Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, July 23, 2019

In re Hammoud: Davis Satisfies the Gatekeeping Criteria in 2255(h) for Successive 2255 Motions

In In re Hammoud, No. 19-12458 (July 23, 2019) (William Pryor, Jordan, Hull) (per curiam), the Court authorized a successive 2255 motion based on Davis.

The Court granted the application as to a 924(c) conviction predicated on solicitation to commit murder.  The Court found that the application was properly stated under Davis, not Johnson or Dimaya.  The Court found that Davis announced a new rule of constitutional law that the Supreme Court has made retroactive.  The Court also found that the application was not barred under In re Baptiste because his earlier unsuccessful applications were based on Johnson/Dimaya, and Davis announed new rule.  Finally, the Court found that he made a prima facie showing that his predicate offense may not satisfy the elements clause, as that was an open question.  But don’t get too excited: the Court went out of its way to add that, in the distirct court, the movant has to satisfy his burden of proof under Beeman to show that the conviction was based solely on the residual clause in 924(c)(3)(B).