In re Anthony Johnson: Post-Johnson 2255 motion held in abeyance pending Welch

In In Re: Anthony Johnson, No. 16-10011 (Feb. 26, 2016), the Court ruled that it would keep in abeyance a second or successive 28 U.S.C. § 2255 motion to vacate a sentence pending the Supreme Court’s decision in Welch v. U.S. on whether Johnson v. U.S., 135 S.Ct. 2551 (2015) announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. The Court recognized that 28 U.S.C. § 2244(b)(3)(D) provides that a court “shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.” The Court also recognized that the Supreme Court would not decide Welch within 30 days of the motion. However, the Court held that the 30-day deadline was not mandatory. The Court noted its inherent power to hold cases in abeyance, and the equitable nature of habeas proceedings. The Court also noted the judicial economy of granting all applications held in abeyance in a single order, should the Supreme Court in Welch hold that Johnson applies retroactively to cases on collateral review.

Holmes: "Lascivious" depiction based on intent of video's producer

In U.S. v. Holmes, No. 14-11137 (Feb. 25, 2016), the Court affirmed child pornography possession and production convictions and a 180-month sentence imposed on a stepfather who surreptitiously videotaped his teenage stepdaughter while she was in the bathroom. Holmes claimed that his videotaping was merely the work of a “voyeur” not the production of “sexually explicit conduct” such as “lascivious exhibition of the genitals or pubic area.” Joining other circuits to have so held, the Court concluded that depictions of otherwise innocent conduct may in fact constitute “lascivious exhibition” based on the actions of the individual creating the depiction. The “lascivious exhibition” is not the work of the child, whose innocence is not in question, but of the producer of editor of the video. Holmes’ placement of cameras in the bathroom where his stepdaughter was most likely to be videoed while nude, his extensive focus on capturing images of her pubic area, the angle of the camera set up, and his editing, all created a lascivious exhibition.

Danny: Belated appeal request does not toll habeas limitations period

In Danny v. Sec., Fla. Dep’t of Corrections, No. 14-15522 (Feb. 3, 2016), the Court affirmed the denial of habeas relief, holding that a Florida inmate’s petition for belated post-conviction appeal did not toll the one-year statute of limitations. The Court explained that the statute of limitations is only tolled when an application for “collateral review” is pending in the state courts. But the Court held that an application for a belated appeal is not an application for “collateral review,” as it does not challenge any ruling in the criminal case.

Patterson: Habeas Petition Not Second or Successive

In Patterson v. Sec., Fla. Dep’t of Corrections, No. 12-12653 (Jan. 29, 2016) (2-1), the Court held that a habeas petition was not subject to the restrictions on “second and successive” petitions because the state court had amended the judgment to eliminate a requirement of chemical castration, and the petition was the first habeas petition from this amended judgment. The Court analogized Patterson’s case to Magwood v. Patterson, 561 U.S. 320 (2010) and Insignares v. Secretary, 755 F.3d 1273 (11th Cir. 2014), cases in which an amended judgment meant that the subsequent habeas petition, challenging the amended judgment, was not second or successive.