And others. only. clause could there be other circumstances on which rely; a movant can the above are but a few 6. The test” discussed in In re "clear/uncleár examples. judged Rogers, Each case must be on its 825 F.3d 1335 inapplicable own facts. That here. test was established record, court had Given this whether the Beeman’s Johnson record claim was therefore due to be dismissed residual clause or the ele relied on the carry because he failed to his burden of both, finding that his or ments proof. Specifically, to prove—that he failed qualified conviction as a aggravated assault likely it was more than not—he fact was “Where, here, the evi felony. as violent sentenced as an armed career criminal un- clearly explain hap not what dence does the residual Having der clause. failed to ... the with the burden los pened party prove but for the residual clause he Head, Romine v. 253 F.3d es.” sentence, would have received a different (11th 2001); see also ex rel. Cir. Schaffer reason, he prevail. cannot For we Weast, 546 U.S. Schaffer AFFIRM. (2005) 528, 533-34, 163 L.Ed.2d 387 S.Ct. term (explaining per that the “burden WILLIAMS, Judge, Dissenting: District party means that the with the suasion” I agree majority with the that Beeman’s closely if the evidence is burden “loses timely,1 Johnson claim is and that he un- balanced”); Drinkware, Dynamic LLC v. equivocally the bears burden establish- Inc., Graphics, 800 F.3d 1378- Nat’l ing I agree, his to relief. cannot 2015) (Fed. (“Failure prove the Cir. however, adequately that he has failed to required by applicable matter as stan demonstrate that he was sentenced under party that the with the dard means burden the residual clause of the Armed Career if persuasion point—thus, loses on (“ACCA”), Criminal Act or that his claim uncertain, the fact trier of the issue is left substantively Specifically, without merit. loses”) (quota party with burden I do not believe that the merits of Bee- omitted); tion marks Lovell ex rel. Lovell timely claim can proper- man’s be Dist., Poway Sch. ly reaching assessed without Unified (“In general, if the aggravated of whether his conviction for balanced, proper evenly Georgia qualifies such that a assault evidence predicate offense under the elements point decision on the cannot be made one ACCA, fully clause of the an issue that was other, way party or the then the with adjudication on this ripe briefed and loses.”); Cuppett v. persuasion burden of record. Duckworth, 1132, n.5

1993) (“A party persua with the burden of decision Since Court’s burden”). pro- specifically if he fails to meet that Johnson—or more sion loses making prelimi- garding procedural default or untimeliness expressly as a means of AEDPA, nary eligible determination about whether habeas would result in which petitioner prima had made out facie show- ''remain[ing] imprisoned solely defendants ing leave file a sufficient to warrant sec- [they] argument did not raise an because The ond or successive section 2255 motion. appeal by Supreme Court that was foreclosed merely test” allows a defen- "clear/unclear precedent at the time—and would have been op- bring dant to a Johnson claim v. United deemed frivolous.” Duhart stage—to portunity—at produce the merits MARRA, No. 16-cv-61499- 2016 WL actually establishing evidence that he was (S.D. Sept. Westv. at *3 Fla. see also solely under the residual clause. sentenced Here, (S.D. No. 16-cv-22459-KMW permitted to Beeman has been raise 22, 2017); Vasquez Fla. Mar. v. United claim; but his lack of evidence has failed (S.D. Fla. Dec. No. 16-cv-14247-JEM satisfy proof. his ultimate burden of 2016), adopted, report and recommendation (S.D. Feb. No. Fla. agree majority's implicit 16-cv-14247-JEM 1. I also with the arguments rejection re- of the Government's former, regard nouncement in that Johnson would Johnson. With to the Bee- Welch retroactively applicable be on collateral re- in opened man’s motion the district court view-—courts have reviewed a torrent of following with the statement: “Mr. Beeman petitions challenging habeas sentences that challenges ground: In his sentence on one mandatory on the meted States, relied mínimums light of Johnson v. the 210- United case, pursuant out to the ACCA. In each prison month sentences on Counts One First, applied: the same has been Four, standard imposed and each under [the the movant must show that he was sen- ACCA], goes are unlawful.” The motion on tenced under the now-invalidated residual argue that “the ACCA’s residual Second, of the movant clause ACCA. harsh, the basis for Beeman’s Mr. ACCA- that he could not have been must show extinct,” enhanced sentence .... is now and any sentenced portion under because, that Beeman is entitled to relief statute, namely the clause and elements law, light in of that in change he no the enumerated clause. See Johnson v. longer has qualifying predicate three — —, United U.S. remaining crimes under the language of (2015) (clarify 192 L.Ed.2d 569 the ACCA. ing that decision does not call into “[the] issue, existing precedent As to on this question application of the Act to the four has been established the context of sec- offenses, enumerated or the remainder of petitions ond or successive habeas felony.”). the Act’s definition of a I violent applicant’s implicates “when an ‘claim agree that making the burden of this Johnson,’ apply binding Supreme we must showing demonstrating right to re precedent Descamps, Court such as if even movant—here, squarely lief rests with the precedent does not on its estab- own Upon Beeman. a review of his motion and independent lish ‘an claim that is itself record, however, I that Bee- believe subject gatekeeping requirements to the man has met that burden. 2255(h) ... [of 28 U.S.C. determin- ]’ matter, majority As an initial con- ing prior whether a conviction would still argument flates Beeman’s that he could support an enhanced ACCA sentence.” In not have been sentenced under the ele- Rogers, re ments clause—made the context of es- 2016); Adams, see also In re tablishing his Johnson claim—with the ar- (distinguishing gument improperly that he was sentenced “petitioners cases where were forced to under the elements clause—which would rely Descamps as a standalone claim” untimely Descamps constitute claim. from where implicated cases Johnson is Specifically, majority observes may because “the court have petition largely Beeman’s “focused on an clause,” relied on the residual and finding argument that the Descamps decision in ambiguity the latter situation that “the meant Georgia ag- that his conviction for surrounding court’s deci- gravated longer qualify assault could no requires sion us to look to the text of the felony a violent under the clause” elements statutes, guiding prece- relevant ... [and] obviously and concludes that this “is dent, Descamps, such as to ensure we Descamps claim.” apply meaning the correct of the ACCA’s words.”). conclusion, Similarly, establishing however, that a ignores

This both predicate qualify offense could not under unambiguous presented statements petition by applying the elements clause the Des- Beeman’s habeas and the estab- camps part par- lished standards framework for demon- has been courts strating a defendant’s to relief under cel of district court determinations second, entitled to relief under defunct that a movant is residual clause. As to the See, e.g., Wojcieszak v. United Johnson. it creates a standard under which the mov- (S.D. Fla. F.Supp.3d ant must establish that predicate No. 16- Cochran crimes could not remain- (S.D. 22506-CIV, 2017 Fla. WL ACCA, ing clause of the without allowing 16, 2017), report and recommenda June him argue predicate that his crimes do 16-22506-CIV, adopted, tion No. 2017 WL qualify not under the elements clause (S.D. 2017); 19, July Fla. Givens v. 3085336 based on binding Supreme prece- Court CAS, States, No. United 4:16-CV-1143 dent.2 (E.D. 15, 2016), 2016 7242162 Mo. Dec. WL at The case hand is illustrative of this 17-1199, dismissed, appeal No. 2017 WL ‘conflict, particularly regard with to the 8, 2017); v. Cir. Feb. Nichols prong By artificially first of Johnson. de- States, No. 1:04-CR-68-TRM-CHS- lineating argu- what constitutes a Johnson (E.D. Tenn. Oct. 2016 WL 5921780 by disposing peti- ment—and of Beeman’s 2016); Wilson, No. CR 96- United States reaching required tion without the second (D.D.C. Apr. WL showing for success on a Johnson claim— States, Shabazz v. United No. 3:16- majority elides all of Beeman’s ele- (D. (SRU), 2017 WL 27394 Conn. CV-1083 arguments ments-clause from their John- 3, 2017); No. Jan. Memoli United analysis, leaving son with Beeman “insuffi- (JSR), 04CR140 2017 WL 3559190 regarding cient” assertions (S.D.N.Y. 11, 2017), July report and rec clause, court’s reliance on the residual adopted part, in No. 16-CV- ommendation majority rejects. which the peremptorily (S.D.N.Y. (JSR), 2017 WL 3504918 In doing, majority up so has set 2017). Aug. regarding straw man Beeman’s Johnson “timeli- Though presented as a distinct arguments they proceed then holding, majority’s misapprehen- ness” knock down. Descamps arguments of Beeman’s di- sion majority opinion’s The discussion rectly impacts analysis the Court’s on the merits of Beeman’s Johnson claim starts merits of his Johnson claim. As set out accurately off on the track. It ex- above, prevail in order to on a Johnson relief, that, plains in order to obtain Bee- claim, a movant must first establish that “(1) [ man must show the] sentenced under the residual he was solely court relied on the residual clause” predi- must that his and then show “(2) there were not at least three [ ] cate crimes could not prior other convictions that could have portion precluding of the ACCA. But qualified under elements or the enu- [the Descamps support in of a discussion felony, or as clauses as violent merated] motion contrives an issue with Johnson drug goes It on to serious offense.” regard required showings. to both of these appropriate proof, discuss the burden of an ave- prong, As to the first forecloses states that a movant must first demon- that, evidentiary nue of in support instances, likely strate that it is “more than not” that conclusively could demonstrate a now- the residual sentencing court’s reliance on the he was sentenced under clause out, case, permitted rely majority correctly points only Beeman 2. As the Des- not is camps Descamps arguing did not articulate a new rule of consti- that he is entitled to law, "merely is, fact, ex- relief, tutional but rather clarified required but he isting Mays precedent.” v. United do so. F.3d If to obtain relief under Johnson. whether they relying are' on the residual order however, ques- or the paths diverge, Our on the clause elements clause.... [and] [sjecond, may practical how that standard be met. there was no reason for tion of judges to make this distinction at sentenc approaching question, this I do When prior to ing June when the Su deci- not write on blank slate. Previous preme Court decided that the residual posited sions of this Court have Burgess vagueness.”); clause void that has test been consis- “clear/unclear” v. United CR493-205, No. 2017 WL tently applied answering precise when (S.D. 27, 2017), at Apr. *3 n.9 Ga. the Johnson context on appli- report adopted, and recommendation No. cations for leave to file a second or succes- (S.D. CR493-205, 2017 WL 2834492 Ga. test, petition. sive habeas Under (“Movant’s 29, 2017) only June burden is Johnson “implicated” when the sentenc- to show that—absent a clear record—the ing specify statutory court did not sentencing judge may have used the resid qualifying predicates for the basis and James, clause.”); United States v. ual No. precedent establishing there is no that the (D. 06-20172-JWL, 2016 3936495 WL Kan. predicates would under one of the Hamilton, 21, 2016); United States v. July Rogers, ACCA clauses. In re remaining (N.D. F.Supp.3d 2017); 235 1229 Okla. (11th 2016) 1335, (citing, 825 F.3d 1339 Cir. Williams v. United No. Adams, In re others, among F.3d at 825 ERW, (E.D. 4:16CV00993 2017 WL 895910 1284). circumstances, In such “courts must v. 7, 2017); Thrower United Mo. Mar. apply Descamps binding and other Su (E.D.N.Y. 2017); F.Supp.3d 234 372 precedent preme determining Court Wolf, United States v. 1:04-CR-347-1, No. prior sup whether a conviction would still (M.D. 31, 2016); 2016 WL 6433151 Pa. Oct. port an enhanced ACCA sentence.” Id. Ballard, United States v. 03-810, No. CR logically justification— no There is sound (E.D. 10, 2017); July 2017 WL 2935725 Pa. by majority—for and offered none is Givens v. United No. 4:16-CV-1143 discarding the paradigm and clear/unclear (E.D. CAS, 2016 WL 7242162 Mo. Dec. approaching differently claim 2016), dismissed, 17-1199, appeal No. of an initial petition.3 the context habeas (8th 2017). WL Cir. Feb. Indeed, many district courts across the country decisions, however, have adopted approach Even absent these it Johnson claims on evaluating initial any habe- is clear that alternative to this test—in words, petitions sentencing any with an unclear standard under which an See, Booker, e.g., United States record. precludes unclear record relief (D.D.C. F.Supp.3d 167-68 Mar. under Johnson—would lead to unwarrant- 2017) “[f]irst, (noting briefs, judges inequitable are not ed and results. In his required by again law to state at at argument, and- oral Beeman of- claim, applied "galekeeping” given 3. As in the context aof on the merits of a Johnson that a petition, pur- petitioner only second or successive habeas entitled to relief under that pose permit prove of the test is to decision if he is able to that he was clear/unclear petitioner prove right constitutionally pro- a constitutional sentenced under a infirm such, necessarily in a previous relief circumstance where "it vision of the ACCA. As reasoning is unclear whether the on a con- court relied of this Court in cases such as In re Chance, Adams, stitutionally constitutionally Rogers, valid or a invalid In re In re and Geozos, legal theory.” United States others—as well as the decisions of the other (9th 2017 WL *4 F.3d at courts cited both instructive and infra—is inquiry precisely highly persuasive deciding Cir. That same the issue before ruling that must be when answered us. Chance, example [sentencing] from In Re: movant for a fered court’s discre (11th 2016), involving tionary 831 F.3d 1335 Cir. specify choice not to under which defendants, 924(e)(2)(B) two sentenced on the same clause of Section an offense offense, day, by for the same the same qualified felony.” as a violent judge, predicates. with the same ACCA Winston, States v. 850 F.3d rationale, majority’s Under the one 2017) (citing approval with In re bring defendants could a Johnson claim Chance, 831 F.3d see also United judge specified because the that he was Geozos, 890, 894-95, States v. 870 F.3d sentenced under residual but 2017 WL 3712155 (citing not, the other defendant could because the approval Chance, with In re judge language no such used made no 1335). “If Johnson means that an inmate’s specific reference to ACCA sub-clause. companion conviction should not [] have Adopting approach majority of the predicate served as [a offense under the permitting this scenario to in our play out ... then the text of statute] [the statute] unfair, only courts not would be but also longer no authorizes his sentence and his nullify would the retroactive effect of a imprisonment Chance, is unlawful.” In re change pronounced by in the law the Su 1341; Geozos, 831 F.3d at see also preme can see no for predi Court.41 basis (“[W]hen at *4 WL 3712155 at cating a defendant’s relief on the is unclear from the record whether the precision verbiage employed by sentencing court relied on the residual judge, attorney, an or even a defendant clause, necessarily it is unclear whether sentencing, himself at the time of when the the court a constitutionally relied on valid highest court has announced “[t]he constitutionally or a legal theory.”). invalid Johnson, residual clause is invalid under sure, inquiry To be does not end it can or longer so no mandate authorize — there. sentencing When record is in- any sentence.” Welch v. United conclusive, —, a movant must still bear the U.S. (2016).5 such, showing—either through burden of direct L.Ed.2d 387 As it should was, or circumstantial evidence—that he no difference whether the sen “make[] fact, sentenced under the residual clause.6 tencing judge used the words ‘residual clause,’ Indeed, attempted just Beeman has to do clause’ or ‘elements or some simi phrase”; “penalize by demonstrating lar courts should not a that he could not Winston, upon specific finding sentencing, 4. F.3d a at but See also States 2017) (acknowledging rather the absence of a constitutional basis for approach Welch, such an “would result in ‘selective imposed. the sentence 136 S.Ct. at application' of new rule of establishes, constitutional (“Johnson words, in other [], violating law announced in Johnson ‘the impeccable factfinding that 'even the use of principle treating similarly situated defen- legitimate' procedures not a sentence could ”) (internal omit- dants same.' citations clause.”). based on that ted). agree 6.I do not Johnson movant has "[a] observed, recently 5. As this Court has “[i]t to that he to met his burden show has operating assumption a safe that when the § 2255 relief ... unless the record affirma- standard, Supreme Court articulates a it actu tively upon shows that the district court relied ally means the used to set out words has App. Br. at 22. the ACCA's elements clause.” Eddy that standard....” United States Wil Instead, Vail-Bailon, simply an "un- I take the view that mer to, Johnson, clear” record is neither a bar plain In the case of for, language nor sufficient success on the merits of of the decision makes clear that holding predicated under the is not Johnson claim. relief this, any In a like have been sentenced under case where a movant possibly majority attempts satisfy prong other clause of the ACCA. The to the first of whether inquiry through does not reach the circumstantial of circumstantial evidence of reli- type by demonstrating this evidence that he could per- clause should be ance on the residual properly not have been sentenced under because, above, they im- statute, mitted as noted any portion other the first properly categorize arguments these as prongs and second for success on the mer- “untimely Descamps claim” and exclude single inquiry. its coalesce into The fact them from the discussion of Beeman’s single showing that a satisfies both re- Johnson claims.7 relief, however, quirements for Johnson way evidentiary no diminishes burden majority frame- The characterizes this of a movant or otherwise shifts that bur- implicating work as some order of “burden Again, den to the Government. Beeman shifting” long- that would break from prove likely must that it was more than standing precedent regarding a movant’s not that he was sentenced under the resid- obligation to his entitlement to establish ual clause order succeed on his John- constitutional relief and allow unmeritori- claim. I son believe Beeman has done ous claims to succeed. This is not the case. by demonstrating so that he could not rubric, an Under the unclear clear/unclear have been sentenced under record does not entitle a movant to relief. clause of the Because it uneon- ACCA. Instead, it permits bring defendant to qualify tested that Beeman does not Johnson claim and to adduce evidence that the enumerated and because there establishes, conclusively, that he was sen- only ways are two other as a tenced under the residual clause. Far from ACCA, disprov- career offender under the jailhouse opening the doors based on ambi- ing necessarily proof one is of the other. record, guities analysis simply in the Chance, See In Re 831 F.3d at 1340. Bee- gives potentially eligible defendants the showing man’s that he could not have been opportunity prove they are entitled convicted under the elements clause of the where, here, to relief proof require- ACCA8 is therefore of both transcripts documents and record are si- ments for success on the merits of a John- Though may lent. it is true that the courts first, son claim: that he was sentenced peti- have to address some unmeritorious cannot, clause, second, under the residual rule, tions because of this this be predicate offenses could not qualify precluding the basis for access to the under the absent that I provision. ACCA “permitting pro- courts and the criminal upon can ascertain no basis which to ex- point ought cess to rest at a where it type clude this of circumstantial evidence properly repose.” Mackey never evaluating petition, a movant’s habeas U.S. and, above, Harlan, (opinion doing 28 L.Ed.2d 404 of as noted believe so J.). unjustifiable procedural would create an do, however, They clarify qualify 7. that either direct him an ACCA sentence under the language or circumstantial evidence could be used for of the elements clause. As noted at outset, purpose. Maj. Op. question this n.4. fully by See was briefed Parties, agree both who the modified majority categorical approach proper 8. Since the finds that Beeman has is the standard adequately Applying Georgia not established that he was sen- here. that standard to the statute, they aggravated predi- tenced under the residual do not Beeman’s assault predicate likely qualify address the of whether his cate would not as a crime of aggravated Georgia offense of assault in could violence under the elements clause. in which a solely based on the manner bar PITTMAN, Joseph David Petitioner- pronounced.

movant’s sentence Appellant, importance I not take issue with the do judgments legal system in our finality of of efficiency ap- SECRETARY, in the importance or the of DEPART FLORIDA judicial CORRECTIONS, Attorney of resources wherever MENT OF portionment General, Florida, Respon But the of constitu- State possible. vindication dents-Appellees. paramount impor- rights tional must be access impact tance in decisions that No. 15-11807 deciding In to make Johnson to the courts. Appeals, United States Court of

retroactively applicable, Supreme Eleventh Circuit. conflicting these inter- Court considered ests, the convic- and concluded that “where (September in fact is not authorized tion or sentence law, finality interests by substantive then Welch, at their weakest.” 136 S.Ct. at

are I understand the Accordingly,

1266. while identify a

majority’s bright-line desire to through which unmeritorious Johnson

rule engaging can culled without

claims be

predicate-by-predicate determination ACCA, crimes still under the

what

I to a standard that excludes agree cannot process of evalua-

petitioners because I fear that particularly

tion is laborious. practical today’s opinion effect of criminal defendants like Bee- were, fact,

man sentenced under a who

constitutionally infirm be de- statute will

nied their to seek the relief to which by

they may very well be entitled For that

holdings Court.

reason, respectfully I dissent.

Case Details

Case Name: Jeffrey Bernard Beeman v. United States

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 22, 2017

Citation: 871 F.3d 1215

Docket Number: 16-16710

Court Abbreviation: 11th Cir.