Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, July 07, 2020

In re Price: Denying SOS Application Based on Davis and Rehaif

In In re Price, No. 20-12133 (July 7, 2020) (Ed Carnes, Luck, Lagoa), the Court denied a pro se application for leave to file a second or successive 2255 motion based on both Davis and Rehaif.

As for the Davis claim, the applicant challenged his 924(c) convictions predicated on both bank robbery and conspiracy to commit bank robbery.  Although the jury returned a general verdict, and although the Court had not yet determined whether the latter offense remained a “crime of violence” after Davis, it was certain that the jury relied on the former offense, which did remain a “crime of violence” after Davis.  The Court was certain because the district court instructed the jury that it could find him guilty of the 924(c) offense only if it found him guilty of the corresponding bank robbery offense.

As for the Rehaif claim, that decision did not announce a new rule of constitutional law made retroactive by the Supreme Court.  It therefore failed to satisfy the gatekeeping criteria in 2255(h)(2) to file a second or successive 2255 motion.