A member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting a rehearing en banc, it is ORDERED that this case will not be reheard en banc.
TJOFLAT, Circuit Judge, joined by ED CARNES, Chief Judge, and WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges, concurring in the denial of rehearing en banc.
Two dissents-those by Judges Wilson and Martin-have seized upon this direct appeal case as an opportunity to criticize our Court's processing and publishing of orders on federal prisoners' applications to file successive motions under
These two dissents focus on only prisoners' post-conviction applications to file successive § 2255 motions. To place the subject matter of the dissents in context, it is necessary to describe first (1) the nature of the instant direct-appeal case and (2) how, after a direct appeal, a federal prisoner has yet another post-conviction opportunity
Third, to correct the record about our Court's published orders ruling on such applications, I provide the statistics that show how our Court has published only 1 to 2% of its orders on post-conviction applications to file successive § 2255 motions, even in 2016, the year on which the dissenters focus. Lastly, contrary to what the dissents claim, I discuss how all published orders of this Court are always subject to further review, such as the en banc poll in this very case. As explained below, there simply isn't (nor has there ever been) any crisis about our Court's published orders.
I. INSTANT CASE IS DIRECT CRIMINAL APPEAL
Let's start with what type of proceeding the instant case is and is not. This criminal case is a direct appeal, wherein the appellant-defendant St. Hubert challenges his two federal firearm convictions under
Rather, St. Hubert contends that his admitted Hobbs Act robbery crimes do not qualify as predicate "crimes of violence" under § 924(c)(3) 's definitions.
In doing so, our
St. Hubert
panel pointed out that five other circuits, like our
In re Saint Fleur
published order, had held that Hobbs Act robbery is a crime of violence under § 924(c)(3)(A) 's elements clause.
United States v. Barrett
,
In addition to direct appeals like this case, a federal prisoner has a second post-conviction opportunity to challenge his sentence by timely filing an initial § 2255 motion in the district court. Section 2255(a) provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution orlaws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
In short, as important factual context, the dissents do not address, or complain about, direct appeals or initial § 2255 motions, whereby a federal prisoner already has had two post-conviction opportunities to challenge his sentence. Rather, the dissents ignore those two avenues of redress and are using this direct-appeal case as a vehicle to write about only a third type of post-conviction proceeding: a federal prisoner's application to file a second or successive § 2255 motion pursuant to § 2255(h). I therefore turn to § 2255(h), which restricts prisoners' applications to file successive § 2255 motions.
II. PRISONERS' APPLICATIONS TO FILE SUCCESSIVE § 2255 MOTIONS
After a federal prisoner has used his two post-conviction opportunities to challenge his sentence (through a direct appeal and an initial § 2255 motion), Congress has narrowly and significantly limited the subsequent or successive times a federal prisoner can challenge his final sentence.
Congress imposed these restrictions on successive § 2255 motions in order to achieve finality of federal criminal judgments and to stop an endless flow of post-conviction petitions by federal prisoners in the federal courts.
See
Gonzalez v. Sec'y for Dep't of Corr.
,
Significantly here, Congress required all federal prisoners to get advance permission from a federal appellate court in order to even file a successive post-conviction § 2255 motion in a federal district court.
These substantial restrictions on federal prisoners filing successive § 2255 post-conviction motions are not our rules, but Congress's statutory mandates to federal courts. After a final judgment and an initial § 2255 post-conviction motion, there is no federal court jurisdiction to consider a successive § 2255 motion except for these two limited types of claims specified in § 2255(h).
Although Congress's statutory restrictions on federal court jurisdiction are substantial, the Supreme Court has at times, albeit not often, issued decisions that ultimately fall within the scope of § 2255(h)(2). As an example, in 2015, the U.S. Supreme Court issued its decision in
Johnson v. United States
, which held that the "residual clause" definition of a "violent felony" in the Armed Career Criminal Act ("ACCA") was unconstitutionally vague. --- U.S. ----,
After Johnson invalidated the ACCA's residual clause and as shown by this Court's statistics in Table 1 below, a large number of federal prisoners' applications-2,258 applications in our Court in 2016 alone-were filed seeking leave to file second or successive § 2255 motions based on Johnson 's ACCA ruling about the residual clause. And in 2016, our Court issued 2,282 orders on those 2,258 applications and a few applications carried over from the end of the prior year.
As required by Congress, the prisoners had to file in this Court before filing in the district court and had to show a prima facie case that
Johnson
applied to their sentences. The Court carefully reviewed each and every individual application. The Court determined that some of those federal prisoners who filed were not even sentenced under the ACCA, and
Johnson
did not apply to their cases at all.
See, e.g.
,
In re Griffin
,
In addition, some prisoners claimed the ACCA sentencing decisions in
Johnson
and
Welch
invalidated their sentences (or convictions) under wholly separate federal statutes, such as
The dissents improperly criticize our Court for publishing some of our 2,282 orders in these cases in 2016. However, the dissents ignore that our Court published only 31, or 1.36%, of our large volume of 2,282 orders in 2016. In fact, taking the five-year period from April 1, 2013 to April 1, 2018, 1 our Court published only 1.2% of its orders in § 2255(h) applications.
To accurately show these facts, I include two tables of statistics below, which demonstrate that this Court published a total of 45 orders from April 1, 2013 to April 1, 2018. 2 Given the dissents primarily criticize our 2016 published orders as to applications to file successive § 2255(h) motions, Tables 1 and 2 separate the total 45 published orders by year and category of order: either § 2255(h) or § 2244(b). 3 Table 1 shows that 39 of those 45 orders were published in § 2255(h) applications from April 1, 2013 to April 1, 2018 and that 31 of those 39 orders were published in 2016. Table 2 shows that only 6 of those 45 orders were published in § 2244(b) applications from 2013 to 2018. 4
Table 1: Number of Applications for Leave toFile Successive § 2255(h) in the Eleventh CircuitFor Years from April 1, 2013 to April 1,2018
Year5 § 2255(h) Orders of Published % of Published Applications Terminations Orders 2013 264 273 1 0.37% 2014 219 224 1 0.45% 2015 226 187 4 2.14% 2016 2,258 2,282 31 1.36% 2017 293 294 2 0.68% TOTAL 3,260 3,260 39 1.20%
[ Editor's Note: The preceding image contains the reference for footnote 5 ]
Table 2: Number of Applications for Leave toFile Successive § 2244(b) in the Eleventh CircuitFor Years from April 1, 2013 to April 1, 2018
Year § 2244(b) Orders of Published % of Published Applications Terminations Orders 2013 344 336 1 0.30% 2014 310 316 3 0.95% 2015 320 324 2 0.62% 2016 274 270 0 0.00% 2017 283 290 0 0.00% TOTAL 1,531 1,536 6 0.39%
In 2016 after the
Johnson
and
Welch
decisions, there was a heightened need to publish at least some of these 2,282 orders to establish precedent, to provide consistency in panel rulings in so many cases, and to facilitate the administration of these matters. In some cases, it was not hard to see the right answer. In 2016, 8 of the 31 published orders in § 2255(h) cases granted the applications and 23 denied the applications.
6
Further, the dissents fail to note that in all
pro se
application cases in our Circuit, including every single application in 2016 to file a successive § 2255 motion, our Court's Staff Attorney's Office prepared legal memoranda addressing the
Contrary to the dissents' criticisms, and as Table 1 demonstrates, our Court published a very small percentage of these orders ruling on applications to file successive § 2255 motions. Although our Court published more in 2016 than in other years, largely in the wake of Johnson and Welch , the percentage still stayed exceedingly small at 1.36%. 7 And to be clear, all of this Court's judges-including those who dissent today-have joined in these orders.
Notably too, in 2016 alone, the dissenters-as at least two members of the assigned three-judge panel (and sometimes all three members)-published 14 of their own orders on prisoners' applications to file successive § 2255 motions based on
Johnson
. Thus, the dissenters published 14 of the 31 published orders in 2016. That is roughly 45%.
See
In re Hunt
,
Before that, in 2015, there were only four published orders in such § 2255(h) applications, yet the dissenters, as at least two members of the assigned three-judge panel, published two of those four orders-50% that year.
8
In re Johnson
,
None of the dissents tell the reader this full story. 9
Having placed this subject matter in context, I now turn to the dissents' attacks on our Court's rule: that published panel orders are binding precedent under our prior panel precedent rule.
First, that published panel orders are binding precedent is not a new rule.
See
In re Lambrix
,
Second, the dissenters incorrectly state that our Court's published orders are insulated from further review. Contrary to the dissents, no published panel order in any case in our Court is insulated from further review.
For example, whenever a panel publishes an order in any case in our Court, any one of the active members of this Court can
sua sponte
request an en banc poll in the exact same case asking that the published order be vacated and the case be heard en banc.
See
Lambrix
,
In addition, each and every subsequent case following that initial published order provides a second avenue of review. This direct appeal in St. Hubert's case aptly illustrates this second available avenue of review of binding precedent established in a published panel order.
Here, the
St. Hubert
panel relied on our binding precedent in
In re Saint Fleur
, a published panel order.
St. Hubert
,
Again, the problem for the dissenters is that the law established in the
In re Saint Fleur
published order is sound, and thus the dissenters have been unable to garner the majority votes needed to change that
In re Saint Fleur
precedent by taking
St. Hubert
en banc. Moreover, after our Court's
In re Saint Fleur
published order in 2016, at least seven of our sister circuits have reached the same holding that Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A) 's elements clause.
See
Bowens
,
One dissent also points to, and criticizes by name, eight published orders by our Court from 2016 to 2018 about what constitutes a violent felony under the ACCA or a crime of violence under § 924(c). See Martin, J., dissenting at 14. But as Table 1 above makes obvious, this is a byproduct of the large number of cases that required and received our attention in 2016 to 2018. Surely, the number of published panel orders in 2016 to 2018 should be placed in the context of our 2016 to 2018 caseload in this regard.
It also bears mentioning that since we published these eight orders, other circuits have reached the same conclusions as many of them about what constitutes a violent felony or a crime of violence. For example, in
In re Hines
,
The judges of this Court may have valid differences of opinion about the legal issues involving the ACCA's definition of a violent felony or § 924(c) 's definition of a crime of violence, as discussed in these 31 published orders during 2016 and the 4 published orders during 2015. However, it is incorrect to say, as the dissents do, that binding precedent established in published panel orders of this Court, like In re Saint Fleur , are insulated from all further review. In the wake of Johnson and Welch , the judges of this Court and the Court's dedicated staff attorneys and law clerks worked long hours faithfully reviewing and considering 2,282 prisoners' applications in 2016 alone. This concurrence is done to afford the needed context to the process and our Court's having published 31 orders on those applications to file successive § 2255 motions in 2016. 11
For all of these reasons, I concur in this Court's denial of rehearing en banc (1) as to whether Hobbs Act robbery qualifies as a crime of violence under § 924(c) 's definitions and (2) as to our Court's rule that published panel orders constitute binding precedent. 12
WILLIAM PRYOR, Circuit Judge, respecting the denial of rehearing en banc:
Consider a hypothetical. A defendant is convicted of a federal crime and sentenced
I join Judge Tjoflat's opinion in full, but I write separately to answer our colleague's challenge and to defend our commonsense practice of denying prisoners' applications to file doomed collateral challenges that cannot possibly bring them relief. The basis of our colleague's argument that denying these applications contravenes "the plain mandate" of the Act is not entirely clear. Dissenting Op. of Martin, J., at 1200-01. Her dissent draws an insistent but far from self-explanatory distinction between a "prima facie showing" and a "merits decision," and it suggests that we held in
In re Holladay
,
To vindicate the strong interest in the finality of fully litigated criminal convictions, the Antiterrorism and Effective Death Penalty Act imposes "stringent requirements for the filing of a second or successive [collateral challenge],"
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
Judge Martin's dissent revolves around the three words "prima facie showing," but that phrase does not interpret itself. Often, a "prima facie case" or "prima facie showing" refers to what a plaintiff must prove to shift the burden of proof or production to the defendant.
See
Dissenting Op. of Martin, J., at 1204 (citing
Black's Law Dictionary
for a definition in this vein). The dissent provides as two examples the burden-shifting frameworks that govern claims of racial discrimination in jury selection,
see
Batson v. Kentucky
,
But this formal sense of the phrase "prima facie showing" does not fit section 2244(b)(3)(C). The statutory restrictions on second or successive collateral challenges plainly do not set up a burden-shifting framework. A prisoner's prima facie showing of compliance with section 2255(h) does not create any presumption that the government must rebut with an adequate showing of its own. Indeed, the prima facie showing does not even create a presumption of compliance with section 2255(h) ; the district court approaches that question
de novo
.
See
In re Moss
,
When "prima facie showing" cannot bear a formal definition, it sometimes bears instead a functional meaning. For example, the Board of Immigration Appeals describes the standard for reopening of removal proceedings as requiring "a prima facie showing of eligibility" for the relief sought.
In re L-O-G-
,
Instead, in this context, a prima facie showing is simply whatever "satisf[ies] [the Board] that it would be worthwhile to develop the issues further at a plenary hearing on reopening."
Sipus
,
In the foundational decision about section 2244(b)(3)(C), the Seventh Circuit interpreted it to include a similar "worthwhileness" standard: "By 'prima facie showing' we understand ... simply a sufficient showing of possible merit to warrant a fuller exploration by the district court."
Bennett
,
Although Judge Martin's dissent invokes the
Bennett
-
Holladay
standard to lament the supposed good old days "when this Court honored the statutorily imposed limitations of a prima facie review," Dissenting Op. of Martin, J., at 1206, the Seventh Circuit in
Bennett
did not describe its definition as especially permissive or as one that required courts of appeals to close their eyes to the impossibility of relief. On the contrary, when Donald Bennett sought permission to file a third section 2255 motion under the "newly discovered evidence" gateway for successive motions,
see
Perhaps our colleague would limit the
Bennett
court's willingness to acknowledge that a motion is certainly doomed to the "newly discovered evidence" gateway, but she cannot take that position and eulogize
Holladay
at the same time because
Holladay
followed the same approach with respect to the "new rule" gateway,
Under
Holladay
's sensible regime, a prisoner cannot discharge his prima facie burden merely by invoking a new rule; as we phrased the standard in a later decision, he must also "show a reasonable likelihood that he would benefit from the new rule he seeks to invoke in a second or successive [challenge]."
In re Henry
,
Judge Martin may disagree with
Holladay
-as the Tenth Circuit did in a decision that her dissent cites favorably,
see
Ochoa v. Sirmons
,
The logic of
Holladay
exposes any rigid dichotomy between a prisoner's "prima facie showing" and "the merits" of his claim as untenable. True, whether
Johnson
or any other new rule that a prisoner invokes really supports his claim is a question that relates to "the merits." But it is no less true that a prisoner's prima facie showing must include the demonstration that his motion will "contain,"
There is nothing remotely strange about this partial overlap between a threshold inquiry and the merits. Consider "the somewhat analogous certificate of appealability ... context,"
In re Saint Fleur
,
Even in the
Batson
and Title VII examples-which, as I have explained, do not clarify what section 2244(b)(3)(C) means when it refers to "a prima facie showing"-a plaintiff's prima facie case is not independent of "the merits." If a court rejects a
Batson
claim because the claimant has failed to establish the requisite prima facie showing, nobody would dispute that the court has rejected that claim on the merits.
See
Brown v. Alexander
,
So what remains of Judge Martin's critique after we discard the mistaken premise that merits are merits, threshold inquiries are threshold inquiries, and never the twain shall meet? Her dissent objects to eight published orders because they decided that particular offenses were crimes of violence or violent felonies,
see
Dissenting Op. of Martin, J., at 1206-08, but it never explains how it is inconsistent with our gatekeeping function under section 2255(h) to deny applications based on questions of law-which we usually think it is our job to answer-and a routine examination of judicial records-which we must often wade into in any event to determine whether a motion would indeed be "second or successive."
See
Evans-García v. United States
,
This Court is not the only circuit that has published orders denying prisoners' applications on the ground that
Johnson
could not benefit them because their predicate offenses were crimes of violence.
See
In re Irby
,
The dissent complains that "[t]he members of this Court are bound to treat [our published orders] as binding precedent in this Circuit, unless and until the Supreme Court or this Court sitting
en banc
reverses each of them, one by one," but the same is true of
all
of our precedents. Dissenting Op. of Martin, J., at 1210. Of course, Judge Martin and our other dissenting colleagues are free to disagree with the legal conclusions that panels have reached in the course of denying applications to file second or successive motions. But if they do, they would be better served by trying to persuade the rest of us to reconsider those holdings en banc,
see
Concurring Op. of Tjoflat, J., at 1181-83, than by rehashing their position that we cannot deny the doomed applications of prisoners who cannot achieve relief,
compare, e.g.
, Dissenting Op. of Wilson, J., at 1197-99,
and
Dissenting Op. of Martin, J., at 1202-10,
with
Ovalles v. United States
,
Finally, some of the complaints in Judge Martin's dissent less reflect disagreement with our precedents than dissatisfaction with Congress's policy choices. The dissent laments that the Act gives prisoners only "one chance to collaterally attack their sentence as a matter of right" and that the chance "comes too soon" for some convicts with lengthy sentences, Dissenting Op. of Martin, J., at 1202, but the statutory system of alternating limitations periods constitutes an integral part of Congress's orderly regulation of federal postconviction review,
see
Instead, Congress has decided that collateral litigation, like all things, must eventually come to an end. And we are bound to respect that mandate.
JORDAN, Circuit Judge, concurring in the denial of rehearing en banc.
The panel in this case has held that published orders issued by three-judge
Nevertheless, I have institutional concerns about our recent practice of publishing so many of these orders. I include myself as part of the problematic trend, as I have authored one of these orders,
see
In re Moss
,
* * * * * *
Applications under §§ 2244(b)(2)-(3) and 2255(h) are different in significant respects from the matters usually handled by three-judge panels. Those differences strongly suggest that we should exercise more caution in deciding to publish an order disposing of an application, particularly on substantive issues of first impression.
First, the applications must be decided within 30 days of filing.
See
§ 2244(b)(3)(D). Although this time limit is not mandatory in the jurisdictional sense,
see, e.g.,
In re Davis
,
Second, in this circuit the applications are almost always ruled upon without adversarial participation or briefing. Sometimes we decide only on the basis of a pro se litigant's submission, as supplemented by a staff attorney memorandum. In a system like ours, that means that we may miss something important (e.g., critical parts of the district court record, or an issue we did not think of ourselves) on the quick road to decision and publication.
Third, the applications result in decisions that are not generally reviewable. Pursuant to § 2244(b)(3)(E), orders on applications are not appealable and cannot be the subject of a petition for rehearing or for a writ of certiorari. Panels have on occasion revisited their orders sua sponte (for example, when the staff attorney's office has called a panel's attention to a mistake), but relying on a panel to identify and recognize its own error without assistance from the parties once the application is adjudicated is certainly not the norm in appellate procedure. I recognize that it is an open question whether an order disposing
In sum, when we review and rule on applications pursuant to §§ 2244(b) and 2255(h), "major aspects of the normal appellate process [are] absent."
United States v. Glover
,
* * * * *
In the last five years (2013-18) we lead the country by a significant margin in the number of published orders issued under §§ 2244(b)(2)-(3) and 2255(h). In that five-year period, ending April 1, 2018, we have published 45 such orders, while all of the other circuits combined have published 80 orders. The next closest circuits to ours in publication are the Fifth Circuit with 14 and the Sixth Circuit with 12. The remaining circuits have fewer than 10 each: First Circuit (7); Second Circuit (6); Third Circuit (3); Fourth Circuit (6); Seventh Circuit (8); Eighth Circuit (9); Ninth Circuit (7); Tenth Circuit (7); and D.C. Circuit (1). And a number of the published orders in the other circuits were issued only after adversarial briefing and/or oral argument. 2
Two years ago, in the wake of
Johnson v. United States
, --- U.S. ----,
* * * * * *
Publishing orders issued under §§ 2244(b)(2)-(3) and 2255(h) sometimes makes sense. For example, in
In re Holladay
,
But there are downsides to publishing too many of these orders, which now constitute binding precedent. I hope that in the coming years we will use the publication option sparingly.
First Circuit
Pagan-San Miguel v. United States
,
Evans-Garcia v. United States
,
Butterworth v. United States
,
Pakala v. United States
,
Bucci v. United States
,
Moore v. United States
,
Hardy v. United States
,
Second Circuit
Gallagher v. United States
,
United States v. Redd
,
Herrera-Gomez v. United States
,
Marmolejos v. United States
,
Carranza v. United States
,
Washington v. United States
,
Third Circuit
In re Pendleton
,
United States v. Winkelman
,
In re Hoffner
,
Fourth Circuit
In re Vassell
,
In re Hubbard
,
In re McFadden
,
In re Wright
,
In re Irby
,
In re Phillips
,
Fifth Circuit
In re Kemper
,
In re Campbell
,
In re Coleman
,
In re Jackson
,
In re Young
,
In re Chase
,
In re Williams
,
In re Fields
,
In re Arnick
,
In re Hensley
,
In re Lott
,
In re Cathey
,
In re Dockery
,
In re Rodriguez
,
Sixth Circuit
In re Liddell
,
In re Mazzio
,
In re Watkins
,
In re Embry
,
In re Patrick
,
In re Sargent
,
In re Tibbetts
,
In re Coley
,
In re Conzelmann
,
In re Campbell
,
In re Lee
,
In re Black
,
Seventh Circuit
Croft v. Williams
,
Price v. United States
,
Dawkins v. United States
,
Hill v. United States
,
Morris v. United States
,
Dawkins v. United States
,
Kelly v. Brown
,
Susinka v. United States
,
Eighth Circuit
Williams v. United States
,
Johnson v. United States
,
Woods v. United States
,
Goodwin v. Steele
,
Donnell v. United States
,
Holder v. United States
,
Allen v. United States
,
Davis v. Kelley
,
Williams v. Kelley
,
Ninth Circuit
Jones v. Ryan
,
Hughes v. United States
,
Ezell v. United States
,
Gage v. Chappell
,
Orona v. United States
,
Sherrod v. United States
,
Arazola-Galea v. United States
,
In re Graham
,
In re Weathersby
,
In re Payne
,
In re Gieswein
,
In re Encinias
,
In re Barrett
,
In re Jones
,
Eleventh Circuit
In re Moss
,
In re Morgan
,
In re Hill
,
In re Henry
,
In re Lambrix
,
In re Hill
,
In re Rivero
,
In re Everett
,
In re Starks
,
In re Bolin
,
In re Johnson
,
In re Franks
,
In re Robinson
,
In re Thomas
,
In re Griffin
,
In re Pinder
,
In re Hines
,
In re St. Fleur
,
In re Adams
,
In re Hires
,
In re Rogers
,
In re Colon
,
In re McCall
,
In re Jackson
,
In re Williams
,
In re Parker
,
In re Gordon
,
In re Sapp
,
In re Baptiste
,
In re Clayton
,
In re Smith
,
In re Burgest
,
In re Watt
,
In re Anderson
,
In re Davis
,
In re Gomez
,
In re Sams
,
In re Moore
,
In re Bradford
,
In re Jones
,
In re Chance
,
In re Parker
,
In re Hunt
,
In re Hernandez
,
In re Welch
,
D.C. Circuit
In re Williams
,
WILSON, Circuit Judge, joined by MARTIN and JILL PRYOR, Circuit Judges, joined as to Part II by ROSENBAUM, Circuit Judge, dissenting from the denial of rehearing en banc:
I.
Before the Supreme Court decided
Sessions v. Dimaya
, --- U.S. ----,
The panel has now backed away from some of those holdings. And for good reason-it is difficult to predict what the Supreme Court will do. The Supreme Court in
Dimaya
"demolished" the superficial differences between § 924(c),
Johnson
's ACCA, and
Dimaya
's § 16(b) on which the
St. Hubert I
opinion relied.
1
Likewise, the
Neither
Ovalles II
nor
St. Hubert II
explain what has changed since
Ovalles I
or
St. Hubert I
, or since we first applied the categorical approach to § 924(c) in
United States v. McGuire
,
But Judge Jill Pryor eloquently and thoroughly explained the flaws in the
Ovalles II
opinion, and it is therefore unnecessary to reiterate those points here.
See
Ovalles II
,
II.
What particularly troubles me, however, is the panel's reaffirmation of its rule that published panel orders from the second or successive context bind all panels of this Court, even those deciding fully briefed and argued merits appeals.
See
St. Hubert II
,
This stands in stark contrast to the practices of the other circuits, which often hear oral argument and read particularized government briefs, and which consider the statutory thirty-day time limit to be optional. And, likely recognizing the unenviable process that generates these second or successive orders, all other circuits publish substantially fewer orders than we do. 3 This process also differs greatly from that of our merits appeals, in which we have no time constraints, we have government briefing (and, when issuing a published opinion, we have typically heard oral argument), and we have a full record. Of course, parties may appeal merits decisions to the Supreme Court and may ask for panel or en banc rehearing in this Court.
Incredibly, despite this alarming contrast in process, by declining to take this case en banc, the full Court has ratified the rule that these hastily-written, uncontested orders bind all panels, including merits panels. These super-precedents are not appealable to the Supreme Court, and may not be the subject of a petition for rehearing. Thus, a panel deciding a substantive issue in a published order insulates itself from essentially any review. 4
Such a decision should have weighed greatly on this Court, and it should have been sufficient for en banc consideration. It is inconceivable that this Court would want all motions panels, merits panels, and lower courts in the Circuit to be bound on substantive issues by an order decided on the basis of forty-three words of pro se argument, in under thirty-days, with no avenue of appeal or review. It is similarly inconceivable that this Court would establish this rule without rehearing en banc. Because I cannot support such a rule, I dissent from the denial of rehearing en banc.
Judge Tjoflat takes offense to my dissent, which sheds light on what I believe is an unfair process.
5
Thoughtful and respectful disagreement is essential to our constitutional directive-"[t]he premise of our adversarial system is that appellate courts ... [are] arbiters of legal questions presented and argued by the parties before them."
Carducci v. Regan
,
MARTIN, Circuit Judge, with whom JILL PRYOR, Circuit Judge, joins, dissenting from the denial of rehearing en banc:
Federal judges who decide cases in groups are bound to have differences of opinions about how those cases are decided. I've always understood that it is the discussion of those differing views that furthers the development and evolution of the laws and precedent that govern us all. My understanding does not appear to be unique, because if there is any member of this court who has not written a dissenting opinion, they have not been on this court
As my colleagues have pointed out, this case is the direct appeal of Michael St. Hubert, who was sentenced to serve a 32-year prison sentence in 2016. Although this is Mr. St. Hubert's first opportunity to challenge his conviction and sentence in this court, his opportunity is limited by rulings this court has made in our habeas jurisprudence. So while Mr. St. Hubert is sitting in prison, his case has generated what I view as a healthy discussion of how it came to pass that he will be required to serve the entirety of a sentence that could not be legally imposed upon him if he were sentenced today. Six of the twelve of the active judges on this court have written opinions about Mr. Hubert's case, so it seems to have merited a valuable exchange of viewpoints.
Michael St. Hubert was 37-years-old when he pled guilty to two firearms charges brought against him under
There are several problems with the panel opinion that I believe deserve the attention of the en banc Court. Judge Wilson and Judge Jill Pryor each cogently address some of those problems, and I am privileged to join their dissents in full. See Wilson, J., dissenting op. at 1196-99 (discussing the St. Hubert II panel's troubling reaffirmation of its ruling that published panel orders from the second or successive context bind all panels of this Court); Jill Pryor, J., dissenting op. at 1210-13 (arguing the panel erroneously held attempting a crime of violence itself equates to a crime of violence).
In writing separately, I echo some of my colleagues' concerns. But beyond that, Mr. St. Hubert's case offers a valuable illustration of why I've been concerned about how this Circuit has parlayed the limited authority given it under
I.
Michael St. Hubert pled guilty to two counts of using, carrying, and brandishing a firearm in violation of
His is no pro forma challenge. His appeal raises the now-hot topic, unresolved by the Supreme Court, of whether Hobbs Act robbery and attempted Hobbs Act robbery qualify as violent felonies so as to justify his convictions for using a firearm in connection with "any crime of violence."
For Mr. St. Hubert and others who were convicted of § 924(c) violations within the Eleventh Circuit, the answers to these questions may be especially consequential. Penalties for § 924(c) are notoriously harsh-requiring a 5-to-10-year sentence for a first conviction and a mandatory minimum and consecutive 25-year sentence for a second, and a third, etc.
The panel rejected Mr. St. Hubert's arguments about the nature of his prior convictions. It deemed both his Hobbs Act robbery and attempted Hobbs Act robbery to be crimes of violence under both § 924(c) 's residual clause and its use-of-force clause.
See
St. Hubert II
,
II.
The ruling that causes Mr. St. Hubert to lose his direct appeal is mandated by this court's habeas jurisprudence. For that reason, my discussion will include a brief overview of the remedies available to inmates who are years into serving a long sentence, which they believe should be shortened due to a recent development in the law. Generally, a prisoner suffering under a sentence he contends is illegal must seek relief by way of motion authorized under
And the statute governing this "get permission" process is quite specific. It directs that "[a] motion in the court of appeals for an order authorizing the district court to consider a second or successive application shall be determined by a three-judge panel
The language of this statute simply does not authorize courts of appeal to make merits decisions about the correctness of an inmate's sentence when he is merely seeking permission to file a habeas petition in District Court. A panel presented with a second or successive application is not empowered by the statute to decide in the first instance whether an inmate is entitled to relief. I agree with Judge William Pryor that where Supreme Court or existing Eleventh Circuit precedent already obviously forecloses a prisoner's claim, we should deny his application. But where there is an open merits question, the statute calls for the case to go to the District Court for consideration of that question in the first instance.
I offer the example of a case brought by a man named Stony Lester, because it illustrates how our get-permission process should operate.
See
In re
Stoney Lester
, No. 16-11730-A, slip op. Mr. Lester sought leave to file a second or successive § 2255 motion in light of the Supreme Court's holding in
Johnson
. He sought to challenge his Sentencing Guideline-based, career-offender designation as unconstitutionally vague.
Lester
, No. 16-11730, slip op. at 2. Even though the panel disagreed about whether Mr. Lester would ultimately succeed on his claim, it granted his application.
Two judges on the panel authored concurrences to that order. Judge William Pryor stated Mr. Lester had "made a prima facie showing that he is entitled to relief and that the district court, with the assistance of adversarial briefing must address the merits in the first instance." But Judge Pryor "wrote separately to express [his] view that [Mr.] Lester [wa]s likely
Unfortunately, our Court has not proceeded in this manner for all of these cases. In considering hundreds of applications (particularly since the Supreme Court decided Samuel Johnson's case,
Johnson v. United States
, 576 U.S. ----,
A "prima facie" showing is nothing more than a showing "[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may later be proved to be untrue." Prima Facie,
Black's Law Dictionary
(10th ed. 2014); see also Prima Facie Case,
Black's Law Dictionary
(10th ed. 2014) (defining prima facie case as "[a] party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor."). "Prima Facie" is a term often used in the law, most familiarly in the employment context, and it ordinarily refers to an initial showing of a meritorious claim.
See
Texas Dep't of Comm. Affairs v. Burdine
,
There are many contexts in which courts evaluate whether a case deserves to proceed on the merits by requiring a party to make a prima facie showing. For example, in the context of jury selection, a party can make a prima facie showing of "purposeful racial discrimination" by demonstrating "that the totality of the relevant facts gives rise to an inference of discriminatory purpose."
Batson v. Kentucky
,
Similarly, in employment cases, the prima facie showing is a tool for distributing the burden for producing evidence. A court considering claims of workplace discrimination first looks to the person alleging discrimination to show "actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under Title VII."
Young v. United Parcel Service, Inc.
, 575 U.S. ----,
Judge William Pryor argues that my reference to these examples is misplaced because
For example, a petitioner in the immigration context is required to make a prima facie showing when she is seeking to reopen either her asylum case; a withholding of removal ruling; or a waiver of inadmissibility ruling. And the Board of Immigration Appeals ("BIA") has long made clear that these types of relief "will not be granted unless the [petitioner] establishes a prima facie case of eligibility for the underlying relief sought."
In re S-V-
,
This concern is real for Mr. St. Hubert's appeal too. He presents important (and certainly impactful) questions about whether his prior convictions for Hobbs Act Robbery and attempted Hobbs Act Robbery qualify as crimes of violence (as that term is used in
There was a time when this Court honored the statutorily imposed limitations of a prima facie review. In
In re Holladay
,
I view the Eleventh Circuit as having routinely exceeded its statutory mandate in this regard. Notwithstanding the narrowness of the inquiry authorized by the language of § 2244, this Circuit has regularly and unnecessarily reached beyond the questions of whether an inmate's request to file a § 2255 motion "contain[s]" a new rule,
This Court has now issued hundreds of rulings on the merits of prisoners' claims in the context of their mere application to proceed in District Court. Before Mr. St. Hubert's appeal was decided, this Court published, by my count, eight opinions resolving, on review of an application to file a second or successive § 2255 motion, the important and often difficult question of whether certain offenses are "crime[s] of violence" or "violent felon[ies]" under the elements clauses in § 924(c)(3)(A), (e)(2)(B)(i), or United States Sentencing Guidelines § 4B1.2(a).
See
In re Welch
,
III.
In his concurrence, Judge Tjoflat attempts to mitigate the extent of the harm from this practice by saying that only a few of the orders deciding the merits of claims presented in second or successive applications have been published. Tjoflat, J., concurring op. at 1178. But it is not the number of published opinions I take issue with. I take issue with the practice itself. As Mr. St. Hubert's case illustrates, any
Take for example
In re Smith
, which held for the first time that carjacking in violation of
Judge Tjoflat says my dissenting colleagues and I engage in the very practice we criticize, because we have been on panels that published certain orders on prisoners' applications to file second or successive § 2255 motions. Tjoflat, J., concurring op. at 1179-80. But not one of the 14 orders he points to resolved for the first time a then-open question about whether a certain offense qualifies as a crime of violence or a violent felony under the elements clause of § 924(c)(3)(A), (e)(2)(B)(i), or United States Sentencing Guidelines § 4B1.2(a). None of our opinions bound future panels to grant relief to any prisoner based on their criminal history. To the contrary, eight of the fourteen orders denied the prisoner relief based on a straightforward application of existing Circuit precedent.
In re Hunt
,
The remaining six orders cited by Judge Tjoflat granted the prisoners' applications but did not decide the merits question. We sent the prisoners' cases to the District Court to resolve the unsettled merits question in the first instance.
In re Chance
,
Judge Tjoflat also writes that
St. Hubert II
merely echoed an already-clear rule in our Circuit about how to treat published orders resolving requests for authorization to file a second or successive § 2255 motion. Tjoflat, concurring op. at 1181. But the
St. Hubert II
panel opinion tells us this is not so.
St. Hubert II
decided, once and for all, that merits decisions reached in the second or successive application context are binding precedent on direct appeal.
His criticisms aside, Judge Tjoflat seems to acknowledge our Court has reached beyond merely determining whether an application to file a second or successive § 2255 motion makes the required prima facie showing. He notes for example a series of orders in which "this Court determined that
Johnson
's residual clause holding did not apply to companion § 924(c) crimes and that, even assuming
Johnson
did, the prisoners' crimes qualified under § 924(c) 's elements clause, which likewise was not affected by
Johnson
." Tjoflat, J., concurring op. at 1178. Judge Tjoflat also recognizes that "[i]n 2016 after the
Johnson
and
Welch
decisions, there was a heightened need to publish at least some of these 2,282 orders to establish precedent."
Judge Tjoflat and I disagree on the upshot of this overreach, however. While he may find it comforting that we've exceeded Congress's mandate only sparingly, I do not. Neither do I believe our Court can justify our overreach because the merits decisions we make in this context might match those made by other Circuits after more thorough review. In the same way, I do not share Judge Tjoflat's apparent comfort that we have our Staff Attorney's Office give us advice on merits issues better left to U.S. District Judges to decide.
See
Tjoflat, J., concurring op. at 1179-80, 1183. Finally in this regard, I take no comfort in the backstop of a sua sponte en banc call by an active member of this Court.
See
IV.
The members of this court are bound to treat the
St. Hubert II
panel's holdings as binding precedent in this Circuit, unless and until the Supreme Court or this Court sitting
en banc
reverses each of them, one by one.
See
United States v. Archer
,
Congress gave us a gatekeeping function. We've used it to lock the gate and throw away the key. The full court should have taken up this matter of great consequence. I dissent from its decision not to do so.
JILL PRYOR, Circuit Judge, with whom WILSON and MARTIN, Circuit Judges, join, dissenting from the denial of rehearing en banc:
I join in full Judge Wilson's and Judge Martin's compelling dissents. The institutional (and, possibly, constitutional) problems with treating published panel orders as binding on all subsequent panels are significant and, at a minimum, worthy of en banc review. I write separately to express my disagreement with the panel opinion's holding that an attempt to commit an offense that qualifies under
The statute at issue in Mr. St. Hubert's case,
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The panel opinion considered whether Mr. St. Hubert's conviction for attempted Hobbs Act robbery qualified as a violent felony under
The panel opinion concluded that attempted Hobbs Act robbery qualifies as a predicate offense under § 924(c) 's elements clause.
1
See
St. Hubert
,
But then the opinion concluded: " '[A]n attempt to commit a crime should be treated
Now the legal flaw: the panel's transformation of an attempted offense into an attempt to commit each element of the offense does not align with the actual elements of an attempt offense.
Rothenberg
,
Conviction for an attempt crime also requires an overt act, but that element does not fill the panel opinion's logical gap. We can easily imagine that a person may engage in an overt act-in the case of robbery, for example, overt acts might include renting a getaway van, parking the van a block from the bank, and approaching the bank's door before being thwarted-without having used, attempted to use, or threatened to use force. Would this would-be robber have intended to use, attempt to use, or threaten to use force? Sure. Would he necessarily have attempted to use force? No. So an individual's conduct may satisfy all the elements of an attempt to commit an elements-clause offense without anything more than intent to use elements-clause force and some act (in furtherance of the intended offense) that does not involve the use, attempted use, or threatened use of such force. The panel opinion's conclusion that an attempt to commit a crime of violence necessarily is itself a crime of violence simply does not hold up.
By declining to rehear this case en banc, our court not only ignores the serious institutional concerns my colleagues describe in their dissents, but it also misses the chance to reexamine the panel's flawed logic as to attempt crimes. This missed opportunity perpetuates unlawfully lengthy sentences for people convicted of attempt crimes. And the panel opinion's erroneous holding reaches beyond § 924(c) because this court already has applied that holding to the Armed Career Criminal Act, which increases the sentence for any person convicted of being a felon in possession of a firearm who has three prior convictions for violent felonies or serious drug offenses.
See
Hylor v. United States
,
District courts within our circuit lead the pack in imposing sentences under
This is the five-year period used in Judge Jordan's concurring opinion and Appendix. See Jordan, J., concurring op. at 1194-95.
As used in this opinion, the year is defined as April 1 of the listed year to March 31 of the subsequent year with April 1 as the applicable year date. For consistency, Tables 1 and 2 use the same timeframe and decision dates-April 1 to March 31-as Judge Jordan's Appendix attached to his concurring opinion. Thus, year 2013 is April 1, 2013 to March 31, 2014; year 2014 is April 1, 2014 to March 31, 2015; year 2015 is April 1, 2015 to March 31, 2016; year 2016 is April 1, 2016 to March 31, 2017; and year 2017 is April 1, 2017 to March 31, 2018.
Section 2244(b) governs the filing of successive habeas corpus applications by state prisoners under
To be clear and again for consistency, the 45 total number of our Court's published orders in Tables 1 and 2 below are the same as the number of orders listed in the Appendix of Judge Jordan's concurring opinion, which accurately and helpfully lists all of this Court's published orders in both § 2255(h) and § 2244(b) applications from April 1, 2013 to April 1, 2018. That Appendix combines them, and the tables separate the 45 published orders by category: 39 on § 2255(h) applications and 6 on § 2244(b) applications.
Defined as April 1 of the listed year to March 31 of the subsequent year with April 1 as the applicable year date. See supra note 2. For context, Welch was decided on April 18, 2016, which explains the increased volume of § 2255(h) applications in 2016 ( i.e. , April 1, 2016 to March 31, 2017).
All six of the published § 2244(b) orders involved death penalty cases where appellate counsel represented the defendant. Thus, we primarily focus, as the dissents do, on our published orders in § 2255(h) cases.
There were also four published orders during the 2015 year (April 1, 2015 to March 31, 2016), all of which involved claims based on
Johnson
. Three of those orders denied the applications, and one order held the application in abeyance.
In re Franks
,
We recognize, as Judge Jordan's concurring opinion aptly points out, that other circuits together have published 80 orders on successive applications in this same 5-year time frame and only 20 orders in 2016. Jordan, J., concurring op. at 1191-92. The concurrence properly recommends that our Court should exercise caution in deciding to publish an order disposing of a successive § 2255 application, and "we [should] use the publication option sparingly." Id. at 1192. Given our heavy caseload, Table 1 shows a 1 to 2% publication rate in 2016, which indicates we did so.
See supra notes 4 and 6.
This is not the first time these dissenters have voiced criticisms of the judges of this Court as to its published orders and rulings on
Johnson
-based claims. For example, the dissenters themselves recently published an order denying a state prisoner's application for leave to file a successive § 2254 habeas petition, in which the petitioner argued he had received ineffective assistance of counsel.
See
In re Williams
,
Indeed, in this instant direct appeal case, the panel has not only followed
In re Saint Fleur
, but also has taken time to expand upon why Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A) 's elements clause.
See
St. Hubert
,
In a similar vein, the dissenters have attacked our decisions ruling that
Johnson
applied to the ACCA but not to the advisory sentencing guidelines.
See
In re Hunt
,
Despite these criticisms, the Supreme Court in
Beckles v. United States
, 580 U.S. ----, ----,
Judge Martin's dissent at pages 5-6 criticizes the "stacking" of St. Hubert's two § 924(c) sentences in South Florida. St. Hubert was sentenced to 7 years on his first § 924(c) conviction for using a firearm during a January 21 robbery and to the statutory mandatory consecutive 25 years on his second § 924(c) conviction for using a firearm during a January 27 robbery.
See
St. Hubert
,
The dissent fails to mention that St. Hubert was indicted for 13 crimes, including six separate § 924(c) firearm crimes, five separate armed robberies, and one attempted armed robbery between December 23, 2014, and January 27, 2015.
I am not aware of any rules in other circuits addressing this issue.
The published orders from our court and from the other circuits during this five-year period are listed in the attached appendix.
See
Ovalles v. United States
(
Ovalles II
),
For a more in-depth discussion of these constraints.
See
In re Williams
,
See generally
In re Williams
,
Sua sponte rehearing appears to be the only practically conceivable remedy for a mistake in a published panel order, and it is the remedy often proffered in asserting that these orders "are not beyond all review."
See, e.g.
,
In re Lambrix
,
There is also a theoretical possibility of our certifying a question involving a published order to the Supreme Court,
see
In re Williams
,
So, if a panel declines to correct a mistake in a published panel order, that panel can be overruled only by: (A) sua sponte en banc rehearing by this court-which has happened for one out of more than 10,000 orders; or (B) the Supreme Court's acceptance of a certified question-which has happened four times in the last seventy-two years. This purported backstop is illusory, and it should not be used as a justification for allowing these orders to bind merits panels.
Judge Tjoflat says the dissenters here lack credibility to criticize our Court for publishing Johnson orders when we have done so ourselves. See Tjoflat Op. at 1178-79. He would apparently instead have us effectively forfeit our votes on Johnson entirely-ensuring that the majority's view of Johnson is the only view with the force of binding precedent. But once the Court decided to use published Johnson orders as the vehicle for developing our habeas law, we had little choice. Declining to participate would have abdicated our responsibility to develop Eleventh Circuit law by effectively assigning our votes to our colleagues who continued to insist on publishing such orders.
As the term
St. Hubert II
would indicate, we are not discussing the original opinion issued by the panel ruling on Mr. St. Hubert's direct appeal of his conviction and sentence. The panel originally issued an opinion ruling against Mr. St. Hubert on February 28, 2018.
See
United States v. St. Hubert
,
I do not address the opinion's alternative holding that Mr. St. Hubert's attempted Hobbs Act robbery conviction falls within § 924(c) 's residual clause, a holding that rested upon the en banc Court's decision in
Ovalles v. United States
,
In 2016-the last year for which the United States Sentencing Commission has reported complete data-only the Fourth Circuit's district courts handed down more sentences under § 924(c) than ours did. See United States Sentencing Comm'n, Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System 72-74 (2018). That same year, district courts within our circuit imposed more sentences enhanced under the Armed Career Criminal Act than any other circuit. Id. at 36 (reporting that in 2016 the Eleventh Circuit's district courts handed down 26.6% of ACCA-enhanced sentences, by far the most of any circuit).